Settled Land Act 1884

Settled Land Act 1884

This Act may be cited as the Settled Land Act 1884.

This Act shall commence on the first day of January 1885.

Any deed, will, agreement for a settlement, or other agreement, Act, or other instrument, whether made or passed before or after, or partly before and partly after, the commencement of this Act, under or by virtue of which any land, or any estate or interest in land, stands for the time being limited to or in trust for any persons by way of succession, or is so limited that no person is presently entitled beneficially in possession or to the receipt of the rents and profits thereof, creates or is for purposes of this Act a settlement, and is in this Act referred to as a settlement, or as the settlement, as the case requires.

An estate or interest in remainder or reversion not disposed of by a settlement, and reverting to the settlor or any person deriving title under him, is, for purposes of this Act, an estate or interest coming to the settlor or such person under or by virtue of the settlement, and comprised in the subject of the settlement.

Land, and any estate or interest therein which is the subject of a settlement, is for purposes of this Act settled land, and is, in relation to the settlement, referred to in this Act as the settled land.

The determination of the question whether land is settled land for purposes of this Act or not is governed by the state of facts and the limitations of the settlement at the time of the settlement taking effect.

The person who is for the time being under a settlement beneficially entitled to possession of settled land for his life is for purposes of this Act the tenant for life of that land and the tenant for life under that settlement.

If, in any case, there are two or more persons so entitled as tenants in common, or as joint tenants, or for other concurrent estates or interests, they together constitute the tenant for life for purposes of this Act.

A person being tenant for life within the foregoing definitions shall be deemed to be such notwithstanding that under the settlement or otherwise the settled land, or his estate or interest therein, is encumbered or charged in any manner or to any extent.

The persons, if any, who are for the time being, under a settlement, trustees with power of sale of settled land, or with power of consent to or approval of the exercise of such a power of sale, or if under a settlement there are no such trustees, then the persons, if any, for the time being, who are by the settlement declared to be trustees thereof for purposes of this Act, are for purposes of this Act trustees of the settlement.

Capital money arising under this Act, and receivable for the trusts and purposes of the settlement, is in this Act referred to as capital money arising under this Act.

In this Act – building purposes include the erecting and the improving of, and the adding to, and the repairing of buildings; and a building lease is a lease for any building purposes or purposes connected therewith; land includes incorporeal hereditaments, also an undivided share in land; income includes rents and profits; and possession includes receipt of income; rent includes yearly or other rent, and toll, duty, royalty, or other reservation by the hectare, or the tonne, or otherwise; and, in relation to rent, payment includes delivery; and fine includes premium or foregift, and any payment, consideration, or benefit in the nature of a fine, premium, or foregift; securities include Government debentures and any debentures or securities the principal or interest of which is guaranteed by the Government of Tasmania, Treasury Bills, and shares; the Court means the Supreme Court or a judge; timber, unless a contrary intention appears, includes all indigenous and foreign trees, the wood of which is ordinarily used for building or manufacturing purposes, and the bark of such trees, but does not include brushwood, scrub, or underwood; will includes codicil and other testamentary instrument, and a writing in the nature of a will.

A tenant for life –

may sell the settled land, or any part thereof, or any easement, right, or privilege of any kind over or in relation to the same;

may make an exchange of the settled land, or any part thereof, for other land, including an exchange in consideration of money paid for equality of exchange; and where the settlement comprises an undivided share in land, or, under the settlement, the settled land has come to be held in undivided shares, may concur in making partition of the entirety, including a partition in consideration of money paid for equality of partition.

Every sale shall be made at the best price that can reasonably be obtained.

Every exchange and every partition shall be made for the best consideration in land, or in land and money, that can reasonably be obtained.

A sale may be made in one lot or in several lots, but before any sale shall take place by private contract, the lot or lots shall be submitted for sale by public auction.

On a sale the tenant for life may fix reserve biddings and buy in at an auction.

A sale, exchange, or partition may be made subject to any stipulations respecting title or evidence of title or other things.

On a sale, exchange, or partition any restriction or reservation with respect to building on or other user of land or with respect to or for the purpose of the more beneficial working thereof, or with respect to any other thing, may be imposed or reserved and made binding, as far as the law permits, by covenant, condition, or otherwise, on the tenant for life and the settled land, or any part thereof, or on the other party and any land sold or given in exchange or on partition to him.

