Acts and Regulations

P-19 - Property Act

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Document at 8 September 2015
CHAPTER P-19
Property Act
Repealed
1Repealed: 1997, c.9, s.1
R.S., c.177, s.1; 1997, c.9, s.1
Repealed
2Repealed: 1997, c.9, s.2
R.S., c.177, s.2; 1997, c.9, s.2
Employee benefit plans
3The rules of law and statutory enactments relating to perpetuities do not apply and shall be deemed never to have applied to the trusts of a plan, trust or fund established for the purpose of providing pensions, retirement allowances, annuities, or sickness, death or other benefits to employees or to their widows or widowers, their dependants or their other beneficiaries.
1955, c.66, s.1; 1997, c.9, s.3; 2008, c.45, s.25
APPORTIONMENT
Apportionment of rent, annuity, dividend or periodic payment
4All rents, annuities, dividends and other periodical payments in the nature of income, whether reserved or made payable under an instrument in writing or otherwise, shall be considered as accruing from day to day, and shall be apportionable in respect of time accordingly.
R.S., c.177, s.3
Recovery of apportionment
5The apportioned part of any rent, annuity, dividend or other payment mentioned in section 4, shall be payable or recoverable at the following times and not before:
(a) in the case of a continuing rent, annuity or other such payment when the entire portion, of which such apportioned part forms part, becomes due and payable;
(b) in the case of a rent, annuity or other such payment determined by re-entry, death or otherwise, when the next entire portion of the same would have been payable if the same had not so determined.
R.S., c.177, s.4
Idem
6All persons and their respective executors and assigns, and also the executors and assigns respectively of persons whose interests determine with their own deaths, shall have such or the same remedies for recovering the apportioned parts as aforesaid when payable, allowing the proportionate parts of all just allowances, as they respectively would have had for recovering such entire portions as aforesaid if entitled thereto respectively; but persons liable to pay rents reserved out of, or charged on lands or other hereditaments, and the same lands or other hereditaments shall not be resorted to for any such apportioned part forming part of an entire or continuing rent as aforesaid specifically, but the entire or continuing rent included such apportioned part shall be recovered and received by the executor or other person, who, if the rent had not been apportionable under this Act or otherwise, would have been entitled to such entire or continuing rent, and such apportioned part shall be recoverable from the executor or other person by other parties entitled under this Act to the same, by action in any court of competent jurisdiction.
R.S., c.177, s.5
Definitions
7In sections 4, 5 and 6
“annuities” includes salaries and pensions;(rentes)
“dividends” includes, besides dividends strictly so called, all payments made by the name of dividend, bonus or otherwise, out of the revenue of trading or other public companies, divisible between all or any of the members of these companies, whether the payments be usually made or declared at any fixed times or otherwise, and all such divisible revenue is, for the purposes of this Act, deemed to have accrued by equal daily increment during and within the period for or in respect of which the payment of the same revenue is declared or expressed to be made, but the word “dividend” does not include payments in the nature of a return or reimbursement of capital;(dividendes)
“rents” includes rent service, rent charge and rent seck and all periodical payments or renderings in lieu of or in the nature of rent.(loyers)
R.S., c.177, s.6
No apportionment
8(1)Nothing in sections 4, 5, 6 and 7 contained renders apportionable any annual sums made payable in policies of assurance of any description.
8(2)The provisions of sections 4, 5, 6 and 7 do not extend to any case in which it is expressly stipulated that no apportionment shall take place.
R.S., c.177, s.7
CONTINGENT REMAINDERS
Contingent remainder
9A contingent remainder existing at any time after the commencement of this Act is, and if created before the commencement of this Act shall be deemed to have been, capable of taking effect, notwithstanding the determination by forfeiture, surrender or merger of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened.
R.S., c.177, s.8
CONVEYANCES
Power of aliens, conveyance by grant or livery
10(1)Real and personal property of any description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a Canadian citizen, and a title to real and personal property of any description may be derived through, from or in succession to an alien in the same manner in all respects as through, from or in succession to a Canadian citizen.
10(2)All corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery.
R.S., c.177, s.9
Necessity of deed, tortious operation of feoffment
11(1)A feoffment made after July 1, 1904, is void at law unless evidenced by deed; and a partition, and an exchange of any land, and a lease required by law to be in writing, and an assignment of a chattel interest in any land, and a surrender in writing of an interest in any land, and not being an interest that might by law have been created without writing, made after that date is void at law, unless made by deed.
11(2)A feoffment made after July 1, 1904, shall not have any tortious operation.
R.S., c.177, s.10; 1982, c.3, s.58
Voiding of exchange or partition, interpretation
12(1)An exchange or a partition of land made by deed, executed after July 1, 1904, does not imply any condition in law.
12(2)The word “give”, or the word “grant” in a deed executed after July 1, 1904, does not imply any covenant in law in respect of the land described therein, but nothing herein contained shall be construed to in any wise affect the provisions of section 13.
12(3)In a conveyance, it is not necessary in the limitation of an estate in fee simple to use the word “heirs”, but it is sufficient if the words “in fee simple” are used.
