Mortgage

Form 05M (PDF 300 KB)

Dealing type - M

Stamp duty - Required

Where the mortgage was executed before 1/7/2016, and:

  • the land mortgaged is a commercial property, or
  • the mortgagor is a corporation.

Where stamp duty is required, any alteration that increases the principal sum must be marked.

Certificate of Title - required. Also required for the servient tenement where an easement is being created by the mortgage.

NOS form - not required

Standard form of Caveat - prevents registration.

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

Note  Electronic lodgment is mandatory for all transactions involving only stand-alone Discharges of Mortgages & Mortgages or a combination of Discharges of Mortgage & Mortgages where all the mortgagees are Authorised Deposit-Taking Institutions (ADIs) and the dealings are signed on or after 1 August 2017. 

Where transactions involving only Discharges of Mortgages and Mortgages and the mortgagees are ADIs are excluded from electronic lodgment or circumstances allow the Registrar General to waive electronic lodgment under Conveyancing Rule 8.4.2, the incoming dealings must be accompanied with the Conveyancing Rules Exceptions form indicating the exemption. The Conveyancing Rules Exceptions form will be scanned with the dealing. A dealing lodged in paper accompanied by a caveator’s consent or other supporting documentation may be accepted without a Conveyancing Rules Exceptions form.

A Mortgage cannot be recorded on the common property folio of a strata scheme (s. 32(4) Strata Schemes Development Act 2015).

The dealing must not include any reference to the mortgagor or mortgagee being a trustee, executor or administrator for another party.

Minister's consent is required:

  • where so specified in the restrictions notification on the Torrens Title Register or
  • where a Crown land restriction pursuant to s102 Crown Lands Act 1989 is noted on the Torrens Title Register.

See Greg Stilianou, Land Titling Law and Practice in NSW, Lawbook Co. 2013 re:

  • introduction to the mortgage transaction [4.30]
  • mortgages of Torrens Title land and Old System land [4.40].

(A) The reference to title for the land affected by the mortgage must be stated.

A mortgage affecting part of a current lot, e.g. a mortgage of 'part of the land formerly comprised in ...', will not be accepted unless a mortgage is already registered to the same mortgagee affecting the remainder of the land in the title.

Where the mortgage is creating an easement, enter the reference to title for the servient tenement in ITS. See s56(4) Real Property Act 1900; Baalman and Wells, Land Titles Office Practice, Lawbook Co. 2001 [385.300].

(C) The full name of the mortgagor must be stated and must be identical to the name of the registered proprietor as shown on the Register. The mortgage may be for a share or interest only.

Note  Where a mortgage is only as regards the interest of a joint tenant, the mortgage is extinguished if the joint tenant dies. A Request form 11R to remove the mortgage may be lodged following the Notice Of Death form 02ND.

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

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

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

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

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

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

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

 

See execution requirements for companies, witnesses etc pages.

Staff processing information

Where paper transactions involving only Discharges of Mortgage and Mortgages where all mortgagees are ADIs are lodged without a Conveyancing Rules Exceptions form, the dealings must be accepted and a requisition raised. A dealing lodged in paper accompanied by a caveator’s consent or other supporting documentation may be accepted without a Conveyancing Rules Exceptions form.

If in order proceed with registration except for the following.

Refer to the Team Leader

Where a sole first mortgage affects a computer title that does not have a Certificate Authentication Code (CAC).

Refer to SM99

Where the mortgage appears to create an easement.

Refer to SD31

A mortgage involving:

  • an Aboriginal Association or corporation
  • the NSW/Local Aboriginal Land Council.

Refer to Legal through the Senior Examining Officer

A mortgage:

  • where there is doubt as to the corporate status of the mortgagee
  • noted on a common property of a Strata scheme or the Association property of a Community Title scheme.

Registration procedure

PRIME CODE    M (where no mortgagee code exists)

MA etc (where a mortgagee code exists in ITS)

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

Affecting the share/interest of a registered proprietor

DETAILS    As Regards The Share/Interest Of [name of mortgagor].