Mortgages | By Lawyers
Skip to main content

Mortgages

NSW

This publication guides practitioners in New South Wales through the preparation of loan agreements, mortgages, and guarantees.

2 Matter Plans

Overview

The commentary covers the drafting and execution of mortgages, amendments, variations, and assignment deeds, as well as completion, registration, discharge, and default, whether acting for the mortgagor or the mortgagee.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Also included is 1001 Conveyancing Answers (NSW), which is a useful reference guide.

Precedents in this publication include:

  • Library of loan documents, including:
    • Mortgage-linked loan agreement;
    • Standard terms document – Registered memorandum;
    • No-security loan agreement;
    • Acknowledgements of debt;
    • Assignment, variation and priority;
    • guarantee;
    • minutes and declaration for a company mortgagor;
  • Letters and notices for default of the mortgagor.
Icon

2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Mortgages (NSW)
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 1001 Conveyancing Answers (NSW)
    • Item icon 101 Costs Answers
    • Item icon A Brief Explanation of the Transition to E-Conveyancing
    • Folder icon Papers and articles - Conveyancing and property
      • Item icon Plain language – A paper by the Hon. Michael Kirby AC CMG
      • Item icon Adjustment for cladding agreements
      • Item icon Adjustment of rates
      • Item icon Adjustment of rent
      • Item icon Adjustments
      • Item icon Adjustments and land tax in 2024
      • Item icon Agreement to lease
      • Item icon Avoiding off the plan - Quality defects
      • Item icon Avoiding off the plan - Statutory rights
      • Item icon Avoiding off the plan contracts - A sequel
      • Item icon Bits and pieces
      • Item icon Breach of contract - Penalty interest
      • Item icon Breach of contract – Reasonably foreseeable loss
      • Item icon Breach of section 32
      • Item icon Caveats (Vic)
      • Item icon Caveats - Forcible removal 1
      • Item icon Caveats - Forcible removal 2
      • Item icon Caveats - Insufficient proceeds from settlement
      • Item icon Caveats - Tenant’s caveats and the sale or mortgaging of freehold property
      • Item icon Caveats - Use them!
      • Item icon Costs and caveats
      • Item icon Certificates of title in electronic conveyancing
      • Item icon Clayton's settlement
      • Item icon Compensation for loss
      • Item icon Contamination
      • Item icon Contract – Australian Consumer Law – Impact on residential conveyancing
      • Item icon Contract - Avoiding off the plan contracts 1
      • Item icon Contract - Avoiding off the plan contracts 2
      • Item icon Contract - Changing the contract by special condition
      • Item icon Contract - Electronic conveyancing special condition
      • Item icon Contract - Electronic signatures
      • Item icon Contract - Entire contract
      • Item icon Contract - Guarantee
      • Item icon Contract - Is there a contract?
      • Item icon Contract - Misleading contracts
      • Item icon Contract - New contract
      • Item icon Contract - New contract - Contract of sale tweaked
      • Item icon Contract - New contract - Happy anniversary
      • Item icon Contract - New special conditions for contract of sale
      • Item icon Contract - Nomination
      • Item icon Contract - Terms contracts 1
      • Item icon Contract - Terms contracts 2
      • Item icon Contract - Terms contracts 3
      • Item icon Contract - Trust transactions
      • Item icon Cooling off
      • Item icon Co-owners - Joint tenancy or tenancy in common
      • Item icon Co-owners and easements – Two topics
      • Item icon Covenant - Removal of covenants 1
      • Item icon Covenant - Removal of covenants 2
      • Item icon Defects - Essential safety measures - Part 1
      • Item icon Defects - Essential safety measures - Part 2
      • Item icon Defects - Occupancy and insurance certificates
      • Item icon Deposit - Deposit release - 2010
      • Item icon Deposit - Deposit release - 2017
      • Item icon Deposit - Deposit release - A solution?
      • Item icon Deposit - Deposit release - Tough decisions?
      • Item icon Deposit - Deposit release - Why take the risk?
