Transfer by mortgagee under power of sale

Form  01TP (PDF 130 KB)

Dealing type - TP

Legislation - s58 Real Property Act 1900

Stamp duty - Required.  The number of title references indicated by the Office of State Revenue must agree with Note (A).

Any alteration to the title reference, to the estate being from leasehold to fee simple, tenancy, interest/share, consideration, or change to the names of the parties must be marked. A minor change in spelling that does not alter the identity of a party may be ignored. The addition of a name must be marked.

Not required where a change in estate is to a lesser estate.

Certificate of Title - Required for:

  • the land being transferred
  • the servient tenement where an easement is included.

Not required for a transfer of a lease.

NOS form - Required for:

  • a change of the First Schedule
  • a change of the lessee of a Crown land tenure Perpetual lease.

Panels 1, 2, 3, 4 and 5 require completion.

Not required for a time-share title.

Standard form of Caveat - Dealing to be referred to Legal Services to ascertain if caveat prevents registration except where the interest claimed is pursuant to an unregistered mortgage or loan agreement, in which case an unqualified caveat will be removed on registration of the transfer.

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

Minister's consent may be required for certain Crown land tenures and Crown land Real Property Act leases.

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

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

  • the mortgagee’s power of sale for Torrens Title mortgages [4.50] – [4.60]
  • procedures on default under Torrens Title mortgages [4.70] – [4.120]
  • registration of a transfer by mortgagee under power of sale [4.130]
  • transfer by mortgagee under power of sale (general requirements, aspects of the approved form, proof of default and effects of registration) [4.300] – [4.340]
  • interplay between a caveat and the mortgagee’s transfer [4.450] – [4.510]
  • appointment of receivers (advantages, how are receivers appointed and power of receivers) [4.200] – [4.240]
  • transfer based on appointment of receiver (general requirements, aspects of the approved form, proof of default and effects of registration) [4.350] – [4.390]
  • appointment of attorney (the power conferred – conditions and limitations, proof of power, dealing with the attorney) [4.250] – [4.280]
  • transfer based on power of attorney (general requirements, aspects of the approved form, proof of default and effects of registration) [4.400] – [4.440].

Note  For a transfer under power of sale of a mortgage of lease (including a Crown Land lease) use a Transfer of Lease, Mortgage or Charge form 01TL. The requirements for a Transfer Under Power Of Sale also apply.

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

A transfer that attempts to dispose of part of the land in a multiple ownership folio, e.g. 'as regards the part formerly comprised in ...', and does not resolve or attempt to resolve the multiple ownership, may contravene s23F and s23G Conveyancing Act 1919.

(C)  The full name of the registered proprietor must be stated and must be identical to the name of the mortgagor as shown on the Register.

(D)  The full name of the transferor must be stated and must be identical to the name of the mortgagee in the relevant mortgage as shown on the Register.

If the mortgagee is shown as the registered proprietor and the mortgagor's interest is protected by a Registrar General's caveat, the transfer must be accompanied by a statutory declaration giving evidence of the default and its continuation up to the present.

(E)  The registered number of the mortgage pursuant to which the power of sale is being exercised must be stated. Where the mortgage is an Old System mortgage shown in the Second Schedule, i.e. 'Book ... No. ... Mortgage to ...', the requirements are the same as for an Real Property Act mortgage.

If other than an estate in fee simple is being transferred, the words 'fee simple' must be deleted and the appropriate estate inserted. If more than one type of estate is being transferred, the particular estate of the references to title at Note (A) must be indicated.

Note  A charge pursuant to the Contaminated Land Management Act 1997 has priority over all other interests. The date of the mortgage is optional.

The consideration must be stated and must agree with the purchase price stated in the NOS form.

(F)  A writ recorded before the subject mortgage must be noted in the Encumbrances, or the Court must consent to the dealing, or the writ must be removed.

Any dealing noted in the Encumbrances of the transfer, except for the subject mortgage, will remain on the Register.

Any mortgage or charge that is to remain on the Register and does not have priority over the mortgage that is the subject of the power of sale must be noted in the Encumbrances.

(G)  The full name of the transferee must be stated.

(H)  Tenancy/shares must be stated where there is more than one transferee.

(I)  The dealing must be executed by the transferor and transferee and be witnessed, or it may be executed on their behalf as follows:

Attorney and witnessed Solicitor or Barrister Authorised Officer and witnessed Licensed Conveyancer
Transferor Tick Cross Tick Cross
Transferee Tick Tick Tick Tick

Note  The registered proprietor of the estate or interest affected by the subject mortgage is not required to execute the dealing.

See execution requirements for companies, witnesses etc. pages.  

See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [365.200].

(J) This section is to be completed where the notice of sale data (see NOS form above) has been forwarded through the eNOS facility.

Notes

  • Any dealing noted in the Encumbrances of the transfer, except for the subject mortgage, will remain on the Register.
  • All dealings registered prior to or that have priority over the subject mortgage will remain on the Register.
  • The subject mortgage and any mortgage that does not have priority over the subject mortgage and is not noted in the Encumbrances will be removed on registration of the transfer.
  • An equitable charge or a writ recorded after the subject mortgage and not noted in the Encumbrances will be removed on registration of the transfer.
  • All current leases will remain on the Register.

Staff processing information

If in order proceed with registration except for the following.

Refer to S2

Where a mortgage other than the subject mortgage, or a charge is noted in the Encumbrances.

Refer to SD52

Where the transfer severs a joint tenancy.

Refer to SM99

Where an easement:

  • is included in the transfer
  • was created by the subject mortgage

Refer to SD31

A transfer involving:

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

Refer to Legal through the Senior Examining Officer

A transfer:

  • where a caveat, except for an unqualified caveat claiming an estate or interest pursuant to an unregistered mortgage, is noted on the Register. Note  A caveat claiming an estate or interest pursuant to an unregistered charge must be referred to Legal. 
  • where the consideration is nominal or other than cash.
  • where the mortgagee is shown as the registered proprietor and the mortgagor is protected by a Registrar General's caveat.
  • where the transferor and transferee are not at arm's length.

Registration procedure

CODE (name)    P, C or Q  [name of transferee]

TENANCY    S, J2 etc, T etc.

To cancel the subject mortgage

NOTFN BRT FORWARD    select mortgage to be removed

NOTFN TB REMOVED    click arrow button to remove selected notification

Where the mortgage or charge is coded AA etc

PRIME CODE    code of mortgage being cancelled as shown on the Register

PRIME NO.    number of mortgage