Property (Miscellaneous Provisions) Act

Revision).

not thereby extinguished, released or merged) notwithstanding that the chargee is the obligor.

(2) If, and for so long as, a mortgage, legal or equitable, of a debt or thing in action cannot take effect as such by reason that the intended mortgagee is the obligor, it takes effect as a charge.

the trustee of the trust, and the effect of so doing is that that debtor has an equitable obligation to the beneficiaries on the same terms as the debt to make payment to the trust fund.

Section 4 Property (Miscellaneous Provisions) Act (2022 Revision)

any rule of law that a disposition in favour of illegitimate issue not in being when the disposition takes effect is void as contrary to public policy.

assignor or the assignor’s agent lawfully authorised in writing (not purporting to be by way of charge only) of any debt or thing in action, of which express notice in writing has been given to the person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice — (a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and (c) the power to give a good discharge for the same without the concurrence of the assignor.

(2) If the person liable in respect of such debt or thing in action has notice — (a) that the assignment is disputed by the assignor or any person claiming under that assignor; or (b) of any other opposing or conflicting claims to such debt or thing in action, that person may, if that person thinks fit, either call upon the person making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the Trusts Act (2021 Revision) or any statutory modification or successor thereto.

may be made only — (a) in writing, signed by the person assigning the interest or that person’s agent lawfully authorised in writing; or (b) by will.

(2) However, subsection (1) shall not apply to the creation or operation of a constructive, implied or resulting trust.

Property (Miscellaneous Provisions) Act (2022 Revision) Section 6

interests in land in the Islands, is capable of being evidenced or represented by a bearer instrument such that a disposition thereof may, subject to the terms of the instrument, be effected by delivery of the instrument; but unless so provided by the terms of the instrument the disponer is not relieved of any obligation or liability thereunder.

requires — (a) “month” means a calendar month;

(b) “person” includes a company or corporation;

(c) the singular includes the plural and vice versa; and (d) the masculine includes the feminine and vice versa.

property in joint tenancy in the same manner as if it were an individual; and where a body corporate and an individual, or two or more bodies corporate, become entitled to any such property under circumstances or by virtue of any instrument which would, if the body corporate had been an individual, have created a joint tenancy, they shall be entitled to the property as joint tenants:

Provided that the acquisition and holding of property by a body corporate in joint tenancy shall be subject to the like conditions and restrictions as attached to the acquisition and holding of property by a body corporate in severalty.

(2) Where a body corporate is joint tenant of any property, then, on its dissolution, the property shall devolve on the other joint tenant.

under seal

a deed or an instrument under seal if it satisfies the requirements of this section.

(2) A deed or instrument under seal satisfies the requirements of this section if — (a) it is signed in accordance with subsection (3); and (b) it is either — (i) sealed; or (ii) expressed to be, or is expressed to be executed as, or otherwise makes clear on its face it is intended to be, a deed.

Section 8 Property (Miscellaneous Provisions) Act (2022 Revision)

(3) For the purpose of this section, a deed or instrument under seal may be signed in any manner contemplated by the parties thereto, including, without limitation — (a) by a signature on the complete deed or instrument; or (b) by a signature on any signature page or execution page to the deed or instrument (whether or not the deed or instrument is at such time in final form) which is attached by the individual to (or at the direction of, or on behalf of, the individual, or otherwise with the individual’s authority to) the deed or instrument, if the deed or instrument is (or the signature page or execution page, as the case may be, is) signed either — (i) by the individual in the presence of a witness who attests that individual’s signature; or (ii) at the direction of the individual and in that individual’s presence and the presence of two witnesses who each attests the signature of the person signing on behalf of the individual and that the individual so directed such person to sign.

(3A) Subsection (3) shall apply to deeds or instruments under seal regardless of whether they are made before, on or after the commencement of subsection (3) provided that no deed or instrument made before the commencement of subsection (3) shall be invalid by reason only of any provision of subsection (3).

(4) In this section — (a) a deed or instrument under seal may take the form of an electronic record within the definition of that expression contained in section 2 of the Electronic Transactions Act (2003 Revision); and (b) “sign” in relation to a deed or instrument under seal — (i) where the deed or instrument is written on a tangible medium, includes an individual making that individual’s mark on the deed or instrument, and “signature” is to be construed accordingly; and (ii) where the deed or instrument is in the form of an electronic record, “signature” means an electronic signature as provided by section 19 of the Electronic Transactions Act (2003 Revision), and “sign” shall be construed accordingly.