R.S., c.177, s.11
Words “grant, bargain and sell”
13In a conveyance whereby an estate of inheritance in fee simple is limited to the grantee or bargainee and his heirs, the words “grant”, bargain and sell,” therein only amount to a covenant by the grantor or bargainor that he has done no act to encumber the land described in such conveyance; but nothing in this section shall be held or construed to prevent those words from amounting to a conveyance, or to prevent the same from being sufficient to convey and transfer all the right and title of the grantor or bargainor executing such conveyance.
R.S., c.177, s.12
Interest of person not named in indenture, deed purporting to be indenture
14(1)Under an indenture executed after July 1, 1904, an immediate estate or interest in any land, and the benefit of a condition or covenant respecting any land, may be taken although the taker thereof is not named a party to the indenture.
14(2)A deed purporting to be an indenture shall have the effect of an indenture, although not actually indented.
R.S., c.177, s.13
Interest disposed of by deed
15A contingent, an executory, or a future interest, or a possibility coupled with an interest, in any land, whether the object of the gift or limitation of such interest or possibility is or is not ascertained, or a right of entry, whether immediate or future and whether vested or contingent, into or upon any land may be disposed of by deed.
R.S., c.177, s.14
Release of rent charge
16A release from a rentcharge of part of the lands charged therewith does not extinguish the whole rentcharge but operates only to bar the right to recover any part of the rent charged out of the lands released, without prejudice nevertheless to the rights of any person interested in the lands remaining unreleased and not concurring in or confirming the release.
R.S., c.177, s.15
Release of land from judgment
17A release from a judgment of part of any lands charged therewith does not affect the validity of the judgment as to the lands remaining unreleased, without prejudice nevertheless to the rights of any person interested in the lands remaining unreleased, and not concurring in or confirming the release.
R.S., c.177, s.16
Use
18Where by an instrument lands are limited to uses, all uses thereunder, whether expressed or implied by law and whether immediate or future or contingent or executory or to be declared under any power therein contained, shall take effect when and as they arise by force of and by relation to the estate and seisin originally vested in the person seised to the uses, and the continued existence in him or elsewhere of any seisin to uses or scintilla juris, shall not be deemed necessary for the support of or to give effect to future or contingent or executory uses, nor shall any such seisin to uses or scintilla juris be deemed to be suspended or to remain or to subsist in him or elsewhere.
R.S., c.177, s.17
Abolition of estate tail
19Estates tail are abolished, and every estate that would hitherto have been adjudged a fee tail shall be adjudged a fee simple, and if no valid remainder is limited thereon, shall be a fee simple absolute, and may be conveyed or devised by the tenant in tail, or otherwise shall descend to his heirs as a fee simple.
R.S., c.177, s.18
Joint interest
20An estate hereafter created, granted or devised to two or more persons in their own right, shall be a tenancy in common, unless expressly declared to be a joint tenancy; but every estate vested in trustees or executors as such shall be held by them in joint tenancy.
R.S., c.177, s.19
Change of joint trustees
21A change of the trustees in a joint estate, pursuant to the powers of the original trust, does not sever the title, but after the change, the joint tenancy exists in the whole body of the trustees, with all the force and effect of the original trust.
R.S., c.177, s.20
Effect of conveyance
22(1)A conveyance of land shall be deemed to include, and shall by virtue of this Act operate to convey with the land all buildings, erections, fixtures, commons, trees, woods, underwoods, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, hereditaments, appurtenances and advantages whatsoever belonging or in any way appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof; and also if the conveyance is by the beneficial owner and is expressed to be to the grantee and his heirs, all the estate, right, title, interest, inheritance, use, trust, dower, property, profit, possession, claim and demand whatsoever of the grantor, in, to, out of, or upon the same lands, and every part and parcel thereof, with their and every of their appurtenances.
22(2)A conveyance of land, having houses or other buildings thereon, shall be deemed to include, and shall by virtue of this Act operate to convey with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied or enjoyed with, or reputed or known as part or parcel of or appurtenant to the lands, houses or other buildings conveyed, or any of them or any part thereof.
22(3)This section applies only if, and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained.
22(4)This section shall not be construed as giving to any person a better title to any property, right or thing mentioned in this section than the title which the conveyance gives to him to the land expressed to be conveyed, or as conveying to him any property, right or thing mentioned in this section further or otherwise than as the same could have been conveyed to him by the conveying parties.
22(5)This section applies only to conveyances made after July 1, 1904.
R.S., c.177, s.21
Conveyance of land
23(0.1)In this section, “spouse” means a married person.
23(1)Freehold land may be conveyed by a person to himself jointly with another person by the like means by which it might be conveyed by him to another person.
23(2)Freehold land may, in like manner, be conveyed by a spouse to his or her spouse, alone or jointly with another person.
23(3)A person may convey land to or vest land in himself.
R.S., c.177, s.22; 2008, c.45, s.25
Assignment of personalty to self and another
24A person may assign personal property now by law assignable, including chattels real, jointly to himself and another person or other persons by the like means as he may assign the same to another.
R.S., c.177, s.23
Grant of easement, right, liberty or privilege
25A conveyance of freehold land to the use that a person may, for an estate or interest not exceeding in duration the estate conveyed in the land, have any easement, right, liberty or privilege in, or over, or with respect to that land, or any part thereof, operates to vest in possession in that person that easement, right, liberty or privilege for the estate or interest expressed to be limited to him; and he, and the persons deriving title under him shall have, use and enjoy the same accordingly.
