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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 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 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 by which the performance of a monetary obligation, most commonly a loan, is secured against real property. The owner of the security property who grants a mortgage over their land is known as the mortgagor. They are usually also the borrower, or one of several co-borrowers, ...

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  • Item icon Summary of the process
    The usual steps in acting for a private lender/mortgagor include:

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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 authorises a solicitor or conveyancer, known as a representative, to act on their client's behalf for an electronic transaction; to sign and lodge documents and complete the financial settlement. Although the authorisation is similar to a power of attorney, legislation ...

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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 Taking instructions in mortgage matters
      The Retainer Instructions on the matter plan prompt for all necessary information. The retainer should clearly identify which party is the client, even if another party is paying the fees. Rule 11 of the South Australian Legal Profession Conduct Rules requires lawyers to avoid conflicts of ...

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    • 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 client with costs agreement and summary of loan terms
    • Item icon Costs agreement - SA
    • Item icon Conveyancers costs disclosure - SA
    • Item icon Summary of loan terms
    • 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
    • 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 Confidentiality deed
        • 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
  • Folder icon B. Initial considerations
    • Item icon National Credit Code
      The National Credit Code is Schedule 1 of the National Consumer Credit Protection Act 2009. It generally does not apply to private lending arrangements because the lender is not in the business of providing credit. Section 7(5) of the Code provides that it only applies if, at the time the ...

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    • Item icon Business purpose declaration
    • Item icon Legal and equitable mortgages
      Under the Torrens system, a mortgage can be registered with Land Services SA in the appropriate form as a statutory charge on the title, creating a legal interest in the land under s 128 of the Real Property Act 1886. This is known as a legal mortgage. A second or subsequent legal mortgage ...

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    • Item icon Due diligence
      Due diligence when acting for the lender/mortgagee A private mortgagee should carry out thorough due diligence before advancing funds secured by a mortgage.

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    • Item icon Valuations
      While a current valuation is required to ensure there is sufficient equity in the security property to cover the loan, the type of valuation required will depend on the mortgagee's assessment of risk and the nature of the parties' relationship. Valuation methods include, in descending order of ...

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    • Item icon Consents
      Parties that might need to consent to a mortgage The consent of other parties with an interest in the property will often be required, including:

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    • Item icon Second mortgages and priority
      Any mortgage after the first is commonly referred to as a second mortgage, even if it is in fact a third or fourth. A second or subsequent mortgage secures a new loan or monetary obligation against an already mortgaged property. If the first mortgage is registered, and the second mortgage wishes to ...

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    • Item icon Deeds of consent and priority
      In the absence of any agreement about priority between mortgagees, the date and time of registration of a mortgage determines its priority, and legal mortgages have priority over equitable mortgages. Under ss 56(5) and (6) of the Real Property Act 1886, the Registrar-General can vary the order ...

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    • Item icon Caveats
      The Torrens title system is based on the registration of interests, providing absolute proof of ownership. Caveats can be lodged under s 191 and recorded in the register, allowing property interests that cannot be registered, or that the interest holder does not wish to register, to be noted ...

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    • Item icon Priority notices
      Under s 154A of the Real Property Act 1886 a person who intends to lodge a dealing to give effect to a legal or equitable interest in land can lodge a priority notice. For example, if a second mortgagee lends money on the security of a second mortgage, but cannot register it until the first ...

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    • Folder icon Priorities, guarantees and acknowledgements
      • Item icon Deed of priority
      • Item icon Application for the 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 C. The mortgage
    • Item icon Creation and registration
      Interests in land can only be created and disposed of in writing: s 29 of the Law of Property Act 1936. Torrens mortgages will not effectively create a legal interest in land until registered: s 57 Real Property Act 1886. They cannot be registered unless they are in the approved form, and ...

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    • Item icon The National Mortgage Form
      All mortgages, discharges, and variations of mortgages must be lodged electronically using the National Mortgage Form. 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 ...

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    • Item icon National Mortgage Form – completed in PEXA
    • Item icon Business purpose declaration
    • Item icon Loan agreements and registered memoranda
      The mortgage must be supported by a loan agreement, available on the matter plan. The National Mortgage Form provides for a registered memorandum to be incorporated by reference into the mortgage.

