Jersey R & O 8759
Building Loans (Jersey) Law 1950
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BUILDING LOANS (MISCELLANEOUS PROVISIONS) (AMENDMENT No. 24)
(JERSEY) REGULATIONS 1994
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(Promulgated on the 26th day of November 1994)
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STATES OF JERSEY
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The 23rd day of
November 1994
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THE STATES, in pursuance of Articles 5,
5A and 15 of the Building Loans (Jersey) Law 1950, as amended, have made the following Regulations –
1. In
Regulation 1 of the Building Loans (Miscellaneous Provisions) (Jersey)
Regulations 1961, as amended
(hereinafter referred to as “the principal Regulations”), for
sub-paragraph (a) there shall be substituted the following sub-paragraph
–
“(a) either
–
(i) in
the case of a loan granted for a purpose specified in sub-paragraphs (a) to (f)
of Article 3 of the Law, he was granted consent to purchase the land on which
the loan is to be secured under any of paragraphs (a) to (h) inclusive, or
sub-paragraph (n), of paragraph (1) of Regulation 1 of the Housing (General
Provisions) (Jersey) Regulations 1970, as amended, or
(ii) in
the case of a loan granted for the purpose specified in sub-paragraph (g) of
Article 3 of the Law, that, if he had applied for it, he would have been
granted consent to purchase land under any of the provisions of the Housing
(General Provisions) (Jersey) Regulations 1970, as amended, referred to in the
foregoing clause;”.
2. In
Regulation 6 of the principal Regulations –
(a) in
paragraph (3), for the words “three per cent in the case of a loan made
under these Regulations” there shall be substituted the words “the
relevant minimum rate described in paragraph (3B) of this Regulation”;
(b) after
paragraph (3A) there shall be inserted the following paragraph –
“(3B) In
paragraph (3) of this Regulation, the “relevant minimum rate” means
–
(a) three
per cent. –
(i) in
the case of a loan made before the first day of January 1995 or pursuant to a
letter of offer of a loan issued by the Committee before that date, and
(ii) in
the case of a loan made on or after the first day of January 1995 secured on a
house which is a lot, or on shares in a company which confer an exclusive right
to occupy a company-owned dwelling which is a self-contained part of a
building; and
(b) five
per cent. in any other case.”.
3. In
Regulations 2 and 3 of the the principal Regulations for the words
“sub-paragraph (a), (b), (c) or (d)” there shall be substituted the
words “sub-paragraph (a), (b), (c), (d) or (g)”.
4. Regulation
7 of the principal Regulations shall be renumbered as paragraph (1) of that
Regulation and –
(a) in
paragraph (1) before the word “Schedule” there shall be inserted
the word “First”; and
(b) after
paragraph (1) there shall be inserted the following paragraph –
“(2) A
security agreement which makes provision for a security interest to secure a
loan under these Regulations shall be substantially in the form set out in the
Second Schedule to these Regulations.”.
5. In
the Schedule to the principal Regulations –
(a) for
the heading “SCHEDULE”
there shall be substituted the heading “FIRST SCHEDULE”; and
(b) for
the heading “(Regulation 7)”
there shall be substituted the heading “(Regulation 7(1))”.
6. After
the First Schedule to the principal Regulations there shall be inserted the
following Schedule –
“SECOND
SCHEDULE
(Regulation 7(2))
FORM OF SECURITY AGREEMENT TO SECURE
LOAN
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THIS SECURITY AGREEMENT dated
the [ ] of
[ ] is made
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between
[A.B.]
of [
] (who, whether one or
more, is or are in this agreement referred to as “the
Debtor”)
of the one part
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[C.D.]
