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Mortgages

SA

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

1 Matter Plan

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.

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.
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1 Matter Plan Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Mortgages (SA)
  • 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 ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • 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
    The parties to a real estate mortgage are called the 'mortgagor' and 'mortgagee'. The mortgagor, or borrower, is the party who mortgages the property as security for the mortgage debt. The mortgagee, or lender, of the mortgage debt, is the person to whom the secured property is mortgaged. The ...

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  • 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
    • Item icon Client authorisation
      A client authorisation enables a client to authorise a solicitor or conveyancer to act on their behalf for an electronic transaction. Although the authorisation is similar to a power of attorney, legislation specifically states that a client authorisation is not a power of attorney. When ...

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    • Folder icon Library of identity and authorisation forms - SA
      • 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 Annexure with verifier statement text
    • 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 - SA
    • Item icon Conveyancers costs disclosure - SA
    • 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 The National Mortgage Form
      All eligible mortgages, discharges of mortgages and transfers 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 ...

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    • Item icon National Mortgage Form – completed in PEXA
    • Item icon Loan agreements and Registered memorandum
      The mortgage must be supported by a loan agreement between the mortgagee and the mortgagor. The guide 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 found ...

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    • Item icon Mortgage linked loan agreement
    • Item icon Standard terms document - Registered memorandum 12402293
    • Item icon Electronic lodgement
      All eligible mortgages, discharges of mortgages and transfers of mortgages must be lodged electronically.

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    • Item icon Second mortgages
      A second or subsequent mortgage has the same form as a first mortgage. Any number of mortgages may be granted over a property if the mortgagee is either satisfied that the mortgagor still retains sufficient equity in the property to support another mortgage or is prepared to take another mortgage ...

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    • Item icon Stamp duty
      Duty on mortgages and discharges of mortgages executed on and after 1 July 2009 has been abolished. Up to 30 June 2009, a stamp duty was payable on a mortgage before the transaction instrument could be registered. Now, unstamped non-dutiable mortgages are accepted for registration at the Lands ...

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    • Item icon Collateral mortgages
      A collateral security is one given in addition to the principal security and is independent of, but subordinate to, the principal security. A collateral mortgage, therefore, is a mortgage relating to the same debt as the principal security, often referred to as a primary instrument. The mortgage ...

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

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    • Item icon National credit code
      The National Credit Code replaced the existing state and territory based consumer credit codes with effect from 1 July 2010. It is found in Schedule 1 to the National Consumer Credit Protection Act. The National Credit Code has a broad effect on mortgages. Section 7 of the National Credit Code ...

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    • 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 upon registration. However the mortgage will only be enforceable against the innocent party to the extent of the mortgage debt and so reference must be made ...

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    • Item icon Personalty
      As from 30 January 2012 the PPSA legislation governs the priorities between competing interests. Security interests, formerly known as charges, are registered with the Personal Property Securities Register under the Personal Property Securities Act. Charges registered at ASIC before 30 January 2012 ...

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    • Folder icon If required - Old system
      • Item icon General law mortgage
    • Folder icon If required - Ancillary documents
      • Item icon Annexure - blank
      • Item icon Annexure with verifier statement text
      • Item icon Statutory declaration - blank - SA
      • Item icon Clause - Statutory declaration by identifier
      • Item icon Standard terms and conditions - mortgage, lease, encumbrance
      • 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 - SA
    • 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 company 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 - SA
      • 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 Independent legal advice for third party mortgagors and guarantors
        Where a third party is to provide the security for a loan, the lender usually requires evidence that the mortgagors have received independent legal advice about the transaction. This has the dual function of simultaneously overcoming any special disability on the part of the borrower and any ...

