Transfer by Mortgagee Under Power of Sale

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

NOTE:

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

See Greg Stilianou, Land Titling Law and Practice in NSW, Lawbook Co. 2013 re:

• the mortgagee’s power of sale for Torrens Title mortgages [4.50] – [4.60]
• procedures on default under Torrens Title mortgages [4.70] – [4.120]
• registration of a transfer by mortgagee under power of sale [4.130]
• transfer by mortgagee under power of sale (general requirements, aspects of the approved form, proof of default and effects of registration) [4.300] – [4.340]
• interplay between a caveat and the mortgagee’s transfer [4.450] – [4.510]
• appointment of receivers (advantages, how are receivers appointed and power of receivers) [4.200] – [4.240]
• transfer based on appointment of receiver (general requirements, aspects of the approved form, proof of default and effects of registration) [4.350] – [4.390]
• appointment of attorney (the power conferred – conditions and limitations, proof of power, dealing with the attorney) [4.250] – [4.280]
• transfer based on power of attorney (general requirements, aspects of the approved form, proof of default and effects of registration) [4.400] – [4.440].

 
NOTE: A transfer by mortgagee under power of sale affecting a lease or including an easement in the transfer must be lodged 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 (mortgagee) 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, charge, covenant charge or loan agreement will be removed upon registration of a Transfer by Mortgagee 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 Mortgagee 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 mortgagee on title.

Enter the name of the transferee(s).

Document

Create Document – Select Other Documents.

Select Transfer by Mortgagee Under Power of Sale.

Dealing on Title

Select mortgage.

Dealing Number

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

Transferor (Mortgagee)

Select the transferor being the mortgagee.

Registered Proprietor

Select the registered proprietor.

Transferee

Select the transferee.

Tenancy/Shares of the Transferee

Enter the tenancy/shares of the transferee.

Consideration

Enter the 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 mortgage 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 mortgage, will remain on the Register.

Attachments

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 or a statutory declaration.

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 Mortgagee Under Power of Sale dealing form may include:

• documents which support the mortgagees power to sell, such as:
  • proof that default has been made in the observance of any covenant, agreement, condition or payment expressed or implied in the mortgage
  • evidence of written notice that complies with section 57(3) Real Property Act 1900 has been served on the mortgagor.

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