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authorized for and on behalf of the STATES OF
JERSEY by virtue of an Act dated the [
] day of [
]
of the Housing Committee of the States
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of the other part:
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WHEREAS –
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(A)
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the Debtor has applied to the
Housing Committee for a loan to be made from the Dwelling-House Loan Fund of
the States to assist him in the purchase of shares in a company which upon
purchase will entitle him to occupy a company-owned dwelling;
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(B)
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in the exercise of its powers under
the Building Loans (Jersey) Law 1950 and the Building Loans (Miscellaneous
Provisions) (Jersey) Regulations 1961, the Housing Committee has approved the
making of a loan to the Debtor out of that Fund in the amount and on the
terms stated in the Letter of Offer and subject to the terms of this
agreement:
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NOW THEREFORE IT IS AGREED as follows –
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1. Interpretation
1.1 In
this agreement unless the context requires otherwise –
“the certificate of title to the Collateral” means the
certificate or certificates described in Part I of the Second Schedule;
“the Collateral” means all those shares of the Company
described in Part I of the Second Schedule;
“the Committee” means the Housing Committee;
“the Company” means the limited liability company
incorporated in the Island of Jersey described in Part II of the Second
Schedule;
“the company-owned dwelling” means the dwelling
described in Part I of the Third Schedule;
“event of default” means an event which is constituted
as such by Clause 7;
“the Law” means the Security Interests (Jersey) Law
1983;
“the Letter of Offer” means the letter of offer issued
by the Committee to the Debtor and accepted by him, a copy of which is annexed
to and forms part of the First Schedule;
“the Obligation” means –
(a) all
the obligations of the Debtor to repay the loan moneys and pay all interest due
and to become due thereon upon the terms of and as evidenced by the Letter of
Offer; and
(b) all
covenants, undertakings and other obligations on the part of the Debtor arising
under the terms of the Letter of Offer or this agreement;
“the Property” means –
(a) where
the company-owned dwelling comprises the whole of a corps de bien-fonds owned by the Company, the company-owned
dwelling; or
(b) where
the company-owned dwelling comprises part only of a corps de bien-fonds owned by the Company, the corps de bien-fonds described in Part I of the Fourth Schedule.
1.2 A
reference in this agreement to the Debtor where the context allows includes a
reference to his heirs, executors, administrators or successors.
1.3 Where
more than one Debtor is a party to this agreement, their obligations,
undertakings and liabilities are joint and several.
1.4 Where
the context allows words used in this agreement have the same meaning as in the
Law.
1.5 The
provisions of the Interpretation (Jersey) Law 1954 shall apply, with any
necessary modifications, to this agreement as if it were an enactment.
1.6 A
reference to an enactment is a reference to that enactment as in force for the
time being.
1.7 A
reference in this agreement to a Clause or Schedule or Part of a Schedule by
number only and without further identification is a reference to the Clause,
Schedule or Part of a Schedule of that number in this agreement.
2. Creation of security interest
With the intention of creating a security interest the Debtor [has
delivered, and he hereby acknowledges that he has delivered, to the Committee
possession of the certificate of title to the Collateral OR hereby assigns to the
States title to the Collateral] and by virtue thereof, subject to the
provisions of the Law, there shall be created a security interest in the
Collateral in favour of the States for the purpose of securing payment and
performance by the Debtor of the Obligation.
3. Interest
The Debtor will pay interest on the loan moneys at the rate fixed
by Article 5(2) of the Building Loans (Jersey) Law 1950 or, where another rate
is from time to time and for the time being fixed by Order made under that
Article, at that other rate and will pay such interest on the days and in the
manner required from time to time by the Committee and in the event that
payments are not made punctually, such interest shall be compounded with rests
on the days on which payments are to be made.
4. Licence to Debtor to occupy
4.1 Where,
in Clause 2, the Debtor has assigned to the States title to the Collateral, the
Committee grants to the Debtor an exclusive licence to occupy the company-owned
dwelling as his sole or principal place of residence for the period and upon
the terms and conditions of this agreement.
4.2 The
licence granted by Clause 4.1 shall subsist until –
(a) the
Royal Court shall make an order under Article 8(4) of the Law following the
happening of an event of default; or
(b) the
security interest created by this agreement shall be discharged in accordance
with Article 7 of the Law;
whichever event shall first occur.