      • Item icon Deposit - Forfeiture of deposit
      • Item icon De-regulated Contract of Sale of Land
      • Item icon Deterioration - A matter of degree
      • Item icon Deterioration - General condition 24 has teeth
      • Item icon Deterioration - State of the premises
      • Item icon Disclosure of death
      • Item icon Estate agent - Agent beware
      • Item icon Estate agent’s commission – Money for nothing
      • Item icon Foreign residents capital gains tax withholding
      • Item icon GST - GST and mistake
      • Item icon GST - Margin scheme
      • Item icon GST withholding
      • Item icon Inadvertent disclosure
      • Item icon Inspection - Right to inspect
      • Item icon Land tax - Part 1
      • Item icon Land tax - Part 2
      • Item icon Land transfer duty benefits
      • Item icon Lease - Abandoned goods
      • Item icon Lease - Landlords beware
      • Item icon Lease - Retail lease
      • Item icon Lease - Retail lease - Predominant use
      • Item icon Lease - Retail lease cost
      • Item icon Lost trust deeds
      • Item icon Material facts
      • Item icon Measurements
      • Item icon Mortgage stress
      • Item icon Nomination
      • Item icon Nomination and the Australian Consumer Law
      • Item icon Nomination disputes
      • Item icon Notice of action
      • Item icon Notices - Liability for notices
      • Item icon Off the plan duty concessions
      • Item icon Owner-builder insurance
      • Item icon Owner-builders
      • Item icon Owners corporations
      • Item icon Personal Property Securities Act
      • Item icon Planning certificates - Accuracy
      • Item icon Power of attorney
      • Item icon Priority notice
      • Item icon Property - Rules and undertakings
      • Item icon Rescission - Consequences of rescission 1
      • Item icon Rescission - Consequences of rescission 2
      • Item icon Rescission - Costs on rescission
      • Item icon Retail lease outgoings
      • Item icon Retail premises
      • Item icon Retail repairs
      • Item icon Retail repairs revisited
      • Item icon Sale of land amendments
      • Item icon Scary short-stays
      • Item icon Self managed superannuation funds
      • Item icon Septic situation
      • Item icon Sheriff - Enforcement procedure
      • Item icon Sheriff's sale - Part 1
      • Item icon Sheriff's sale - Part 2
      • Item icon Solicitor - Lawyers selling real estate
      • Item icon Solicitor – Executor’s commission 1 – Horns of a dilemma
      • Item icon Solicitor - Executor's commission 2 - A fiduciary duty
      • Item icon Solicitor – Liability for commercial advice
      • Item icon Stamp duty concessions
      • Item icon Subdivision - Off the plan sales
      • Item icon Subdivision - Off the plan sales - Best endeavours - Part 1
      • Item icon Subdivision - Off the plan sales - Best endeavours - Part 2
      • Item icon Subdivision - Off the plan sales - Materially affects
      • Item icon Subdivision - Off the plan sales - Sunset conditions
      • Item icon Subdivision - Owners corporation certificates
      • Item icon Subdivision - Owners corporation repairs
      • Item icon Subdivision - Owners corporations
      • Item icon Subject to contract
      • Item icon Sunset clause – Vendor ending a contract – Purchaser’s consent or court order required
      • Item icon Time of the essence
      • Item icon To be or not to Airbnb
      • Item icon Trade practices – Fair trading in property transactions
      • Item icon Vendor statement - Aboriginal Heritage Act
      • Item icon Vendor statement - Breach of section 32
      • Item icon Vendor statement - Growth areas infrastructure contribution
      • Item icon Vendor statement - Honest and reasonable
      • Item icon Vendor statement and leases
      • Item icon Vendor statement review
      • Item icon Vendor statements and the Australian Consumer Law
      • Item icon Vendor's duty to co-operate
      • Item icon Wills and estates - Death in the house
    • Item icon Further information
  • Item icon Overview
    A mortgage is a contract to secure the payment or performance of a monetary obligation secured by real property. A mortgagee has statutory powers to foreclose or sell the real property on default. A loan agreement between the parties supports the mortgage. The parties to a mortgage are called the ...

