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

Form W-05M (PDF 287 KB)

Dealing type - M

Legislation - s71D Water Management Act 2000

(A) Stamp duty  -  Required where the mortgage was executed before 1/7/2016. Any alteration that increases the principal sum must be marked.

WAL Certificate - Required.

Caveat noted on the WAL Folio - If specifically prohibited, refer to the SD6 for service of notice on the caveator.

The written consent -

  • of a term transferee is required where a current term transfer is noted on the WAL folio. See s71N(8) Water Management Act 2000.
  • of a mortgagee or chargee is required where a mortgage or charge is noted on the WAL folio.  Production of the WAL certificate by the mortgagee or chargee to allow registration of the dealing is acceptable in lieu of written consent. See s71L Water Management Act 2000.

A mortgage by fewer than all of the registered holders is permissible (see s71D(1) Water Management Act 2000). In such cases, where the registered holders are joint tenants the joint tenancy between the mortgaging and the non-mortgaging holders is severed on registration of the mortgage.

One of the following must be lodged with the mortgage:

  • the consent of the non-mortgaging joint tenant, or
  • a statutory declaration by the mortgagor to the effect that the other joint tenant has been notified in writing of the intended registration of the mortgage and that it will sever the joint tenancy.

or the address for service of notice on the non-mortgaging joint tenant must be provided.

(See 'SD6 -  Registration procedure' below).

Reference to trusts, or to the capacity of trustees, executors or administrators is not acceptable on a mortgage, except for private water trusts, and will not be shown on the WAL folio.

(F) The number of the WAL being mortgaged must be stated.

(G) The tenure type of the WAL must be stated and agree with the tenure type shown on the WAL folio, i.e. Continuing or Supplementary.

Note  A mortgage cannot be registered on a Specific Purpose tenure WAL, see s71D(2) Water Management Act 2000.

(H) The full name of the mortgagor must be stated and must be identical to the name of the registered holder as shown on the WAL folio. The ACN or ARBN of a company etc must be stated.

(I) The full name of the mortgagee must be stated. The ACN or ARBN of a company etc must be stated.

(J) Tenancy must be stated where there is more than one mortgagee. If tenants in common, the shares held must be stated. Reference to tenancy/shares will not be entered on the WAL folio.

(K) The relevant annexure must be specified. The 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.

(L) The relevant memorandum must be specified.

(M) The postal address for service of notices on the mortgagee must be stated.  For a subsequent change of address. Note  The address is not restricted to NSW.

(N) The mortgage must be executed by the mortgagor and be witnessed, or be executed on their behalf by the following:

  • attorney and witnessed
  • authorised officer and witnessed.

Note  A solicitor, barrister or licensed conveyancer cannot execute on behalf of the mortgagor.

The mortgage must be executed by the mortgagee and be witnessed, or be executed on their behalf by the following:

  • attorney and witnessed
  • authorised officer and witnessed
  • solicitor or barrister
  • licensed conveyancer.

See execution requirements for companies, witnesses etc pages. Note  Requirements are the same as for Real Property Act dealings except where otherwise stated.

Staff processing information

Refer all dealings to SD31

SD6 - Registration procedure

PRIME CODE

M (where there is no ITS mortgagee code)

MA etc (where an ITS mortgagee code exists)

CODE (name)    P, C or Q where Prime Code 'M' is selected  [name of mortgagee].

Affecting the share of a registered holder

DETAILS    As Regards The Share Of [name of registered holder].