5. Representations, undertakings and covenants
for title by the Debtor
5.1 The
Debtor represents and undertakes to the Committee that –
(a) the
Debtor owns and has good title to the Collateral;
(b) all
the shares comprising the Collateral are fully paid shares;
(c) the
Collateral is not subject to any encumbrance other than the security interest
which is the subject of this agreement;
(d) by
virtue of his ownership of the Collateral the Debtor is, subject only to the
terms of this agreement, entitled to occupy the company-owned dwelling; and
(e) the
Debtor has full power and entitlement to create the security interest in the
Collateral and to enter into this agreement and the Debtor will not at any time
seek to assert the contrary or dispute or deny any right or title of the
Committee or the States to the Collateral;
(f) the
Company owns and has good title to –
(i) the
company-owned dwelling; and
(ii) where
the company-owned dwelling comprises part of the Property, the Property;
(g) the
company-owned dwelling is not subject to any hypothec, interest or other
encumbrance except as specified in Part II of the Third Schedule; and
(h) the
Property is not subject to any hypothec, interest or other encumbrance except
as specified in Part II of the Fourth Schedule.
5.2 The
Debtor covenants with the Committee that –
(a) where,
in clause 2, the Debtor has assigned to the States title to the Collateral, the
Debtor will execute any documents and do any such things as are in the opinion
of the Committee necessary to vest in the States or its nominee title to the
Collateral;
(b) where
the security interest has been created by the Debtor in favour of the States by
delivery to the Committee of possession of the certificate of title to the
Collateral, the Debtor will forthwith after receiving notice from the Committee
to grant to the States or its nominee title to the Collateral execute all
documents and do all such things as are in the opinion of the Committee
necessary to vest in the States or its nominee title to the Collateral;
(c) the
Debtor will pay all sums due in respect of the Collateral and all the costs of
vesting the title to the Collateral in the name of the Committee or a nominee
of the Committee and in the event that the Debtor fails to do so, the Committee
is authorized to make such payments on behalf of the Debtor who agrees to repay
on demand all sums so paid with interest thereon at the rate payable on the
loan moneys; and
(d) the
Debtor will not do or permit or suffer any other act or thing that may reduce
the value of the Collateral or impair the security afforded by the security
interest created under this agreement without the prior consent of the
Committee and then only in accordance with and to the extent permitted by the
terms of the consent.
5.3 The
Debtor acknowledges that so long as the security interest which is the subject
of this agreement subsists he is not at liberty to make any transfer,
withdrawal, nomination or other disposition of the Collateral or any part of it
without the prior consent of the Committee, and any such consent shall not
constitute a waiver of this agreement as regards any balance of the Collateral
remaining subject to this agreement following such transfer, withdrawal,
nomination or other disposition.
5.4 Where
the Debtor shall have created a security interest in the Collateral by delivery
to the Committee of possession of the certificate or certificates of title to
the Collateral, the Debtor hereby authorises the Committee to deliver to the
Company a copy of this agreement and authorises the Company to acknowledge in
writing to the Committee that it has received the copy of this agreement and
that such delivery constitutes notice to the Company of the security interest
constituted in the Collateral and irrevocably instructs the Company, for so
long as the security interest created by this agreement subsists, not to issue
a further or substitute certificate or certificates of title to the Collateral
without the prior consent of the Committee.