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    • Item icon Mortgage linked loan agreement
    • Item icon Standard terms document - Registered memorandum 12402293
    • Folder icon If required - No security loan agreement
      • Item icon No security loan agreement
    • Item icon Electronic conveyancing
      Electronic lodgment Like all land dealings, mortgages must be electronically lodged by a subscriber to an Electronic Lodgment Network Operator (ELNO) such as PEXA.

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    • Folder icon Independent legal advice
      • Item icon Certificates of independent advice
        Purpose The purpose of a certificate of independent legal advice is to ensure that a person entering into a mortgage has genuinely understood the legal and practical consequences of the transaction. This is particularly important if there is any apparent risk of undue influence, vulnerability, or ...

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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 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
    • Folder icon Acting for the mortgagee
      • Item icon Letter to other side'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 Acting for the mortgagor
      • Item icon Letter to client to attend to sign mortgage
      • Item icon Letter to other side'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 Caveat
      • Item icon Caveats
        The Torrens title system is based on the registration of interests, providing absolute proof of ownership. Caveats can be lodged under s 191 and recorded in the register, allowing property interests that cannot be registered, or that the interest holder does not wish to register, to be noted ...

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      • Item icon Caveat
      • Item icon Withdrawal of caveat
      • Item icon Withdrawal of caveat - Registrar General
  • Folder icon D. If required - Discharge, transfer, assignment, and variation
    • Item icon Electronic conveyancing
      Electronic lodgment Like all land dealings, mortgages must be electronically lodged by a subscriber to an Electronic Lodgment Network Operator (ELNO) such as PEXA.

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    • Folder icon Discharge
      • Item icon Discharge of mortgage
        When the loan has been fully repaid, the mortgage can be discharged and removed from the title. If there are 2 or more mortgagees entitled jointly, the discharge may be signed by one on behalf of them all: s 143 Real Property Act. The approved form must be used and lodged along with ...

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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
        Section 97 of the Real Property Act 1886 provides that if land subject to a mortgage is transferred without the mortgage being discharged, then the transferee becomes liable for the mortgage and indemnifies the transferor. While such an arrangement is rare in practice, it is more likely in ...

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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 Assignment of mortgage
        An assignment of mortgage strictly refers to old system conveyancing, where a mortgage was a chose in action that could be assigned to another creditor by deed. Mortgages under the Torrens system are transferred from one mortgagee to another through the land titles registry system, not assigned.

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      • 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
        In private lending, the parties may agree to change the terms of the loan or security after the mortgage has been created. Common variations include altering the interest rate, principal sum, or term of the mortgage. Mortgagees cannot be added or removed by variation; the mortgage needs to be ...

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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 E. Default
    • Item icon Default
      A default under a mortgage, or mortgage-linked loan agreement, can be substantive or technical, and the consequences generally differ.

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    • Item icon Mortgagee's power of sale
      Section 133 of the Real Property Act 1886 gives a registered mortgagee the power to sell the security property if the amounts secured under the mortgage remain unpaid after the required notice is given. The power of sale is usually also an express term of the mortgage.

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    • Item icon Foreclosure
      Foreclosure is an old equitable remedy by which a court extinguishes the mortgagor’s right to redeem the property and vests the property absolutely in the mortgagee. It is different to, and distinct from, the mortgagee's statutory power of sale. It is more complicated and takes longer. Unlike the ...

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    • Item icon Obtaining possession
      Section 137 gives a mortgagee the power to take possession of the secured property. Part 17 sets out the procedure. The defaulting mortgagor may vacate the property voluntarily; however, if they do not, the mortgagee will need to commence proceedings in the Supreme Court to obtain a writ ...

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    • Item icon Notice to pay
    • Item icon Letter to other side 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 F. Settlement and finalising the matter
    • Item icon Letter to other side's solicitor advising ready for settlement
    • Item icon Finalising the matter
      Following settlement, attend to any necessary registrations and send a final letter to the client summarising the transaction, available on the matter plan.

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    • Item icon Letter to mortgagor client after settlement with summary
    • Item icon Letter to mortgagee client 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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