New South Wales Consolidated Acts

CONVEYANCING ACT 1919 - SECT 78

78 Covenants for title to be implied

(1) In a conveyance there shall in the several cases in this section mentioned be deemed to be included, and there shall in those several cases by virtue of this Act be implied, a covenant to the effect in this section stated by the person or by each person who is therein expressed to convey, as far as regards the subject-matter or share of subject-matter expressed to be conveyed by that person, with the person, if one, to whom the conveyance is expressed to be made, or with the persons jointly, if more than one, to whom the conveyance is expressed to be made as joint tenants, or with each of the persons if more than one to whom the conveyance is expressed to be made as tenants in common (that is to say)--

(A) In a conveyance (other than a mortgage) for valuable consideration executed after the first day of July, one thousand nine hundred and twenty, and before the commencement of the Conveyancing (Amendment) Act 1972 , the following covenant by a person therein expressed to convey as beneficial owner and in a conveyance (other than a mortgage and whether or not for valuable consideration) executed after that commencement the following covenant by a person therein expressed to convey as beneficial owner, namely--

That, notwithstanding anything by the person therein expressed to convey as beneficial owner, or any one through whom the person derives title otherwise than by purchase for value made, done, executed, or omitted, or knowingly suffered the person therein expressed to convey as beneficial owner, has with the concurrence of every other person (if any) therein expressed to be conveying by the person's direction, full power to convey the subject-matter expressed to be conveyed, subject as, if so expressed, and in the manner in which, it is expressed to be conveyed: AND that, notwithstanding anything as aforesaid, that subject-matter shall remain to and be quietly entered upon, received, and held, occupied, enjoyed, and taken by the person to whom the conveyance is expressed to be made, and any person deriving title under that person, and the benefit thereof shall be received and taken accordingly, without any lawful interruption or disturbance by the person therein expressed to convey as beneficial owner, or any person therein expressed to be conveying by the person's direction, or rightfully claiming or to claim by, through, under, or in trust for the person therein expressed to convey as beneficial owner, or any person therein expressed to be conveying by the person's direction, or by, through, or under any one, not being a person claiming in respect of an estate or interest subject whereto the conveyance is expressly made, through whom the person therein expressed to convey as beneficial owner derives title, otherwise than by purchase for value: AND that, freed and discharged from, or otherwise by the person therein expressed to convey as beneficial owner sufficiently indemnified against, all such estates, incumbrances, claims, and demands other than those subject to which the conveyance is expressly made, as either before or after the date of the conveyance have been or shall be made, occasioned, or suffered by that person or by any person therein expressed to be conveying by the person's direction, or by any person rightfully claiming by, through, under, or in trust for the person therein expressed to convey as beneficial owner, or by, through, or under any person therein expressed to be conveying by the person's direction, or by, through, or under any one through whom the person therein expressed to convey as beneficial owner, derives title, otherwise than by purchase for value: AND further, that the person therein expressed to convey as beneficial owner, and any person therein expressed to be conveying by the person's direction, and every other person having or rightfully claiming any estate or interest in the subject-matter of conveyance, other than an estate or interest subject whereto the conveyance is expressly made, by, through, under, or in trust for the person therein expressed to convey as beneficial owner, or by, through, or under any person therein expressed to be conveying by the person's direction, or by, through, or under any one through whom the person therein expressed to convey as beneficial owner, derives title, otherwise than by purchase for value, will from time to time and at all times after the date of the conveyance, on the request and at the cost of any person to whom the conveyance is expressed to be made, or of any person deriving title under that person, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of the conveyance to the person to whom the conveyance is expressed to be made, and to those deriving title under that person, subject as, if so expressed, and in the manner in which, the conveyance is expressed to be made, as by that person or them, or any of them, shall be reasonably required;

(in which covenant a purchase for value shall not be deemed to include a conveyance in consideration of marriage).

(B) In a conveyance (other than a mortgage) of leasehold property for valuable consideration executed after the first day of July, one thousand nine hundred and twenty, and before the commencement of the Conveyancing (Amendment) Act 1972 , the following further covenant by a person therein expressed to convey as beneficial owner and in such a conveyance (other than a mortgage and whether or not for valuable consideration) executed after that commencement the following further covenant by a person therein expressed to convey as beneficial owner, namely--

That, notwithstanding anything by the person therein expressed to convey as beneficial owner or any one through whom the person derives title otherwise than by purchase for value made, done, executed, or omitted or knowingly suffered, the lease or grant creating the term or estate for which the land is expressed to be conveyed, is at the time of conveyance a good, valid, and effectual lease or grant of the property expressed to be conveyed, and is in full force unforfeited, unsurrendered, and in nowise become void or voidable: AND that, notwithstanding anything as aforesaid, all the rents reserved by, and all the covenants, conditions, and agreements contained in, the lease or grant, and on the part of the lessee or grantee, and the persons deriving title under that person, to be paid, observed, and performed, have been paid, observed, and performed up to the time of conveyance;

(in which covenant a purchase for value shall not be deemed to include a conveyance in consideration of marriage).