R.S., c.177, s.24
Grant of easement, right, liberty or privilege
26(1)A right of way or easement to construct, erect, lay or maintain drains, ditches, pipes, poles, conduits, transmission lines or wires for the conveyance, transmission or transportation of water, electric power, telecommunication, forest products, oil, gas, disposal of sewage or any right of way of a like nature or for any purpose necessary for the operation and maintenance of any undertaking, may be granted, created or acquired, transferred or assigned in favour of the Crown, a Crown corporation, a telephone or telegraph company, a municipality, a local service district, a rural community under the Municipalities Act, a railway, a public utility company or commission, a pulp or timber company or a company authorized to transport oil or gas, or both oil and gas, in the same manner and with the same effect as any other interest in land, notwithstanding that the benefit of the right of way or easement is not appurtenant or annexed to any land of the party acquiring the right of way or easement, or to whom it is transferred or assigned.
26(2)This section applies to all rights of way or easements granted, created or acquired, transferred or assigned before and after its enactment.
26(3)Section 9 of the Easements Act does not apply to prevent the acquisition of an easement for electric power or telecommunication wires or cables.
1967, c.59, s.1; 1994, c.93, s.6
Reservation of legal estate
27(1)A reservation of a legal estate operates without any execution of the conveyance by the grantee of the legal estate out of which the reservation is made, or any regrant by him, so as to create the legal estate reserved and so as to vest the same in possession in the person, whether the grantor or not, for whose benefit the reservation is made.
27(2)A conveyance of a legal estate expressed to be made subject to another legal estate not in existence immediately before the date of the conveyance shall operate as a reservation, unless a contrary intention appears.
R.S., c.177, s.25
INJURY DONE BY
ACCIDENTAL FIRE
Injury done by accidental fire
28(1)No action or process whatever shall be had, maintained or prosecuted against a person in whose house, chamber, stable, barn or other building, or on whose estate a fire accidentally begins.
28(2)Nothing contained in this section shall override, or in any way affect any of the provisions of the Forest Fires Act.
28(3)No contract or agreement made between landlord and tenant shall be defeated or made void by this section.
R.S., c.177, s.26
COVENANTS TO INSURE
Relief against forfeiture
29The Court of Queen’s Bench of New Brunswick has power, upon such terms as it sees fit, to relieve against a forfeiture for breach of a covenant or condition to insure against loss or damage by fire, where no loss or damage by fire has happened and the breach has, in the opinion of the Court, been committed through accident or mistake or otherwise without fraud or gross negligence, and there is an insurance on foot, at the time of the application to the Court, in conformity with the covenant to insure.
R.S., c.177, s.27; 1979, c.41, s.99
Record of relief against forfeiture
30The Court, when relief is granted, shall direct a record of such relief having been granted to be made by endorsement on the lease, or otherwise.
R.S., c.177, s.28
Limitation on court
31The Court shall not, under this Act, relieve the same person more than once in respect of the same covenant or condition, nor grant any relief under this Act where a forfeiture under the covenant in respect of which relief is sought has been already waived out of Court in favour of the person seeking the relief.
R.S., c.177, s.29
Breach of covenant by lessee or mortgagor
32The person entitled to the benefit of a covenant on the part of a lessee or mortgagor to insure against loss or damage by fire shall, on loss or damage by fire happening, have the same advantage from any then subsisting insurance relating to the building covenanted to be insured, effected by the lessee or mortgagor in respect of his interest under the lease or in the property, or by any person claiming under him, but not effected in conformity with the covenant, as he would have from an insurance effected in conformity with the covenant.
R.S., c.177, s.30
Protection of B.F.P.’s
33Where on the bona fide purchase of a leasehold interest under a lease containing a covenant on the part of the lessee to insure against loss or damage by fire, the purchaser is furnished with the written receipt of the person entitled to receive the rent, or his agent, for the last payment of rent accrued due before the completion of the purchase, and there is subsisting at the time of the completion of the purchase an insurance in conformity with the covenant, the purchaser or any person claiming under him shall not be subject to any liability by way of forfeiture or damages or otherwise, in respect of any breach of the covenant, committed at any time before the completion of the purchase, of which the purchaser had not notice before the completion of the purchase; but this provision does not take away any remedy that the lessor or his legal representatives may have against the lessee or his legal representatives for breach of covenant.
R.S., c.177, s.31
Covenants to insure
34Sections 29, 30, 31, 32 and 33 are applicable to leases for a term of years absolute, or determinable on a life or lives, or otherwise, and also to a lease for the life of the lessee or the life or lives of any other persons.
R.S., c.177, s.32
LANDLORD AND TENANT
Necessity of attornment
35Grants or conveyances of any rents, or of the reversion or remainder of lands, shall be good and effectual to all intents and purposes, without any attornment of the tenants of the land out of which such rent issues, or of the particular tenants upon whose particular estates any such reversions or remainders shall and may be expectant or depending, as if their attornment had been had and made; but no tenant shall be prejudiced or damaged by payment of rent to the grantor, or by breach of any condition or non-payment of rent, before notice shall be given to him of such grant by the grantee.
