ADIS Code - CPS
A conveyance by a mortgagee exercising power of sale of Old System land may be lodged where the mortgagor has defaulted on the mortgage and the mortgagee has sold the mortgaged property in order to recover monies owed. See s109 Conveyancing Act 1919.
The information contained hereunder relates to a current conveyance where a Qualified Title has not been issued. A form of conveyance is set out in Schedule 2 Conveyancing Act 1919. The original mortgage is not required.
See Greg Stilianou, Land Titling Law and Practice in NSW, Lawbook Co. 2013 re:
- The mortgagee’s power of sale for Old System mortgages [4.140]
- procedures on default under Old System mortgages [4.150]
- registration of the deed of conveyance [4.190]
Lodgment requirements
Stamp duty - Required. Marking as regards Vendors Duty is also required. If not marked, Registration insisted upon is prohibited.
Any alteration to the consideration, tenancy, interest/share, or change to the names of the parties must be marked. A minor change in spelling that does not alter the identity of a party may be ignored. The addition of a name must be marked.
Not required where the tenancy only is changed.
Registration copy - Required. If unacceptable, Registration insisted upon is prohibited.
Statement of Title Particulars form - Required.
NOS form - Required.
Index Particulars form (completion)
(A) Lodging Party - Must be completed.
(B) Instrument - Conveyance - Mortgagee Exercising Power of Sale
(C) Locality - Required. The situation of the Old System land.
Link Conveyance - For the Old System land affected.
Principal Deed - Required. The registered affected mortgage.
(D) Indexing - The mortgagor, the mortgagee and the purchaser.
(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 mortgagor, the mortgagee and the purchaser are required. Advise the lodging party of any discrepancies in names.
Tenancy: the tenancy/shares must be identical to that stated on the STP form. If tenancy is not stated for more than one purchaser, tenants in common is assumed.
Operative clause: "... hereby convey/convey to ...".
Locality: required. The situation of the Old System land.
Land Description: required. The Old System land must be described by reference to:
- a metes and bounds description
- another registered instrument
- a plan attached
- a Government Gazette notice or
- a lot or parcel in a subdivision.
Link Conveyance: required. The last registered conveyance or acknowledgment that evidences ownership prior to Book 4000. Whole or part must be established.
Principal Deed: the number of the affected mortgage as stated in the conveyance must be identical to the number stated on the IPF. Include any subsequent mortgages.
Execution: by the mortgagee. A power of attorney must be registered. The purchaser does not have to sign.
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
If the Link Conveyance is above Book 4000 or a previous CA has been raised, ensure a Qualified Title has not issued. If issued.
If the conveyance by mortgagee exercising power of sale includes a covenant to produce enter a Noting: "With a covenant to produce".
The Conveyance Frame, ie code "C", is always used when at least one vendor is conveying in their own right.
CA Required
Indexing
Locality: required. The situation of the Old system land.
Link Conveyance: required. The last conveyance or acknowledgment prior to Book 4000. Indicate whole "W" or part "P".
Principal Deed: the registered affected mortgage and any subsequent mortgages.
Noting: If:
- an interest, state: "interest in" (or Noting Code: "I")
- a share, state: "[fraction] share"
- part of the land, state: "[affected land description]"
- the land description relies on an attached plan, state: "see attached plan" (or Noting Code: "PL").
V: the mortgagor and the mortgagee, deceased estates or trusts, and any variations thereof. Also the last registered owner where they are not identical to the vendor.
P: the purchaser, deceased estates or trusts, and any variations thereof.