On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Mortgage of lease, mortgage or charge

NOTE: Mortgages of lease, mortgage or charge dated on or after the 3rd of March 2018 must be lodged on the National Mortgage form.

Form 05ML 

Dealing type

ML (mortgage of lease)

SM (mortgage of mortgage)

MC (mortgage of charge)

Stamp duty - Required

Where the mortgage of lease/mortgage/charge was executed before 1/7/2016

Any alteration that increases the principal sum must be marked.

Certificate of Title - not required

NOS form - not required

Standard form of Caveat - prevents registration if the caveat is drawn against the mortgage, lease or charge.

Does not prevent registration if the caveat is drawn against the land.

Priority Notice noted on the Register - see Priority Notice page.

A mortgage of more than one lease, mortgage or charge involving the same mortgagor (e.g. the same lessee) and mortgagee is a multiple instrument. See Fees page.

A mortgage of lease affecting a lease carried forward as a subsisting interest, i.e. 'Bk ... No. ... Lease To ...' must either:

  • be registered as a deed in the General Register of Deeds and a Request form 11R together with an Old System search showing the party entitled to deal with the lease must be lodged to record the interest. A change in proprietorship must be registered in the General Register of Deeds. See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [390.100]. Note  The Mortgage of Lease form 05ML cannot be registered in this instance or
  • be accompanied by:
    • an Old System search of the leasehold title and
    • a statutory declaration made by the person who undertook the Old System search of the leasehold title stating:
      • their qualification
      • that he or she has inspected all deeds since the leasehold title was created to the present time
      • the registered Book and No. and type of all instruments inspected to show the leasehold title has not expired and
      • the registered Book and No. and type of all instruments to which the leasehold estate is subject.

A notification (code ULD): 'Devolution of Lease' is entered in the Second Schedule and all further transactions affecting the lease may be lodged on a Real Property Act form and do not require further evidence of devolution.

Refer to Legal through the Senior Examining Officer in both instances.

Note  A registered mortgage or charge of the lease will be removed with the lease where the lease can be removed on expiry of the term.  The consent of the mortgagee is required for a surrender (including implied surrender) of a current lease.

(A) The registered number of a lease, mortgage or charge being mortgaged must be stated.

A lease must still be current regardless of any options.

(B) The reference to title for the land affected must be stated. In the case of a mortgage of lease affecting a lease folio, the number of the lease folio only must be stated.

(D) The full name of the mortgagor must be stated and must be identical to the name of the lessee, mortgagee or chargee as shown on the Register.

(E) The relevant annexure and/or memorandum details must be stated. Any annexure must be identified as such.  Each page must be numbered. The first and last pages and any alterations or additions must be signed by all parties.

(F) Where other mortgages and/or leases are lodged together with the mortgage, the Encumbrances must indicate the priority of registration, or an accompanying letter by the party ceding priority must set out the order of registration.

A writ recorded against the lease, mortgage or charge must be noted in the Encumbrances, or the Court must consent to the mortgage, or the writ must be removed.

(G) The full name of the mortgagee must be stated.

(H) Tenancy/shares must be stated where there is more than one mortgagee. Reference to the tenancy/shares will not be entered on the Torrens Title Register.

(I) The dealing must be executed by the mortgagor and the mortgagee and be witnessed, or be executed on their behalf as follows:

Attorney and witnessed Solicitor or Barrister Authorised Officer and witnessed Licensed Conveyancer
Mortgagor Tick Cross Tick Cross
Mortgagee Tick Tick Tick Tick

 

See execution requirements for companies, witnesses etc pages.

Staff processing information

If in order proceed with registration except for the following.

Refer to SD2

A mortgage of lease affecting a title held or managed by SD2.

Refer to Legal through the Senior Examining Officer

A mortgage:

  • of a lease for less than the full term of the lease
  • where there is doubt as to the corporate status of the mortgagee
  • affecting a Book and No. lease accompanied by evidence of devolution of the lease.

Registration procedure

Mortgage of lease or mortgage

PRIME CODE  code of lease or mortgage as shown on the Register

PRIME NO.  number of lease or mortgage

SUB CODE

ULM (lease)

UMM (mortgage)

CODE (name)    P, C or Q  [name of mortgagee].

Mortgage of charge

DEALING TYPE  MC

PRIME CODE  code of charge as shown on the Register

PRIME NO.  number of charge

SUB CODE  UA

DETAILS  Mortgage Of Charge To [name of mortgagee].

Affecting a Book and No. lease with satisfactory evidence of devolution

 ADD. TRANSACTION  UNDR

PRIME CODE   code of lease as shown on the Register

PRIME NUMBER    number of lease

SUB-CODE    ULD  (Devolution Of Lease).