R.S., c.177, s.33
Attornment to stranger
36Every attornment of a tenant of any lands to a stranger claiming title to the estate of the landlord is void, and the possession of the landlord shall not be deemed or construed to be affected in any way by the attornment, but nothing herein contained extends to vacate or affect an attornment made pursuant to, or in consequence of a judgment or an order of The Court of Queen’s Bench of New Brunswick, or made with the privity and consent of the landlord, or to any mortgagee after the mortgage is become forfeited, or under the Landlord and Tenant Act.
R.S., c.177, s.34; 1979, c.41, s.99; 1986, c.4, s.42
MORTGAGES AND CHARGES
Death of mortgagor
37(1)Where a person dies seised, possessed of, or entitled to an estate or interest in land, which shall, at the time of his death, be charged with the payment of a sum of money by way of mortgage or any other equitable charge, including a lien for unpaid purchase money, and such person does not by his will, deed or other document signify a contrary or other intention, the heir, devisee or legatee to whom the land descends or is devised or bequeathed is not entitled to have the sum discharged or satisfied out of the personal estate, or any other real estate of such person, but the land so charged is, as between the different persons claiming through or under the deceased person, primarily liable for the payment of all sums of money with which it is charged, every part thereof according to its value bearing a proportionate part of the sums charged on the whole thereof.
37(2)In the construction of a will, a general direction that all the debts of the testator shall be paid out of his personal estate shall not be deemed to be a declaration of such contrary or other intention, unless such contrary or other intention shall be further declared by words expressly or by necessary implication referring to all or some of the testator’s debts or debt charged on any part of his real estate, nor shall such contrary intention be deemed to be signified by a charge of, or a direction for the payment of, debts upon or out of residuary real or personal estate, or residuary real estate.
37(3)Nothing herein affects or diminishes any right of the person entitled to such sum of money so charged on such lands to obtain full payment or satisfaction of such sum either out of the personal estate of the person so dying or otherwise.
37(4)Nothing contained in this section affects the rights of any person claiming under or by virtue of any will, deed or document made before July 1, 1904.
R.S., c.177, s.35
Assignment of mortgage
38(1)Where a mortgagor is entitled to redeem, he may require the mortgagee, instead of reconveying, and on the terms on which he would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person as the mortgagor directs, and the mortgagee shall be bound to assign and convey accordingly.
38(2)This section does not apply in the case of a mortgagee being or having been in possession.
38(3)This section applies to all mortgages whenever made, and shall have effect notwithstanding any stipulation to the contrary.
R.S., c.177, s.36
Redemption of mortgage in exceptional circumstances
38.1(1)Where a mortgagor desires to redeem a mortgage and the mortgagee or one of several mortgagees cannot be found, or where a sole mortgagee or the last surviving mortgagee is dead and no probate of his will has been granted or letters of administration issued, or where from any other cause a discharge or reconveyance cannot be obtained or cannot be obtained without undue delay and expense, the court on application may permit payment into court of the amount due upon the mortgage and may make an order discharging the mortgage.
38.1(2)The money paid into court, with any accrued interest, shall be paid out of court to the mortgagee or as the court by order may direct.
38.1(3)Where the amount due upon the mortgage appears to be open to question the court may as a condition of making an order discharging the mortgage require payment into court of a sum in excess of the amount admitted to be due, and in such case the additional sum is subject to the further order of the court.
38.1(4)The court may require payment into court of an additional sum to answer any claim by the mortgagee for subsequent costs.
38.1(5)The court on application may make an order discharging a mortgage
(a) where a mortgagee has died and all money due upon the mortgage was paid to him in his lifetime or has been paid to a person entitled to receive the money after his death, or
(b) where in any other case it appears that all money due upon the mortgage has been paid,
and for any reason a discharge or reconveyance cannot be obtained without undue delay and expense.
38.1(6)The court shall require notice of an application under this section to be given to such persons and in such manner as it considers fit.
38.1(7)The court may direct that notice of an order made under this section be given to such persons and in such manner as it considers fit.
38.1(8)An order made under this section discharging a mortgage may be registered in the appropriate registry office.
38.1(9)The registration in the appropriate registry office of an order made under this section discharging a mortgage shall have the effect of cancelling the mortgage and of reconveying to the mortgagor any estate conveyed by the mortgage.
38.1(10)An appeal lies to the Court of Appeal from any order made under this section, or from the refusal to make an order.
1980, c.42, s.1
Redemption of mortgage
39(1)A mortgagor seeking to redeem a mortgage is entitled to do so without paying the money due under any other mortgage made by him, or by any person through whom he claims, on property other than that comprised in the mortgage that he seeks to redeem.
39(2)This section applies only if, and as far as, a contrary intention is not expressed in the mortgage deeds, or one of them.
R.S., c.177, s.37
Definitions
40In sections 38, 38.1 and 39 “mortgage” includes any charge on any property for securing money or money’s worth; “mortgagor” includes a person deriving title under the original mortgagor, or entitled to redeem a mortgage according to his estate, interest or right in the mortgaged property; and “mortgagee” includes a person deriving title under the original mortgagee.
R.S., c.177, s.38; 1980, c.42, s.2
Action by mortgagor
41In any action brought by a mortgagor, his heirs, executors or assigns, no defendant except the mortgagee, his devisee, executor or assigns, shall set up the mortgage to bar the right of recovery, or defeat the title of the mortgagor, his heirs, executor or assigns.
