ADIS Code - M
A mortgage is a transfer of the legal estate in land for the purpose of securing a debt. Once mortgaged, the mortgagee becomes the legal owner of the land and the mortgagor holds the equity of redemption. See Part 7 Conveyancing Act 1900.
The time and date of registration of mortgages determines their priority. The time and date of preparation, commencement or execution of the mortgage is of no relevance to the establishing of priority. A registered mortgage has priority over an unregistered mortgage.
A certified copy of a registered mortgage may used in lieu of a lost original in any Court proceedings.
Stamp duty - Required only where:
- the land mortgaged is a commercial property, or
- the mortgagor is a corporation.
Where stamp duty is required:
Registration copy - Required. If unacceptable, Registration insisted upon is prohibited.
Statement of Title Particulars form - Required.
NOS form - Not required.
Index Particulars form (completion)
(A) Lodging Party - Must be completed.
(B) Instrument - Mortgage.
(C) Locality - The situation of the Old System land affected.
Link Conveyance - For the Old System land affected.
Principal Deed - Not required.
(D) Indexing - The mortgagor.
(E) Certification - Required.
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 and the mortgagee are required. Advise the lodging party of any discrepancies in names.
Operative clause: "... hereby mortgage ..." or "... hereby convey ...".
Tenancy: 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.
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.
Execution: by the mortgagor. A power of attorney must be registered. The mortgagee 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
Where a conveyance is lodged with the mortgage, the registered number of the conveyance must be written on the original and registration copy of the mortgage.
If the Link Conveyance is above Book 4000 or a previous CA has been raised, ensure a Qualified Title has not issued. If issued.
A mortgage affecting land that does not have a Link Conveyance in the form of a Book and No. must be entered under the General Frame, ie code "G", with a Noting: "Mortgage of [land description and manner of acquisition]". Enter the Locality. Enter the mortgagor as a Vendors entry.
If the mortgage contains a right of way or other easement, no additional action is required.
Lord Howe Island And Norfolk Island Mortgages
Lord Howe Island and Norfolk Island mortgages were registered in the General Register until a registry was established on the islands. If registration of a Lord Howe Island or Norfolk Island mortgage is required, it must be entered under the General Frame, ie code "G", with a Noting: "Mortgage of Lord Howe Island/Norfolk Island lease [number]". The "Registration Insisted Upon" stamp must be affixed to the mortgage.
CA Not required
Locality: required. The situation of the land.
Link Conveyance: required. The last conveyance or acknowledgment prior to Book 4000. Indicate whole "W" or part "P".
Principal Deed: nil.
- 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, deceased estates or trusts, and any variations thereof.