    This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Mortgages
    • Item icon To do list - Mortgages
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Verification of identity in electronic conveyancing transactions
    • Folder icon Library of identity and authorisation forms - NSW
      • Item icon Verification of identity certificate
      • Item icon Client authorisation
      • Item icon Identifier declaration
      • Item icon Identity agent certification
      • Item icon Australian Embassy/High Commission/Consulate certification form
    • Item icon Retainer instructions - Mortgages
    • Item icon Conflict of interest check
    • Item icon Initial letter to mortgagor client with costs agreement
    • Item icon Initial letter to mortgagee with costs agreement and summary of loan terms
    • Item icon Costs agreement - NSW
    • Item icon Standard costs disclosure form for clients - Fees under $3000
    • Item icon Conveyancers costs disclosure - NSW
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Summary of loan terms
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. The mortgage
    • Item icon Electronic signatures and electronic documents
      Dealings, such as leases, mortgages and transfers, are no longer required to be signed in physical form in order to be lodged at Land Registry Services. Electronic dealings are now signed using digital signatures of practitioners using an Electronic Lodgment Network such as PEXA or Sympli. The ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Loan agreements and registered memorandum
      The mortgage must be supported by a loan agreement between the mortgagee and the mortgagor. The matter plan includes two loan agreements that may be used to record the creation of the loan relationship. The Mortgage Linked Loan Agreement is linked to the mortgage which incorporates the provisions ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Mortgagee’s requisitions
      As part of its due diligence in assessing the suitability of real property as security for a loan, a mortgagee will issue a list of requisitions. The exact questions will depend on the type of property, for instance, strata, rural, company title. For all types of properties, the mortgagee will need ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon The National Mortgage Form
      All mortgages, discharges of mortgages, and variations of mortgages must be lodged electronically using the National Mortgage Form. The National Mortgage Form is a national initiative to standardise the content and presentation of mortgages lodged for registration through all lodgement channels ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Mortgage linked loan agreement
    • Item icon Standard terms document - Registered memorandum AJ843928H
    • Item icon Creation and registration
      The National Mortgage Form is created and registered within an Electronic Lodgement Network Operator (ELNO) such as PEXA or Sympli and allows for the incorporation of any registered common provisions, or other registered dealings. See the ARNECC National mortgage webpage for the current National ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Second mortgages
      Where a registered mortgage already exists, a subsequent mortgage will usually be referred to as a second mortgage. To register a second mortgage the second mortgagee will need to obtain the consent of the first mortgagee. There is no difference in form between a first and second or subsequent ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Collateral mortgages
      A collateral security is a security given in addition to the principal security. A collateral security is independent of, but subordinate to, the principal agreement. A collateral mortgage is a mortgage relating to the same debt as the principal security and may be registered. A principal security ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Equitable mortgages
      Under the Torrens system, there can be no legal mortgage without registration. However, once executed by the parties, there is an equitable mortgage pending registration. There are variants of the equitable mortgage, but essentially there are two types:

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon All monies mortgages
      A mortgage is ordinarily supported by a loan agreement that establishes how much money is owed by the borrower to the lender. However, some loan agreements are on an all monies basis and seek to allow for further advances. These all monies mortgages do not include a dollar amount of the debt in the ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon National credit code
      The National Credit Code is found in Schedule 1 to the National Consumer Credit Protection Act 2009. The code has a broad effect on mortgages and s 7 stipulates the type of mortgages that are regulated by the code.