R.S., c.177, s.39
Abolition of doctrine of tacking
42No mortgage, judgment or other encumbrance on land shall have priority by reason of being held by or vested in a person who has a prior registered mortgage or encumbrance of the same land.
R.S., c.177, s.40
Repayment to joint mortgagee
43(1)Where in a mortgage or an obligation hereafter made for the payment of money or a transfer of mortgage or of such obligation, the sum, or any part of the sum, advanced or owing is expressed to be advanced by or owing to more than one person, out of money, or as money belonging to them on a joint account, or where a mortgage, or such an obligation, or such a transfer is made to more than one person, jointly, and not in shares, the mortgage money, or other money or money’s worth, for the time being, due to those persons on the mortgage or obligation, shall be deemed to be and remain money or money’s worth belonging to those persons on a joint account, as between them and the mortgagor or obligor, and the receipt in writing of the survivors or last survivor of them, or of the personal representatives of the last survivor, shall be a complete discharge for all money or money’s worth for the time being due, notwithstanding any notice to the payer of a severance of the joint account.
43(2)This section applies only if and as far as a contrary intention is not expressed in the mortgage, or obligation, or transfer, and shall have effect subject to the terms of the mortgage, or obligation, or transfer, and to the provisions therein contained.
R.S., c.177, s.41
Powers of mortgagee
44(1)A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, have the following powers to the like extent as if they had been in terms conferred by the mortgage deed, but not further, namely:
(a) a power, when the mortgage money or any interest thereon has become due, to sell, or to concur with any other person in selling, the mortgaged property or any part thereof, and either together or in lots, by public auction or by private contract, subject to such conditions respecting title or evidence of title or other matter as the mortgagee thinks fit, with power to vary any contract for sale, and to buy in at auction, or to rescind a contract for sale and to resell, without being answerable for any loss occasioned thereby;
(b) a power, at any time after the date of the mortgage deed, to insure and keep insured against loss or damage by fire any building or any effects or property of an insurable nature, whether affixed to the freehold or not, being or forming part of the mortgaged property, and the premiums paid for any such insurance shall be a charge on the mortgaged property in addition to the mortgage money and with the same priority, and with interest at the same rate, as the mortgage money.
44(2)The provisions of this Act relating to the foregoing powers, comprised either in this section, or in any subsequent section regulating the exercise of those powers, may be varied or extended by the mortgage deed, and, as so varied or extended, shall as far as may be operate in the like manner and with all the like incidents, effects and consequences as if such variations or extensions were contained in this Act.
44(3)This section applies only if, and as far as, a contrary intention is not expressed in the mortgage deed, and shall have effect subject to the terms of the mortgage deed, and to the provisions therein contained.
44(4)The power given to a mortgagee in subsection (1) “to buy in at auction” is a power to buy for his own benefit and to his own use.
44(5)In this and in sections 45, 46, 47 and 48 the words “mortgage,” “mortgagor,” and “mortgagee,” shall respectively have the like meaning as defined in section 40.
R.S., c.177, s.42
When power of sale exercised
45(1)A mortgagee shall not exercise the power of sale conferred by section 44 unless
(a) Repealed: 1986, c.73, s.3
(b) at least four weeks in advance of the sale, he has served upon the mortgagor or he has mailed by registered or certified mail addressed to the mortgagor at the latest address of the mortgagor known to the mortgagee, notice in writing specifying the time and place of sale, and
(c) notice of the sale has been published weekly for four consecutive weeks in some daily or weekly newspaper having general circulation in the county within which the lands lie, or in the case of chattels personal, where the mortgage is recorded or filed, and in the case of lands, by printed handbills, one of which has been posted in or on the court house, one at, in or on the registry office, and one in some public place in the city, town or parish in which the lands are situate.
Publication of notice of sale
45(2)Where, under this section or under the terms of any mortgage deed, a notice of sale is required to be published in a newspaper, the publication of the notice in such newspaper once each week for the period during which the notice is required to be published, shall be deemed a sufficient publication of the notice in such newspaper.
Description of mortgaged premises
45(3)In a notice of sale under this section, or under the terms of a mortgage deed, unless a contrary intention is expressed in the deed, it is not necessary to publish a full description of the mortgaged premises as set out in the mortgage, but any description from which the premises can be readily identified is sufficient.
R.S., c.177, s.43; 1954, c.68, s.1; 1975, c.46, s.1; 1979, c.58, s.1; 1986, c.73, s.3
Conflict of laws
46(1)Unless they have expressly otherwise agreed or expressly otherwise agree, the parties to every obligation, the payment and performance, or either of them, which is secured in whole or in part by a mortgage of or charge upon real estate, the whole or part of which is in the Province, shall be conclusively presumed to have intended that the law of New Brunswick shall govern such obligation, including the performance thereof, and the measure of the amount of payment thereunder.
46(2)This section applies to every obligation incurred, whether such obligation is due, accruing or past due, that is not fully and completely discharged.
R.S., c.177, s.44
Effect of power of sale
47(1)A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from all estate, interests and rights to which the mortgage has priority, but subject to all estates, interests and rights that have priority to the mortgage.
47(2)Where a conveyance is made in professed exercise of the power of sale conferred by section 44, the title of the purchaser is not impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorized or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power.
