Lease by a mortgagee in possession

A mortgagee in possession of the land may grant a lease pursuant to:

  • express or implied powers under the mortgage or
  • s106 Conveyancing Act 1919.

The full name of the lessor must be stated and be identical to the mortgagee as shown on the Torrens Title Register. The following words must be added in the Lessor Panel after the lessors name:

'the mortgagee in possession under mortgage [dealing number] from [name of mortgagor] hereby in exercise of the power of lease conferred on me by the said mortgage/s106 Conveyancing Act 1919 (as is applicable)'.

Note  A lease exceeding 5 years, including any option to renew must state that the mortgagee is not bound by s106(3) Conveyancing Act 1919.

The lease must be accompanied by a statutory declaration by the mortgagee or mortgagee's solicitor stating:

  • that the mortgagee is in exclusive possession of the land
  • evidence of the default, ie the particular breach relied on, and its continuation up to the date of the lease and
  • that the lease does not rely on/contravene s106 Conveyancing Act 1919 (as is applicable).

See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [290.300].

Staff processing information

Refer to Legal through the Senior Examining Officer for examination of evidence.

When in order proceed with registration of lease.

Film statutory declaration with lease.