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      • Item icon Acknowledgement of legal advice - Borrower
      • Item icon Acknowledgement of legal advice - Guarantor
      • Item icon Consent to same solicitor legal advice - Borrower guarantor
      • Item icon Declaration by borrower
      • Item icon Declaration by third party for borrower
      • Item icon Certificate of independent financial advice
      • Item icon Interpreter's certificate
    • Folder icon Priorities, guarantees and acknowledgements
      • Item icon Deed of priority
      • Item icon Variation of order of priority
      • Item icon Deed of guarantee and explanation
      • Item icon Acknowledgement of loan
      • Item icon Acknowledgement of loan secured by mortgage
      • Item icon Acknowledgement of loan secured by caveat
      • Item icon Acknowledgement of debt arising from judgment secured by mortgage
      • Item icon Acknowledgement of loan secured by deposit of title deeds
    • Folder icon Caveat
      • Item icon Caveats
        The Torrens system of land ownership is based on registration of interests on a certificate of title 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 ...

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      • Item icon Caveat
      • Item icon Withdrawal of caveat
      • Item icon Withdrawal of caveat - Registrar General
  • 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, and any other obligations fulfilled, the mortgagor has the right to have the mortgagee’s interest in the secured property discharged. If there are two or more mortgagees entitled jointly, the discharge may be signed by one on behalf of them all: s ...

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      • Item icon Discharge of mortgage
      • Item icon General law discharge of mortgage
      • Item icon Deed of forgiveness of debt
    • Folder icon Transfer
      • Item icon Transfer of mortgage
        Sections 96 and 97 of the Real Property Act contemplate that land subject to a mortgage or other encumbrances may be transferred. Timely notice of the transfer should be given to the mortgagor so that payments due under the mortgage are made to the correct person.

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      • Item icon Transfer of mortgage, encumbrance or lease
      • Item icon Notice of transfer of mortgage
      • Item icon Transfer by mortgagee exercising power of sale
    • 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 general law mortgage
    • Folder icon Variation
      • Item icon Variation of mortgage
        Once a mortgage has been registered, it can be varied. A variation of mortgage requires the endorsed consent of any subsequent mortgagees and/or chargees to its registration on title. The certificate of title is required to be produced for registration. A mortgage can be varied as to the principal ...

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      • Item icon Application for the variation of order of priority
      • Item icon Extension of mortgage
      • Item icon Deed of variation of general law mortgage
  • Folder icon G. Default
    • Item icon Default
      Every mortgage contains a power in the mortgagee to sell the mortgaged premises on the mortgagor’s default. This is the most important remedy enabling the mortgagee to ensure repayment of an advance. The default usually, but not always, relates to a default in payment of the principal sum secured ...

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    • 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 the Real Property Act allows the mortgagor one month in which to remedy the breach. This period can be, and often is, varied in the mortgage, but ...

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    • Item icon Obtaining possession
      Section 137 of the Act gives the mortgagee the power to take possession of the secured property. See Part 17 Ejectment for the procedure. The mortgagor may vacate the property voluntarily. If not, the mortgagee will have to obtain the issue of a warrant for possession from the Supreme Court. This ...

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    • Item icon Power of foreclosure
      Foreclosure is the process by which the mortgagee seeks to extinguish the equity of redemption and vest the mortgaged property absolutely in the mortgagee. This means that, as absolute owner, the mortgagee can deal with the property beneficially and not as mortgagee exercising a power of sale under ...

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    • Item icon Farm debt mediation
      A Farm Financial Strategy agreed between the South Australian Farmers’ Federation, Australian Bankers’ Association, Primary Industries and Regions South Australia, Rural Financial Counselling Service SA Inc. and the Law Society of South Australia allows for a voluntary mediation process to resolve ...

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    • Item icon Notice to pay
    • Item icon Letter to mortgagor with notice to pay
    • Item icon Letter to encumbrancee with less priority advising exercising power of sale
    • Item icon Deed of forgiveness of debt
  • Folder icon H. Settlement and finalising the matter
    • Item icon Letter to mortgagor's solicitor advising ready for settlement
    • Item icon Finalising the matter
      It is not intended here to provide precedents for use in institutional lending or lending by organisations in the business of lending, but rather to provide straightforward documentation for those many one-off occasions that money is either borrowed from or lent to clients. Various statutory and ...

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    • 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 - SA
    • Item icon Invoice recital - Mortgage
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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