47(3)The money which is received by the mortgagee arising from the sale shall be held by him in trust to be applied by him:
(a) in the first place in payment of all costs, charges and expenses, properly incurred by the mortgagee as incident to the sale or any attempted sale of the mortgaged premises;
(b) in the second place in discharge of all unpaid money and interest secured by the mortgage;
and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorized by the person so entitled to give receipts for the proceeds of the sale thereof.
47(4)The power of sale conferred by section 44 may be exercised by any person for the time being entitled to receive and give a discharge for the mortgage money.
47(5)The power of sale conferred by section 44 does not affect the right of foreclosure.
47(6)The mortgagee, his executors, or assigns, shall not be answerable for any involuntary loss happening in or about the exercise or execution of the power of sale conferred by section 44, or of any trust connected therewith.
47(7)When the power of sale conferred by section 44 has become exercisable, the person entitled to exercise the same may demand and recover from any person, other than a person having in the mortgaged property an estate, interest, or right in priority to the mortgage, all the deeds and documents relating to the property, or to the title thereto, that a purchaser under the power of sale would be entitled to demand and recover from him.
R.S., c.177, s.45
Money arising from sale under power of sale
48(1)The receipt in writing of a mortgagee is a sufficient discharge for any money arising from a sale under the power of sale conferred by section 44, or for any money or securities comprised in his mortgage, or arising thereunder, and a person paying or transferring the same to the mortgagee need not inquire whether any money remains due under the mortgage.
48(2)Money received by a mortgagee under his mortgage or from the proceeds of securities comprised in his mortgage shall be applied in like manner as in this Act directed respecting money received by him arising from a sale under the power of sale conferred by section 44; but with this variation, that the costs, charges, and expenses payable shall include the costs, charges, and expenses properly incurred of recovering and receiving the money or securities, and of conversion of securities into money, instead of those incident to sale.
R.S., c.177, s.46
Insurance effected under mortgage deed
49(1)The amount of an insurance effected by a mortgagee against loss or damage by fire under the power in that behalf conferred by this Act shall not exceed the amount specified in the mortgage deed, or, if no amount is therein specified, then shall not exceed two-third parts of the amount that would be required, in case of total destruction, to restore the property insured.
49(2)An insurance shall not, under the power conferred by this Act, be effected by a mortgagee,
(a) where there is a declaration in the mortgage deed that no insurance is required,
(b) where an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage deed, or
(c) where the mortgage deed contains no stipulation respecting insurance, and an insurance payable by the contract of insurance to the mortgagee, in case of loss, is kept up by or on behalf of the mortgagor, to the amount to which the mortgagee is by this Act authorized to insure.
49(3)All money received on an insurance effected under the mortgage deed, or under this Act, shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received.
49(4)Without prejudice to any obligation to the contrary imposed by law, or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the money due under his mortgage.
R.S., c.177, s.47
Foreclosure after death of mortgagor
50(1)Where there is no legal personal representative of a deceased mortgagor of freehold property, it is sufficient for the purposes of an action for the foreclosure of the equity of redemption in, or for the sale of, the property that the person beneficially entitled to the property or the proceeds thereof, under the last will and testament if any, or the intestacy, be made defendant to such action, and it is not necessary that a legal personal representative of the deceased mortgagor be appointed or made a defendant thereto unless it is otherwise ordered by the Court in which the action is brought, or by a judge thereof; but if, during the pendency of the action, the equity of redemption devolves upon and becomes vested in a legal personal representative of the mortgagor he shall be made a party to the action.
50(2)In subsection (1) the word “mortgagor” includes the assignee of a mortgagor and any person entitled to or interested in the equity of redemption.
R.S., c.177, s.48
Workers’ Compensation Act
51(1)Notwithstanding anything contained in any statute or law of the Province, no lien for assessments or judgments thereon under the Workers’ Compensation Act shall have or take priority over any mortgage on real estate registered prior to their assessment.
51(2)For the purpose of this section “real estate” includes any term of years in land.
1960, c.59, s.1; 1966, c.89, s.1; 1981, c.80, s.29
POWERS
Validity of power of appointment
52No appointment that, from and after the commencement of this Act, is made in the exercise of any power to appoint any property, real or personal, amongst several objects shall be invalid on the ground that an unsubstantial, illusory or nominal share only is thereby appointed to, or left unappointed to, devolve upon any one or more of the objects of the power, or on the ground that any object of the power has been altogether excluded; but every such appointment shall be valid, notwithstanding that any one or more of the objects shall not thereby, or in default of appointment, take more than an unsubstantial, illusory or nominal share of the property subject to the power.
R.S., c.177, s.49
Idem
53Nothing in section 52 prejudices or affects a provision in a deed, will or other instrument creating a power to appoint that declares the amount of the share from which no object of the power shall be excluded.
R.S., c.177, s.50
Idem
54Nothing in sections 52 and 53 shall be construed, deemed or taken to give any other validity, force or effect to any appointment than the appointment would have had if a substantial share of the property affected by the power had been thereby appointed to, or left unappointed to, devolve upon any object of the power.
R.S., c.177, s.51
Release or contract out of power
55(1)A person to whom a power, whether coupled with an interest or not, is given, may by deed release or contract not to exercise the power.