(C) In a conveyance by way of mortgage executed after the first day of July, one thousand nine hundred and twenty, the following covenant by a person therein expressed to convey as beneficial owner, namely--

That the person therein expressed to convey as beneficial owner has, with the concurrence of every other person (if any) who executes the conveyance and is therein expressed to be conveying by the person's direction, full power to convey the subject-matter expressed to be conveyed by that person, subject as, if so expressed, and in the manner in which, it is expressed to be conveyed; and also that, if default is made in payment of the money intended to be secured by the conveyance or any interest thereon, or any part of that money or interest, contrary to any provision in the conveyance, it shall be lawful for the person to whom the conveyance is expressed to be made and the persons deriving title under that person, to enter into and upon or receive and thenceforth quietly hold, occupy, and enjoy, or take, and have the subject-matter expressed to be conveyed, or any part thereof, without any lawful interruption or disturbance by the person therein expressed to convey as beneficial owner, or any person who executes the conveyance and is therein expressed to be conveying by the person's direction, or any other person not being a person claiming in respect of an estate or interest subject whereto the conveyance is expressly made: AND that, freed and discharged from or otherwise by the person therein expressed to convey as beneficial owner sufficiently indemnified against, all estates, incumbrances, claims, and demands whatever, other than those subject whereto the conveyance is expressly made: AND further, that the person therein expressed to convey as beneficial owner, and every person who executes the conveyance and is therein expressed to be conveying by the person's direction, and every person deriving title under any of them, and every other person having or rightfully claiming any estate or interest in the subject-matter expressed to be conveyed or any part thereof, other than an estate or interest subject whereto the conveyance is expressly made, will from time to time and at all times on the request of any person to whom the conveyance is expressed to be made, or of any person deriving title under that person, but as long as any right of redemption exists under the conveyance, at the cost of the person therein expressed to convey as beneficial owner or of those deriving title under that person, and afterwards at the cost of the person making the request, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter expressed to be conveyed and every part thereof to the person to whom the conveyance is expressed to be made and to those deriving title under that person, subject as, if so expressed and in the manner in which, the conveyance is expressed to be made, as by that person or them or any of them shall be reasonably required.

(D) In a conveyance by way of mortgage of leasehold property executed after the first day of July, one thousand nine hundred and twenty, the following further covenant by a person therein expressed to convey as beneficial owner, namely--

That the lease or grant creating the term or estate for which the land is held is, at the time of conveyance, a good valid and effectual lease or grant of the land expressed to be conveyed and is in full force, unforfeited and unsurrendered, and in nowise become void or voidable, and that all the rents reserved by, and all the covenants, conditions, and agreements contained in the lease or grant, and on the part of the lessee or grantee and the persons deriving title under that person to be paid, observed, and performed, have been paid, observed, and performed up to the time of conveyance: AND also that the person therein expressed to convey as beneficial owner, or the persons deriving title under that person will at all times, as long as any money remains on the security of the conveyance, pay, observe, and perform, or cause to be paid, observed, and performed all the rents reserved by, and all the covenants, conditions, and agreements contained in, the lease or grant, and on the part of the lessee or grantee and the persons deriving title under that person to be paid, observed, and performed, and will keep the person to whom the conveyance is expressed to be made, and those deriving title under that person, indemnified against all actions, proceedings, costs, charges, damages, claims, and demands (if any) to be incurred or sustained by that person or by those deriving title under that person by reason of the non-payment of such rent or the non-observance or non-performance of such covenants, conditions, and agreements, or any of them.

(E) In a conveyance by way of settlement executed after the first day of July, one thousand nine hundred and twenty, the following covenant by a person therein expressed to convey as settlor, namely--

That the person therein expressed to convey as settlor and every person deriving title under that person by deed or act or operation of law, in the person's lifetime subsequent to that conveyance, or by testamentary disposition or devolution in law, on the person's death, will, from time to time and at all times after the date of that conveyance, at the request and cost of any person deriving title thereunder, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter expressed to be conveyed to the persons to whom the conveyance is expressed to be made and those deriving title under them, subject as, if so expressed, and in the manner in which, the conveyance is expressed to be made, as by them or any of them shall be reasonably required.

(F) In a conveyance executed after the first day of July, one thousand nine hundred and twenty, the following covenant by every person therein expressed to convey as trustee, mortgagee, executor or administrator, or in a specified capacity for the time being apt to describe a person having the management and care of the property of a person under mental disability, or under an order of the Court, which covenant shall be deemed to extend to the person's own acts only, namely--

That the person therein so expressed to convey has not executed or done, or knowingly suffered, or been party or privy to, any deed or thing, whereby or by means whereof the subject-matter expressed to be conveyed, or any part thereof, is or may be impeached, charged, affected, or incumbered in title, estate, or otherwise.

This covenant shall be deemed to be implied in every memorandum of discharge indorsed on or annexed to a conveyance by way of mortgage in the same manner as if such memorandum were a deed of conveyance by the mortgagee.

(2) Where, in a conveyance executed after the first day of July one thousand nine hundred and twenty--

(a) a person is therein expressed to be conveying at the direction of another person, and

(b) that other person is therein expressed to have given that direction as beneficial owner,

the same covenant by that other person shall be implied in the conveyance as would be implied therein by the operation of subsection (1) if that other person had been expressed therein to convey as beneficial owner.

(3) Where a conveyance executed after the first day of July, one thousand nine hundred and twenty, is a conveyance by a wife of property not held by her as her separate property and she and her husband are in the conveyance each expressed to convey as beneficial owner, the same covenant by the husband shall be implied in the conveyance as would be implied if he were therein expressed to have, as beneficial owner, directed his wife to convey.

(4) A covenant by a person is not implied by the operation of this section in a conveyance executed after the first day of July one thousand nine hundred and twenty where--

(a) that person is not therein expressed to be conveying as beneficial owner, or as settlor, or as trustee, or as mortgagee, or as executor or administrator, or in a specified capacity for the time being apt to describe a person having the management and care of the property of a person under mental disability, or under an order of the court, or

(b) the conveyance is expressed to be at the direction of that person, but the person--

(i) did not execute the conveyance, or

(ii) is not therein expressed to have given the direction as beneficial owner.

(5) In this section a conveyance does not include a demise by way of lease at a rent.