Settled land in Tasmania shall not be given in exchange for land out of Tasmania.

Where on a sale, exchange, or partition there is an incumbrance affecting land sold or given in exchange or on partition, the tenant for life, with the consent of the incumbrancer, may charge that incumbrance on any other part of the settled land, whether already charged therewith or not, in exoneration of the part sold or so given, and, by conveyance of the fee simple, or other estate or interest the subject of the settlement, or by creation of a term of years in the settled land, or otherwise make provision accordingly.

A tenant for life may lease the settled land, or any part thereof, or any easement, right, or privilege of any kind over or in relation to the same, for any purpose whatever, whether involving waste or not, for any term not exceeding –

in case of a building lease, ninety-nine years;

in case of any other lease, twenty-one years.

Every lease shall be by deed, and be made to take effect in possession not later than twelve months after its date.

Every lease shall reserve the best rent that can reasonably be obtained, regard being had to any fine taken, and to any money laid out or to be laid out for the benefit of the settled land, and generally to the circumstances of the case.

Every lease shall contain a covenant by the lessee for payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified not exceeding thirty days.

A counterpart of every lease shall be executed by the lessee and delivered to the tenant for life; of which execution and delivery the execution of the lease by the tenant for life shall be sufficient evidence.

A statement, contained in a lease or in an endorsement thereon, signed by the tenant for life, respecting any matter of fact or of calculation under this Act in relation to the lease, shall, in favour of the lessee and of those claiming under him, be sufficient evidence of the matter stated.

Every building lease shall be made partly in consideration of the lessee, or some person by whose direction the lease is granted, or some other person having erected, or agreeing to erect, buildings new or additional, or having improved or repaired, or agreeing to improve or repair, buildings, or having executed or agreeing to execute on the land leased an improvement authorized by this Act, for or in connection with building purposes.

A peppercorn rent, or a nominal or other rent less than the rent ultimately payable, may be made payable for the first five years or any less part of the term.

Where the land is contracted to be leased in lots, the entire amount of rent to be ultimately payable may be apportioned among the lots in any manner; save that – the annual rent reserved by any lease shall not be less than $1; the total amount of the rents reserved on all leases for the time being granted shall not be less than the total amount of the rents which, in order that the leases may be in conformity with this Act, ought to be reserved in respect of the whole land for the time being leased; and the rent reserved by any lease shall not exceed one-fifth part of the full annual value of the land comprised in that lease, with the buildings thereon when completed.

Where it is shown to the Court with respect to the district in which any settled land is situate, that it is difficult to make leases or grants for building purposes of land therein, except for a longer term or on other conditions than the term and conditions specified in that behalf in this Act, or except in perpetuity, the Court may, if it thinks fit, authorize generally the tenant for life to make leases or grants of or affecting the settled land in that district, or parts thereof, for any term or in perpetuity, at such rents, secured by condition of re-entry or otherwise, as in the order of the Court expressed, or may, if it thinks fit, authorize the tenant for life to make any such lease or grant in any particular case.

Thereupon the tenant for life, and, subject to any direction in the order of the Court to the contrary, each of his successors in title being a tenant for life, or having the powers of a tenant for life under this Act, may make in any case, or in the particular case, a lease or grant of or affecting the settled land, or part thereof, in conformity with the order.

Where a mining lease is granted under the Mining Act 1929, in respect of any land which is subject to this Act, unless a contrary intention is expressed in the settlement, there shall be set aside, as capital money arising under this Act, part of any compensation received in respect thereof, as follows, namely: Where the tenant for life is impeachable for waste in respect of minerals, three-fourth parts of such compensation, and otherwise one-fourth part thereof, and in every such case the residue of such compensation shall go as rents and profits.

The leasing power of a tenant for life extends to the making of –

a lease for giving effect to a contract entered into by any of his predecessors in title for making a lease which, if made by the predecessor, would have been binding on the successors in title;

a lease for giving effect to a covenant of renewal performance whereof could be enforced against the owner for the time being of the settled land; and a lease for confirming as far as may be of a previous lease, being void or voidable; but so that every lease, as and when confirmed, shall be such a lease as might at the date of the original lease have been lawfully granted under this Act, or otherwise, as the case may require.