55(2)A person to whom a power, whether coupled with an interest or not, is given may, by deed, disclaim the power, and, after disclaimer, is not capable of exercising or joining in the exercise of the power.
55(3)On such disclaimer, the power may be exercised by the other, or the survivors of the other, persons to whom the power is given, unless the contrary is expressed in the instrument creating the power.
R.S., c.177, s.52
POWERS OF ATTORNEY
Irrevocable power of attorney
56(1)If a power of attorney, given for valuable consideration, is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser,
(a) the power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, lunacy, mental incompetency or bankruptcy of the donor of the power,
(b) an act done at any time by the donee of the power, in pursuance of the power, is as valid as if anything done by the donor of the power without the concurrence of the donee of the power had not been done, or the death, marriage, lunacy, mental incompetency or bankruptcy of the donor of the power had not happened, and
(c) neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice of anything done by the donor of the power without the concurrence of the donee of the power, or of the death, marriage, lunacy, mental incompetency or bankruptcy of the donor of the power.
56(2)This section applies only to the powers of attorney created by instruments executed after July 1, 1904.
R.S., c.177, s.53
Power of attorney for less than one year
57If a power of attorney, whether given for valuable consideration or not, is in the instrument creating the power expressed to be irrevocable for a fixed time therein specified, not exceeding one year form the date of the instrument, then in favour of a purchaser,
(a) the power shall not be revoked, for and during that fixed time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by death, marriage, lunacy, mental incompetency or bankruptcy of the donor of the power,
(b) any act done within that fixed time by the donee of the power, in pursuance of the power, is as valid as if anything done by the donor of the power without the concurrence of the donee of the power had not been done, or the death, marriage, lunacy, mental incompetency or bankruptcy of the donor of the power had not happened, and
(c) neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice either during or after that fixed time of anything done by the donor of the power, during that fixed time, without the concurrence of the donee of the power, or of the death, marriage, lunacy, mental incompetency or bankruptcy of the donor of the power within that fixed time.
R.S., c.177, s.54
Effect of termination of power of attorney
58(1)Where a power of attorney is terminated or revoked or becomes invalid, any subsequent exercise of the power of attorney is valid and binding as between the donor of the power of attorney or the estate of the donor and any person, including the donee of the power of attorney, who acted in good faith and without notice of the termination, revocation or invalidity.
58(2)Where money is paid or property is transferred in the exercise of a power of attorney to which subsection (1) applies, nothing in subsection (1) affects the right of any person entitled to the money or property against the person to whom the payment or transfer is made, and the person so entitled has the same remedy against the person to whom the payment or transfer is made as the person would have had against the person making the payment or transfer.
R.S., c.177, s.55; 1989, c.31, s.1
Definitions
58.1In sections 58.2 to 58.6
“Administrator of Estates” Repealed: 2005, c.P-26.5, s.30
“court” means The Court of Queen’s Bench of New Brunswick;(cour)
“mental incompetence” means mental incompetence of such a nature that it would, but for section 58.2, terminate a power of attorney;(incapacité mentale)
“psychiatric facility” means psychiatric facility as defined in the Mental Health Act;(établissement psychiatrique)
“Public Trustee” means the Public Trustee appointed under the Public Trustee Act.(curateur public)
1987, c.44, s.1; 2005, c.P-26.5, s.30
Mental incompetence of donor
58.2(1)The authority conferred upon a donee by a power of attorney is not terminated where the donor suffers from mental incompetence after the creation of the power of attorney if the power of attorney
(a) contains a provision that expressly allows it to be exercised during such incompetence,
(b) is signed by the donor, or signed in the name of the donor by another person in the presence and at the direction of the donor, and
(c) is witnessed by an adult person other than the donee.
58.2(2)The provision referred to in paragraph (1)(a) may be revoked by the donor at any time that the donor does not suffer from mental incompetence.
1987, c.44, s.1
Mental incompetence of donor
58.3The authority conferred upon a donee by the provision referred to in paragraph 58.2(1)(a) is terminated
(a) when a court appoints a committee of the estate of the donor,
(b) when the Public Trustee becomes committee of the estate of the donor pursuant to subsection 38(1) of the Mental Health Act, or
(c) when another person is substituted for the donee under section 58.6.
1987, c.44, s.1; 2005, c.P-26.5, s.30
Mental incompetence of donor
58.4Where a power of attorney contains the provision referred to in paragraph 58.2(1)(a), the court may, upon application by the donee of the power at a time when the donor suffers from mental incompetence, vary the donee’s powers in respect of managing and administering the estate of the donor if it is in the best interests of the estate of the donor.
1987, c.44, s.1
Mental incompetence of donor
58.5(1)Where the donor of a power of attorney containing the provision referred to in paragraph 58.2(1)(a) suffers from mental incompetence,
(a) any person having an interest in the estate of the donor,
(b) the Public Trustee, where it appears to be in the best interests of the donor or the estate of the donor, or
(c) any other person permitted by the court
may, during the period of incompetence, apply to the court for an order requiring the donee to pass accounts in respect of transactions which involved an exercise of the power during the period of incompetence of the donor, and the court may so order.