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Solicitor mortgages
      Practitioners acting in mortgage matters must also ensure that they fully understand their obligations under the Legal Profession Uniform Law 2014. The regulatory framework applies to mortgage practices, rather than solicitor’s practices. The latter occasionally receive instructions to act on a ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Farm Debt Mediation Act
      The Farm Debt Mediation Act 1994 provides a compulsory mediation procedure before a farmer's creditors can take possession of property or exercise other enforcement acts under a farm mortgage. For a discussion of the legislation, see: Craigie v Champion Mortgage Services Pty Ltd Craigie v Champion ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Joint borrowers – Forgery
      If one joint proprietor forges the signature of another joint proprietor, the lender's interest will gain the benefit of indefeasibility on registration. However, the mortgage will only be enforceable against the innocent party to the extent of the mortgage debt. So reference must be made to the ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Personalty
      Personalty refers to personal property, such as tools, equipment, and motor vehicles, as opposed to real property. The Personal Property Securities Register (PPSR) provides a national register for people wishing to register their security interests over personal property. The Personal Property ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Folder icon If required - Old system
      • Item icon Old system mortgage
    • Folder icon If required - Ancillary documents
      • Item icon Business purpose declaration
    • Folder icon If required - No security loan agreement
      • Item icon No security loan agreement
  • Folder icon C. Acting for the mortgagee
    • Item icon Letter to mortgagor's solicitor submitting documents
    • Item icon Acknowledgement of receipt of memorandum
    • Item icon Statutory declaration - blank - NSW
    • Item icon Clause - Statutory declaration re mortgages, notices, claims etc
    • Item icon Authority to complete documents and satisfy requisitions
    • Item icon Mortgagee's requisitions
  • Folder icon D. Acting for the mortgagor
    • Item icon Letter to mortgagor to attend to sign mortgage
    • Item icon Letter to mortgagee's solicitor returning documents
    • Item icon Letter to discharging mortgagee requesting discharge
    • Item icon Direction to pay
    • Folder icon If required - Company mortgagor
      • Item icon Minutes of meeting of company mortgagor
      • Item icon Statutory declaration - blank - NSW
      • Item icon Example content - Statutory declaration that company is solvent
  • Folder icon E. If required - Independent legal advice, priorities, guarantees and caveats
    • Folder icon Independent legal advice
      • Item icon Schedule 1 Declaration by borrowergrantor of a security interest
      • Item icon Schedule 1A Declaration by borrowergrantor of a security interest (corporation)
      • Item icon Schedule 1B Declaration by borrowergrantor of a security interest (trustee)
      • Item icon AI Prompt for Schedule 1 Declaration by Borrower Grantor of a Security Interest
      • Item icon Schedule 2 Declaration by third party mortgagor, guarantor, surety mortgagor or indemnifier for the borrowergrantor of a security interest
      • Item icon Schedule 2A Declaration by third party mortgagor, guarantor, surety mortgagor or indemnifier for the borrowergrantor of a security interest (corporation)
      • Item icon AI Prompt for Schedule 2 Declaration by Third Party Mortgagor, Guarantor, Surety Mortgagor or Indemnifier for the Borrower Grantor of a Security Interest
      • Item icon Schedule 3 Interpreter's certificate
      • Item icon Schedule 4 Pt 1 Acknowledgment of legal advice by proposed borrower or grantor of security interest
      • Item icon Schedule 4 Pt 2 Acknowledgment of legal advice by proposed guarantor
      • Item icon Schedule 4A Pt 1 Acknowledgement of legal advice by proposed borrowergrantor of a security interest (corporation)
      • Item icon Schedule 4A Pt 2 Acknowledgment of legal advice by proposed guarantor (corporation)
      • Item icon Schedule 4B Pt 1 Acknowledgment of legal advice by proposed borrowergrantor of a security interest (trustee)
      • Item icon Schedule 4C Acknowledgment of legal advice by proposed borrowergrantor of a security interest trustee (corporation)
      • Item icon AI Prompt for Schedule 4 Part 1 Acknowledgement of Legal Advice by Proposed Borrower Proposed Grantor of a Security Interest
      • Item icon Consent to same solicitor legal advice - Borrower guarantor
    • Folder icon Priorities, guarantees and acknowledgements
      • Item icon Deed of priority
      • Item icon Deed of guarantee and explanation
      • Item icon Acknowledgement of debt simple
      • Item icon Acknowledgement of debt various situations
      • Item icon Acknowledgement of debt caveatable interest
    • Folder icon Caveats and priority notices
      • Item icon Caveats
        The Torrens system of land ownership is based on registration of interests that confers absolute proof of ownership. As some interests in land are not capable of being registered, the caveat system enables such interests to be endorsed on title so that, while caveat registration does not confer ...

        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

      • Item icon Priority notices
        Part 7B of the Real Property Act 1900 allows a person who intends to lodge a dealing, to give effect to a legal or equitable interest in land, to lodge a priority notice. Other than a priority notice, the only dealing that can be lodged to protect an equitable interest in land is a caveat. An ...