(4A) During the period commencing on the date of commencement of the Property (Miscellaneous Provisions) (Amendment) Act, 2020 and ending on 16th April, 2022 or at such other date as Cabinet may by Order appoint — (a) where an individual or another person, at the direction of the individual or on behalf of the individual, signs a deed or instrument in the virtual presence of a witness —

Property (Miscellaneous Provisions) Act (2022 Revision) Section 8A

(i) the witness must be able to contemporaneously view the signing of the deed or instrument remotely; and (ii) where the individual signing the deed or instrument is not personally known to the witness, the individual shall present a valid photo identification to the witness contemporaneously;

(b) a person is in the virtual presence of another if, using communication technology, both persons are able to contemporaneously see, hear and speak to each other;

(c) “communication technology” means any electronic device or process that facilitates communication of visual images and audio in real time;

(d) “electronic” means relating to technology having electrical, magnetic, optical, electromagnetic, or similar capabilities, whether digital, analogue or otherwise; and (e) “presence” includes virtual presence.

(5) The provisions of subsections (1) to (4A) are without prejudice to the validity of any instrument under seal validly executed as such whether before or after 23rd November, 1994, as the case may be.

(6) For the avoidance of doubt, subsections (4) and (4A) shall not limit or otherwise affect the application of the Electronic Transactions Act (2003 Revision) to an instrument or to writing, or the signing of an instrument or writing, mentioned in another section of this Act.

(7) The Cabinet may make regulations providing for such matters as may be necessary for giving effect to subsection (4A).

exercising the power.

(2) From the making of the disclaimer — (a) the person cannot exercise the power; and (b) unless the instrument that created the power otherwise provides, anyone else who also held the power immediately before the disclaimer may exercise the power.

(3) In this section — “exercise”, a power, includes joining in its exercise; and “power’ includes a power coupled with an interest.

(a) an instrument (the “empowering instrument”) creates a power;

Section 8C Property (Miscellaneous Provisions) Act (2022 Revision)

(b) the empowering instrument authorises or requires the power to be exercised by deed or another type of non-testamentary instrument (an “instrument of exercise”); and (c) a particular instrument of exercise is executed as a deed in the ordinary way.

(2) The instrument of exercise is, so far as its execution is concerned, taken to be a valid exercise of the power.

(3) Subsection (2) applies even if the empowering instrument expressly requires an instrument of exercise to be executed with an additional or other form of execution or solemnity.

(4) However, subsection (2) shall not affect a requirement under the empowering instrument that, before exercising the power — (a) a particular person’s consent is required; or (b) an act, not relating to the mode of executing an instrument of exercise, is to be performed.

(5) In this section — “executed” includes attested.

repealed to the extent the section applies to the Islands.

charge, mortgage, trust, assignment, bearer instrument or joint tenancy created, given or executed or purportedly created, given or executed before or after 23rd November, 1994 and no such charge, mortgage, trust, assignment, bearer instrument or joint tenancy shall be invalid by reason only of the fact that it was created or purportedly created, given or executed or purportedly created, given or executed prior to 23rd November, 1994.

provisions for Property (Miscellaneous Provisions) (Amendment) Law, 2016

Law in force immediately before the commencement of the Property (Miscellaneous Provisions) (Amendment) Law, 2016 [Law 25 of 2016] (hereinafter referred to as the “amending Law”) shall continue to apply for assignments of debts and things in action before the commencement of the amending Law.

Property (Miscellaneous Provisions) Act (2022 Revision) Section 10

(2) Sections 5A, 6A, 8A and 8B shall only apply for a document made or an event that happens after the commencement of the amending Law.

Publication in consolidated and revised form authorised by the Cabinet this 11th day of January, 2022.

Kim Bullings Clerk of the Cabinet

Property (Miscellaneous Provisions) Act (2022 Revision) ENDNOTES

ENDNOTES Table of Legislation history:

SL # Law/Act # Legislation Commencement Gazette

61/2020 Property (Miscellaneous Provisions) (Amendment) Act, 7-Jan-2021 LG1/2021/s5

53/2020 Citation of Acts of Parliament Act, 2020 3-Dec-2020 LG89/2020/s1

Property (Miscellaneous Provisions) Law (2017 Revision) 31-May-2017 GE45/2017/s29

26/2016 Trusts (Amendment) Law, 2016 23-Nov-2016 GE93/2016/s3

Property (Miscellaneous Provisions) Law (2011 Revision) 7-Nov-2011 G23/2011/s12

14/2011 Property (Miscellaneous Provisions) (Amendment) Law, 2011 27-Apr-2011 GE32/2011/s1

Property (Miscellaneous Provisions) Law (2001 Revision) 26-Feb-2001 G5/2001/s8

7/2000 Electronic Transactions Law, 2000 11-Sep-2000 G19/2000/s2

Property (Miscellaneous Provisions) Law (1999 Revision) 15-Mar-1999 G6/1999/s1

7/1994 Property (Miscellaneous Revisions) Law, 1994 23-Nov-1994 GE23Nov/1994/s2

ENDNOTES Property (Miscellaneous Provisions) Act (2022 Revision)

Property (Miscellaneous Provisions) Act (2022 Revision) ENDNOTES

ENDNOTES Property (Miscellaneous Provisions) Act (2022 Revision)

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