58.5(2)Where an order is made under subsection (1) requiring the donee to pass accounts, the procedure upon the passing of accounts is the same as that provided in the Rules of Court in relation to the passing of accounts of committees of the estates of infirm persons.
1987, c.44, s.1; 2005, c.P-26.5, s.30
Mental incompetence of donor
58.6Where the donor of a power of attorney containing the provision referred to in paragraph 58.2(1)(a) suffers from mental incompetence,
(a) any person having an interest in the estate of the donor,
(b) the Public Trustee, where it appears to be in the best interests of the donor or the estate of the donor,
(c) the donee, on giving fifteen days written notice to the Public Trustee and to all persons having an interest in the estate of the donor, or
(d) any other person permitted by the court
may, during the period of incompetence, apply to the court for an order substituting another person for the donee named in the power of attorney, and the court may so order.
1987, c.44, s.1; 2005, c.P-26.5, s.30
Mental incompetence of donor
58.7Sections 58.2, 58.3, 58.4, 58.5 and 58.6 apply in respect of a power of attorney that contains the provision referred to in paragraph 58.2(1)(a) notwithstanding any agreement or waiver to the contrary.
1987, c.44, s.1
SURETY
Surety
59(1)A person who, being a surety for the debt or duty of another or being liable with another for any debt or duty, pays the debt or performs the duty is entitled to have assigned to him, or to a trustee for him, every judgment, specialty or other security which is held by the creditor in respect of such debt or duty, whether the judgment, specialty or other security is or is not deemed at law to have been satisfied by the payment of the debt or performance of the duty; and such person is entitled to stand in the place of the creditor, and to use all the remedies and, if need be and upon a proper indemnity, to use the name of the creditor in any action or other proceeding in order to obtain from the principal debtor or any co-surety, co-contractor or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person who shall have so paid the debt, or performed the duty, and such payment or performance so made by the surety shall not be a bar to any such action or other proceeding by him.
59(2)No co-surety, co-contractor or co-debtor shall be entitled to recover from any other co-surety, co-contractor or co-debtor, by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last mentioned person is justly liable.
R.S., c.177, s.56
VENDORS AND PURCHASERS
Purchase of reversionary interest
60(1)No purchase made bona fide, and without fraud or unfair dealing, of any reversionary interest in real or personal estate shall be opened or set aside merely on the ground of undervalue.
60(2)The word “purchase” in this section includes every kind of contract, conveyance or assignment under or by which any beneficial interest in any kind of property may be acquired.
R.S., c.177, s.57
Effect of death on agreement for sale
61(1)Where, at the death of a person, there is subsisting a contract enforceable against his heir or devisee, for the sale of the fee simple or other freehold interest, descendible to his heirs, in any land, his personal representatives may convey the land for all the estate and interest vested in him at his death, in any manner proper for giving effect to the contract.
61(2)A conveyance made under this section does not affect the beneficial rights of any person claiming under any testamentary disposition, or as heir or next of kin of a testator or intestate.
R.S., c.177, s.58
Purchaser’s rights respecting execution of conveyance
62On a sale of land, the purchaser is not entitled to require that the conveyance to him be executed in his presence or in that of his solicitor as such, but is entitled to have, at his own cost, the execution of the conveyance attested by some person appointed by him, and may, if he thinks fit, appoint his solicitor.
R.S., c.177, s.59
Payment of consideration to vendor’s attorney
63Where a solicitor produces a deed, having in the body thereof or endorsed thereon a receipt for consideration money or other consideration, the deed being executed or the endorsed receipt being signed by the person entitled to give a receipt for that consideration, the deed is sufficient authority to the person liable to pay or give the consideration for his paying or giving the same to the solicitor, without the solicitor producing any other authority in that behalf from the person who executed the deed or signed the receipt.
R.S., c.177, s.60
PROBATE OF WILL IN SOLEMN FORM, EFFECT OF, AS TO LANDS
Probate of will in solemn form, effect of, as to lands
64(1)Where probate of a will is granted in solemn form by The Probate Court of New Brunswick, the probate shall enure for the benefit of all persons interested in the real estate affected by the will, and the probate copy of the will, or the letters of administration with the will annexed, or a copy thereof respectively, stamped with the seal of The Probate Court of New Brunswick shall, in all courts and in all suits and proceedings affecting real estate, save proceedings by way of appeal under the Probate Court Act or for the revocation of such probate or administration, be received as conclusive evidence of the validity and contents of the will, in like manner as a probate is received in evidence in matters relating to the personal estate.
64(2)Where, on application to prove a will in solemn form, by judgment or order of The Probate Court of New Brunswick probate is refused or revoked on the ground of the invalidity of the will, such judgment or order shall enure for the benefit of the heirs or other persons against whose interest in real estate the will might operate, and that will shall not be received in evidence in any suit or proceeding in relation to the real estate, save in a proceeding by way of appeal from such judgment or order.
R.S., c.177, s.61; 1986, c.4, s.42; 1987, c.6, s.87
PENSION PLANS — APPOINTMENT OF
BENEFICIARIES
Repealed
65Repealed: 1982, c.R-10.21, s.7
1982, c.R-10.21, s.7
Repealed
66Repealed: 1982, c.R-10.21, s.7
1974, c.38 (Supp.), s.1; 1982, c.R-10.21, s.7
N.B. This Act is consolidated to December 19, 2008.