Regulation of Providers of Building Works and Miscellaneous Provisions Act 2022

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Provision supplemental to section 41 of Act of 2021

86. The Act of 2021 is amended by the insertion of the following section after section 41:

“41A. (1) Any deed or agreement between the special purpose vehicle and the homeowner which secures the equity share of the special purpose vehicle in a dwelling shall be registrable in the Registry of Deeds as an act of the homeowner affecting the dwelling.

(2) For the avoidance of doubt, the court or, subject to an appeal to the court, the Authority may on an application to it under section 98 of the Act of 1964 make an order or, in the case of an application to the Authority, an entry, under that section inhibiting any registration, on any folio in which a dwelling or any part thereof is registered, under a disposition by, or transmission from, the registered owner without the consent of the special purpose vehicle.

(3) Where, in accordance with the memorandum of agreement referred to in section 41, any deed or agreement between the special purpose vehicle and the homeowner confers a power of sale of the dwelling on the special purpose vehicle (referred to in this section as a ‘power of sale’), the following provisions shall apply:

(a) a sale by the special purpose vehicle professed to be in exercise of the power of sale shall operate to convey the dwelling concerned to the purchaser thereof—

(i) freed from all estates, interests and rights in respect of which the equity share has priority,

(ii) unless discharged by the special purpose vehicle, subject to all estates, interests and rights which have priority over the equity share;

(b) subject to section 51 of the Act of 1964, a conveyance by the special purpose vehicle to a purchaser vests—

(i) the entire estate or interest of the homeowner and the special purpose vehicle in the dwelling in the purchaser freed and discharged from the equity share,

(ii) any fixtures included in the dwelling and the sale in the purchaser.

(4) At any time after the power of sale becomes exercisable, the special purpose vehicle may—

(a) demand and obtain from any mortgagee whose mortgage ranks in priority to the equity share particulars of the moneys secured on such mortgage and any ancillary information reasonably necessary to exercise the power of sale, and

(b) exercise the power of sale notwithstanding any priority of such mortgage.

(5) Where a conveyance is made in professed exercise of the power of sale, the title of the purchaser is not impeachable on the ground that the power of sale was not exercisable or was improperly exercised, and a purchaser thereof is not, either before or on conveyance, required to see or inquire whether the power of sale was properly exercised.

(6) Any person who suffers loss as a consequence of an unauthorised or improper exercise of the power of sale has a remedy in damages against the special purpose vehicle exercising the power.

(7) Moneys received by the special purpose vehicle that arises from the sale of the dwelling concerned shall be applied in the following order:

(a) in discharge of prior incumbrances, if any, to which the sale was not made subject or payment into court of a sum to meet any such prior incumbrances;

(b) in payment of all charges, costs and expenses properly incurred by the special purpose vehicle as incidental to the sale or any attempted sale or otherwise;

(c) in discharge of the equity share and any costs and expenses properly incurred by the special purpose vehicle in any proceedings necessary to recover possession of the dwelling.

(8) Any residue of the money received by the special purpose vehicle after the discharge of the amount due under subsection (7)(c) shall be held by the special purpose vehicle upon the trusts provided for in section 107 (3) of the Land and Conveyancing Law Reform Act 2009 and distributed accordingly.

(9) In this section—

‘Act of 1964’ means the Registration of Title Act 1964 ;

‘Authority’ means the Property Registration Authority;

‘dwelling’ means a dwelling in which a special purpose vehicle purchases an equity share;

‘equity share’ means an equity share referred to in section 41(1);

‘homeowner’ means the owner of a dwelling;

‘special purpose vehicle’ means a special purpose vehicle referred to in section 41(1) and, in relation to any equity share, includes a successor in title of the special purpose vehicle to such equity share.”.