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 for a term of up to 5 years (including any options).
NOTE: This dealing type must be lodged as a Dealing with Exception accompanied by a completed Lodgment Rules Exception form.
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 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 lessor’s 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/section 106 Conveyancing Act 1919 (as is applicable)'.
A statutory declaration by the mortgagee or mortgagee's legal representative must be annexed to the lease stating:
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that the mortgagee is in exclusive possession of the land (e.g. showing evidence of receipt of rents and profits or evidence of activities that an owner of that land would undertake)
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evidence of the default, i.e. the particular breach relied on, and its continuation up to the date of the lease
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where the lease is less than 5 years, that the lease does not contravene section 106 Conveyancing Act 1919 (Cth) (as is applicable)
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where the lease is more than 5 years, that the mortgagee is exercising the power contained in the registered mortgage and is not bound by section 106(3) Conveyancing Act 1919 (Cth).
NOTE: Any lease by a mortgagee in possession which is for a term of more than three years must be registered in the Torrens register
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.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/
Publication Date: June 2025