        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

  • Folder icon F. If required - Discharge, transfer, assignment and variation
    • Folder icon Discharge
      • Item icon Discharge of mortgage
        Once the principal or secured sum has been repaid, a discharge of mortgage can be obtained from the mortgagee. A discharge of mortgage operates to release the land from the mortgage security. The property ceases to be subject to the mortgage only once the approved form of discharge is registered. ...

        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

      • Item icon Old system discharge of mortgage
      • Item icon Deed of forgiveness of debt
    • Folder icon Transfer
      • Item icon Transfer of mortgage
        A registered proprietor may transfer an estate or interest in land by an instrument in an appropriate prescribed form. A mortgagee has an interest in land, bestowing the right to transfer that interest under a mortgage. This is done by registering a Transfer of Interest form using an Electronic ...

        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

      • Item icon Notice of transfer of mortgage
    • Folder icon Assignment
      • Item icon Notice of assignment of simple debt
      • Item icon Deed of assignment of debt - Concise
      • Item icon Deed of assignment of debt - Extensive
      • Item icon Deed of assignment of old system mortgage
    • Folder icon Variation
      • Item icon Variation of mortgage
        The terms of a mortgage may be varied, and the variation may be registered. The amount and the term of a mortgage can be varied.

        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

      • Item icon Example content - Annexure to variation with omissions variations additions
      • Item icon Deed of variation of mortgage
      • Item icon Variation of priority of mortgages or charges
        Under the Torrens system, registration gives priority. Priority is established based on the time of lodgement for registration. In relation to mortgages, the first mortgage to be registered will take priority over subsequent mortgages. However, parties having an interest in the property under ...

        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

      • Item icon Duty
        There is no duty on mortgages.

        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

  • Folder icon G. Default
    • Item icon Default
      A default usually, relates to a default in payment of the principal sum secured by the mortgage. A default can also relate to the non-performance of the covenants contained in the mortgage and to be observed by the mortgagor. For example, the mortgagor may not keep the property in good repair, fail ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Power of sale
      Unless the terms of the notice are complied with, the mortgagee’s power of sale is exercisable after the expiration of the notice period. In this regard, both the Real Property Act 1900 and the Conveyancing Act 1919 allow the mortgagor one month to remedy the breach. This period can be, and often ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Obtaining possession
      Section 60 of the Real Property Act 1900 gives the mortgagee the power to take possession of the secured property. The mortgagor may vacate the property voluntarily however if they do not the mortgagee will have to commence proceedings for possession of land in the Supreme Court. The mortgagee ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Power of foreclosure
      Section 61 of the Real Property Act 1900 sets out the procedure for foreclosure. Foreclosure is a process by which the mortgagee becomes the absolute owner of the land, free from any encumbrances and the mortgagor’s rights. Foreclosure is not a simple procedure and is used as a last resort ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Mortgagee sale
      After a mortgagee exercises the power of sale and sells the secured property, the proceeds sale have to be accounted for. Section 58 of the Real Property Act 1900 sets out the order of priority for payment of the proceeds of a mortgagee’s sale:

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Default notice section 57(2)(b) RPA or section111(2)(b) Conveyancing Act
    • Item icon Letter to mortgagor with section 57 RPA or section 111 Conveyancing Act notice
    • Item icon Letter less priority to encumbrancee with section 57 RPA or section 111 Conveyancing Act notice
  • Folder icon H. Settlement and finalising the matter
    • Item icon Letter to mortgagor's solicitor advising ready for settlement
    • Folder icon If required - Strata
      • Item icon Section 22 or Section 46 Notice - Notice of Interest, Lease or Mortgage
      • Item icon Letter to owners corporation with section 22 notice
    • Folder icon If required - Forgiveness of debt
      • Item icon Deed of forgiveness of debt
    • Item icon Letter to mortgagor after settlement with summary
    • Item icon Letter to mortgagee after settlement with summary
    • Item icon Summary of loan terms
    • Item icon Example invoice incorporating notification of client's rights - NSW
    • Item icon Invoice recital - Mortgage
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

Our Authors

A team of legal professionals contribute to By Lawyers' publications, all helping to ensure that content is updated regularly to reflect changes in legislation, practice, and procedure.

Meet Our Authors
Authors