ADIS Code - DM
A discharge of mortgage releases the mortgagor from the obligation upon satisfaction of the debt.
A discharge of mortgage operates as a deed of conveyance of the legal estate held by the mortgagee to the holder of the equity of redemption, ie the mortgagor, except where a subsequent subsisting mortgage is registered in which case the legal estate is vested in the mortgagee of that mortgage.
For a discharge of a mortgage:
Evidence is required where a discrepancy exists between the mortgagee stated in or executing the discharge and shown in the original mortgage. The most common instances are:
Tenancy not disclosed
Where the mortgage:
- does not clearly state the tenancy of the mortgagees, joint tenancy is presumed
- contains a joint account clause, joint tenancy is assumed or
- discloses that the advance was made in shares, tenants in common in those shares is assumed.
Lodgment requirements
Stamp duty - Not required.
Registration copy - Required. If unacceptable, Registration insisted upon is prohibited.
Index Particulars form (completion)
(A) Lodging Party - Registration insisted upon and include the reason.
(B) Instrument - Mortgage - Discharge of
(C) Locality - Not required.
Link Conveyance - Not required.
Principal Deed - The registered affected mortgage.
(D) Indexing - The mortgagor deceased estates or trusts, and any variations thereof.
(E) Certification - Required.
Document requirements
Date: must be dated with the date of execution. If not dated advise the lodging party. If a date is not furnished, indicate Registration insisted upon and include the reason.
Name: the full names (initials are acceptable) of the mortgagee is required. Advise the lodging party of any discrepancies in names.
Operative clause: "... hereby discharges...".
Principal Deed: required. The number of the affected mortgage as stated in the discharge must be identical to the number stated on the IPF.
Execution: by the mortgagee. A power of attorney must be registered. The mortgagor does not have to sign. A solicitor cannot sign on behalf of the mortgagee.
Attestation: required. Must be witnessed by a person of 18 years of age or older who is not a party to the document.
IPF: must be completed.
Staff processing information
- discharged as regards a specific part of the affected land
- being an unregistered mortgage or
- as regards less than all of the mortgagors or mortgagees.
A CA may be raised if the discharge of a mortgage:
- affects Old System land
- is lodged by a private party and
- is the only document lodged.
A discharge as regards less than all of the mortgagors or mortgagees must be entered under the General Frame, ie. code "G", with a Noting: "Discharge of mortgage as regards [mortgagor/mortgagee]". Enter the mortgagor as a Vendors entry. If registered, enter the mortgage as a Principal Deed.
A discharge of an unregistered mortgage must be entered under the General Frame, ie code "G", with a Noting: "Discharge of unregistered mortgage dated ...]". Enter the mortgagor as a Vendors entry.
A discharge of mortgage may be registered in the General Register notwithstanding that a Torrens Title has issued and the mortgage has been discharged thereon. The lodging party may register the discharge to clean up the General Register to facilitate effective searching.
Indexing
Locality: nil.
Link Conveyance: nil.
Principal Deed: required. The registered affected Old System mortgage.
Noting: nil.
V: the mortgagor, deceased estates or trusts, and any variations thereof.
P: nil.