6. Debtor’s covenants
6.1 The
Debtor covenants with the Committee that during the subsistence of the security
interest created by this agreement, the Debtor shall –
(a) where
title to the Collateral is not vested in the States, neither sell nor otherwise
dispose inter vivos of all or any of
the shares comprising the Collateral except with the consent of the Committee
(which will not be granted where the person to whom the same would be
transferred is, by virtue of any Regulations made under Article 15 of the
Building Loans (Jersey) Law 1950, a person to whom a loan may not be made);
(b) where
title to the Collateral is not vested in the States, not by any act or omission
on his part, except with the prior consent of the Committee and subject to any
conditions attached to such consent, suffer any security interest or other
interest to become charged on all or any of the shares comprising the Collateral
other than the security interest held by the Committee;
(c) pay
punctually all moneys due or to become due in respect of principal and interest
on the loan;
(d) occupy
and reside in the company-owned dwelling as his sole or principal place of
residence and shall not –
(i) let
or part with possession of the company-owned dwelling or any part of it; nor
(ii) leave
it unoccupied for a continuous period exceeding two months,
except with the prior consent of the Committee (which consent shall
not be unreasonably withheld);
(e) take
all reasonable steps available to him to ensure the proper maintenance of, to
the extent to which the Debtor is responsible therefor, the common parts of the
Property;
(f) not
use or permit or suffer the company-owned dwelling to be used for any purposes
other than those of a private dwelling except with the prior consent of the
Committee and then only for such further purposes and to such extent as may be
specified in that consent;
(g) permit
the Committee and its agents or servants to enter the company-owned dwelling at
all reasonable times for the purpose of ascertaining whether the Debtor’s
covenants and any other conditions of this security agreement are being
complied with;
(h) if
and to the extent that ownership of the Collateral acquired with or with the
aid of the loan moneys confers on the Debtor any rights including rights to
vote at any meeting of the Company, not exercise those rights without the prior
consent of the Committee and then only in accordance with such terms and to
such extent as may be specified in that consent;
(j) pay
promptly and in full any call or other payment in respect of the Collateral;
and
(k) pay
punctually all charges and outgoings for services and insurance premiums, in
respect of the company-owned dwelling;
(l) pay
punctually all rates, taxes, assessments and similar charges on the
company-owned dwelling;
(m) keep the
company-owned dwelling and the fixtures and fittings in it in good repair and
condition;
(n) comply
with and perform any obligation or observe any restriction or prohibition
imposed on him by virtue of the articles of association of the Company or any
rules or regulations made by the Company;
(o) not
alter or add to the structure of the company-owned dwelling or any fixtures or
fittings in it without the prior consent of the Committee (which consent shall
not be unreasonably withheld);
(p) within
seven days of its receipt, give notice to the Committee of any notice, order,
process or direction relating to the company-owned dwelling or the Collateral;
(q) promptly
vacate the company-owned dwelling upon the Royal Court making an order under
Article 8(4) of the Law;
(r) promptly
upon any request by the Committee, provide it with copies of all minutes of
meetings of directors, principals or shareholders of the Company and any other
information which he is able to provide relating to the Collateral, the
company-owned dwelling or the Property;
(s) take
all reasonable steps to ensure that the Property is at all times insured with a
reputable insurer against all usually insurable risks, and promptly, upon any
request by the Committee, provide it with evidence of such insurance; and
(t) not
do anything which might render void or voidable any insurance required under
sub-clause (s) or cause the premiums payable in respect of it to be increased.
6.2 In
the event that any payment required to be made by the Debtor in accordance with
any covenant contained in Clause 6.1 is not made by the Debtor promptly as
payment becomes due, the Debtor irrevocably authorizes the Committee to make
such payment on his behalf and the Debtor covenants with the Committee to repay
immediately on demand by the Committee the amount of any payment so made by the
Committee together with interest from the date of such payment at the rate
payable on the loan moneys and the repayment of such interest shall be secured
by the security interest in the same manner as the loan moneys and interest on
the loan moneys.
7. Events of default
The following shall be events of default for the purposes of
Article 8 of the Law: -
(a) any
failure by or on the part of the Debtor to pay or perform the Obligation,
including any failure to –
(i) repay
the loan moneys or pay interest promptly as repayment or payment falls due in
accordance with the terms of the Letter of Offer or this agreement; or
(ii) perform
or observe any covenant, undertaking or other obligation on the part of the
Debtor arising under the terms of the Letter of Offer or this agreement;
(b) the
inaccuracy of any representation by or on the part of the Debtor contained in
this Agreement; or
(c) the
bankruptcy of the Debtor in Jersey or elsewhere or any act, omission, process
or proceeding in Jersey or elsewhere indicative of the insolvency of the
Debtor.
8. Procedure in event of default
8.1 Upon
the occurrence of any event of default the power of sale of the Collateral
conferred by Article 8 of the Law shall arise but shall only be exercisable in
accordance with the provisions of paragraph (3) of that Article after the
Committee has obtained an order of the Royal Court as provided by paragraph (4)
of that Article.
8.2 The
Committee shall not be liable to the Debtor for any failure to distribute the
proceeds of sale of the Collateral in accordance with the Law if the Committee
shall have applied the proceeds on the basis of information known to it at the
time of the distribution and the Committee shall not be under any duty to the
Debtor to make inquiries or to obtain further information.
