Transfer by Chargee Under Power of Sale

This page aims to help you complete an electronic Transfer by Chargee Under Power of Sale dealing form. This form is used for a transfer by a chargee pursuant to a power of sale in a registered charge.

NOTE:

• any registered interest noted in the Encumbrances of the transfer, except for the subject charge, will remain on the Register
• all dealings registered prior to or that have priority over the subject charge will remain on the Register
• the subject charge and any charge that does not have priority over the subject charge and is not noted in the Encumbrances will be removed on registration of the transfer
• an equitable charge or a writ recorded after the subject charge and not noted in the Encumbrances will be removed on registration of the transfer
• all current leases will remain on the Register.

 
NOTE: A transfer by a chargee under power of sale affecting a lease or including an easement in the transfer must be lodged in as a Dealing with Exception.
 
NOTE: A charge pursuant to the Contaminated Land Management Act 1997 has priority over all other interests. The date of the charge is optional.

NOTE: Both the transferor (chargee) and transferee must be represented in the workspace for this dealing form.

Subscriber requirements

Before lodging this document electronically via an Electronic Lodgment Network, a Subscriber must:

1. verify their Client’s identity
2. establish their Client’s right to deal with the land
3. have a properly completed and executed Client Authorisation form and
4. retain evidence that supports the dealing (see Supporting Evidence below).

The Subscriber must also certify that they have taken reasonable steps to ensure that the instrument is correct and compliant with relevant law and any Prescribed Requirement.

For more information on these requirements see:

Residual Documents

Guide to complete

Legislation – section 58 Real Property Act 1900.

Stamp Duty – required.

Notice of Sale – required. There is no need to separately create a Notice of Sale form. The Notice of Sale form is automatically produced in the workspace and sent to NSW LRS when the instrument is lodged.

Standard Form of Caveat – a caveat claiming pursuant to an unregistered mortgage or loan agreement will be removed upon registration of a Transfer by Chargee Under Power of Sale, pursuant to section 59 Real Property Act 1900. Where the caveat is not pursuant to an unregistered mortgage, charge or covenant charge or loan agreement, NSW LRS will determine whether the caveat will prevent registration, see section 74H(5) Real Property Act 1900. For more information, see here.

Priority Notice Noted on the Register - see Priority Notice page for more information.

The following headings refer to the data fields which must be completed in order to lodge an electronic Transfer by Chargee Under Power of Sale dealing form.

Land Title

Enter the land title reference(s).

Participant Details

Party Details – Party Name

Select the transferor being the chargee on title.

Enter the name of the transferee(s).

Document

Create Document – Select Other Documents.

Select Transfer by Chargee Under Power of Sale.

Dealing on Title

Select charge.

Dealing Number

Select the dealing number of the charge pursuant to which the power of sale is being exercised.

Transferor (Chargee)

Select the transferor being the chargee.

Registered Proprietor

Select the registered proprietor.

Transferee

Select the transferee.

Tenancy/Shares of the Transferee

Enter the tenancy/shares of the transferee.

Consideration

Consideration Type

Select one of the following consideration types:

• With monetary consideration - where a transfer involves payment of monies.
• Without monetary consideration and as regards a deed of partition - where a transfer does not involve payment of monies and satisfies the conditions set out in a deed of partition.
• Without monetary consideration and as regards a deed of assignment - where a transfer does not involve payment of monies and satisfies the conditions set out in a deed of assignment.
• Without monetary consideration and as regards a court order - where a transfer does not involve payment of monies and satisfies the conditions set out in a Court Order.
• Without monetary consideration and as regards an intergenerational assignment - where a transfer does not involve payment of monies and satisfies the conditions of an intergenerational assignment.
• Without monetary consideration and a change in manner of holding - where a transfer does not involve payment of monies and alters the names, tenancy and/or shares of the registered proprietors.

Gross Consideration Amount

Enter the consideration amount where the transfer is with monetary consideration.

Consideration Details

Enter the consideration details where the transfer is without monetary consideration.

Encumbrances (optional)

Enter the dealing number of any interest which is to remain on the Register. A writ recorded before the subject charge must be noted in the Encumbrances, or the Court must consent to the dealing, or the writ must be removed. Any dealing noted in the Encumbrances of the transfer, except for the subject charge, will remain on the Register.

Attachment

Attachment Type – Caveator’s Consent

Attach a caveator’s consent if required.

Attachment Type – Minister’s Consent

Attach a Minister’s consent if required.

Attachment Type – Supporting Evidence

Attach any supporting to support the application if required, such as evidence of the Court’s consent.
 

Supporting evidence

In addition to evidence supporting the steps taken by the Subscriber to verify the identity of their Client and establish their Client’s right to deal, the Subscriber may be required to retain other evidence to support the dealing.

The evidence that the Subscriber is required to retain to support a Transfer by Chargee Under Power of Sale dealing form may include:

• documents supporting the chargee’s power of sale, such as:
  • proof of default of the payment, in accordance with the terms of the judgment to which the covenant charge relates, of the principal, interest or other money the payment of which is secured by the covenant charge, or the payment, in accordance with the terms of that judgment, of any part of that principal, interest or other money.
  • evidence of written notice that complies with section 57(3) Real Property Act has been served on the chargor.

It is a matter for the Subscriber to be satisfied that they have met the requirements for the dealing. Please refer to the ARNECC Guidance Note 5 for assistance on retaining evidence to support conveyancing transactions in accordance with the NSW Participation Rules.

All NSW legislation can be accessed at www.legislation.nsw.gov.au