8.3 The
Committee shall not be liable for any loss to the Collateral whilst it is held
by the States pursuant to this agreement.
9. Miscellaneous
9.1 In
the event of the States or its nominee having title to the Collateral the
Committee or its nominee may exercise at its or his discretion, but without any
obligation or duty to do so and without any liability for failing to do so and
without any further consent or authority from the Debtor, any voting rights
which may be exercised by the person in whose name the Collateral is
registered.
9.2 The
security interest created by this agreement shall not be discharged or affected
by –
(a) any
time, indulgence, waiver or consent at any time and from time to time given
either to –
(i) the
Debtor;
(ii) any
person whose liabilities have been the subject of a guarantee or indemnity by
the Debtor;
(iii) the
Committee by any person to whom the Committee has at the request or on behalf
of the Debtor come under any kind of liability; or
(iv) any
other person;
(b) any
variation, extension or other amendment either to any facility given to the
Debtor or any other person or by any guarantee, indemnity, security or
obligation given or entered into by the Debtor or any other person;
(c) the
making or absence of a demand either on the Debtor or on any person whose
liabilities have been guaranteed by the Debtor or on the Committee by any
person to whom the Committee has at the request or on behalf of the Debtor come
under any kind of liability or any other person;
(d) the
enforcement or absence of enforcement of any debt, liability, facility,
security, guarantee, indemnity or obligation; or
(e) the
death or bankruptcy of the Debtor.
9.3 Any
consent of the Committee referred to in this agreement shall be a consent in
writing and, except as expressly provided otherwise, may be given or withheld
by the Committee in its sole and unfettered discretion.
9.4 Each
provision of this agreement shall be separable and distinct from every other
provision and if at any time any provision or provisions is or are or becomes
or become invalid, illegal or unenforceable then the remaining provisions shall
not be affected in any way.
9.5 The
Debtor will, if and when required to do so, execute such further security
agreement or agreements as the Committee may reasonably require in respect of
the Collateral.
10. Notices
10.1 Any
notice of default pursuant to Article 8(3) of the Law and any other proceeding
or notice arising out of this agreement shall be deemed to have been received
by the Debtor: -
(a) when
delivered to him;
(b) when
delivered to the company-owned dwelling; or
(c) if
posted by ordinary pre-paid mail to him at the address of the company-owned
dwelling, on the day immediately following the posting of the notice.
10.2 In
the case of the death of the Debtor and until the Committee has received
written notice of the grant of probate of the will or administration of the
Debtor’s estate, any notice sent or delivered by the Committee to the
address of the company-owned dwelling shall for all purposes be as effectual as
if the Debtor were still living and had been served with the notice.
AS WITNESS, etc.
FIRST SCHEDULE
(Clause 1.1)
The Letter of Offer
The letter dated [
] from the Committee to the Debtor endorsed as accepted by the Debtor, a
copy of which is annexed and forms part of this Schedule.
SECOND SCHEDULE
PART I
(Clause 1.1)
The Collateral and the certificate of title to the Collateral
[
] fully paid shares of the Company numbered [
] to [
] inclusive, and the certificate numbered [
] of the company in respect of them.
PART II
(Clause 1.1)
The Company
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Name:
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Date of incorporation:
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capital:
[
] shares of [
] each.
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Address of registered office:
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THIRD SCHEDULE
PART I
(Clause 1.1)
The company-owned dwelling
PART II
(Clause 5.1(g))
Hypothecs, interests and other encumbrances
affecting the company-owned dwelling
FOURTH SCHEDULE
PART I
(Clause 1.1)
The Property
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ALL THAT IMMOVABLE PROPERTY [
]
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PART II
(Clause 5.1(h))
Hypothecs, interests and other encumbrances
affecting the Property
„
7. These
Regulations may be cited as the Building Loans (Miscellaneous Provisions)
(Amendment No. 24) (Jersey) Regulations 1994 and shall come into force on the
first day of January 1995.
C.M. NEWCOMBE
Deputy Greffier of the States.