PART 9 PART 9 MORTGAGES
Chapter 1 Chapter 1 General
50. Right to mortgage(1) Real property or a registered interest in real property (including a registered lease) may be mortgaged by registering a mortgage.(2) Except as provided in these Regulations, a part of a lot cannot be mortgaged separate and apart from the rest of the lot.
51. Requirements for mortgage(1) In order to be registered, a mortgage shall include the following —(a) a description sufficient to identify the real property;(b) a description sufficient to identify the interest to be mortgaged;(c) a description of the debt or liability secured by the mortgage; and(d) a maturity date of the debt or liability secured by the mortgage.(2) Subsection (1) does not limit the matters that the approved form of mortgage may require to be included in order to permit registration.
52. Mortgage as charge only(1) A mortgage of real property operates only as a charge on the real property for the debt or liability secured by the mortgage.(2) For the avoidance of doubt, the mortgagor is taken to have an equity of redemption, which may not be waived by agreement or otherwise clogged by the actions of the mortgagee; provided that the rights of redemption shall not preclude the parties from agreeing to prepayment premiums or restricting periods for repayment.
53. Variation of mortgage(1) A registered mortgage may be varied by registering an instrument varying the mortgage.(2) A variation cannot add a party to, or remove a party from, the mortgage.(3) A variation does not affect prior registered mortgagees, and does not affect subsequent registered mortgagees unless they consent.
54. Discharge of mortgage(1) A registered mortgage may be discharged by registering a discharge of mortgage.(2) A discharge of mortgage may discharge the debt or liability secured for —(a) all or part of the mortgage; or(b) one or more of the mortgagors.(3) On the discharge being registered —(a) the mortgage is discharged; and(b) the real property is released from the mortgage, to the extent shown in the discharge.
55. Extent of discharge of mortgage
Whether the discharge releases the mortgagor from any personal obligation to repay the debt or from any other liability secured by the mortgage is a matter of construction of the discharge, the promissory note and any other instruments relating to the subject indebtedness.
Chapter 2 Chapter 2 Mortgagee's powers and remedies
56. Implied powers of mortgagees(1) A registered mortgagee of real property has the following powers on default by the mortgagor —(a) to sell the whole or part of the real property or any interest in the real property by whatever means the mortgagee, acting reasonably, determines appropriate, including by tender, public auction or by private contract;(b) to sever and sell fixtures apart from the balance of the real property;(c) to sell any easement, right or privilege of any kind over or in relation to the real property;(d) to enter into possession of the real property and receive the rents and profits from it, and, after obtaining possession, grant any easement, right or privilege of any kind over or in relation to the real property; and(e) to foreclose.(2) The powers may only be exercised in accordance with the provisions of this Chapter, but otherwise (and subject to subsection (3)) may be supplemented, varied or negated by express provision in the mortgage.(3) A mortgagee may not exercise a power under subsection (1) without first serving on the persons listed in subsection (4) a notice giving the mortgagor 30 days in which to remedy the default. If within that time the default is remedied, then the mortgagee may not exercise a power for that default.(4) The persons on whom the notice shall be served are —(a) the mortgagor;(b) any guarantor or surety of the mortgagor; and(c) any other registered mortgagee or chargee.
57. Exercise of power of sale
In exercising a power of sale, the mortgagee shall take reasonable care to obtain the market value for the real property at the time of the sale.
58. Injunction to restrain power of sale(1) The mortgagor is entitled to seek an injunction to restrain the exercise of the power of sale.(2) The Court may make the order it determines appropriate, including (if it determines it appropriate) that the sale may be restrained, without the mortgagor having to offer to redeem the mortgage.
59. Effect of transfer after sale by mortgagee(1) If a transfer in purported exercise of a power of sale by a registered mortgagee is lodged for registration, the Registrar need not enquire whether the power of sale was validly exercised.(2) On registration of the transfer, the mortgagor's interest vests in the transferee, free from —(a) any obligation to repay the debt secured by the mortgage; and(b) any other interest registered after it, except an interest to which the mortgagee has consented in writing, to which the mortgagee is a party, or which otherwise binds the mortgagee.(3) Registration of the transfer is not prevented by a caveat or covenant, if the caveat or covenant relates to an interest over which the mortgage has priority.
60. Application of proceeds of sale(1) A mortgagee who has exercised a power of sale shall apply the money received from the sale —(a) to discharge any prior registered interests to which the sale is not made subject; or(b) by paying into Court a sum to satisfy the obligations under any prior registered interests.(2) Subject to subsection (1), the mortgagee holds the money on trust —(a) first, to pay all costs and expenses properly incurred in the sale or any attempted sale;(b) second, to discharge the principal, interest, costs, and any other money and liability secured by the mortgage in such order as may be provided in the mortgage or, if no such order is provided, as the mortgagee may determine in its sole discretion;(c) third, to pay later registered interests in the order of their priority; and(d) fourth, to pay any residue to the person who appears from the Register to be entitled to the mortgaged property or to be authorised to give receipts for the proceeds of its sale.
61. Appointment of receiver(1) If a mortgage entitles the mortgagee to appoint a receiver, and the mortgagee appoints a receiver as described in subsection (3) below, the receiver —(a) may do anything in relation to the real property that the mortgagor could have done; and(b) may act as the mortgagor's agent.(2) However, if the receiver sells the real property, the receiver is subject to the same duties and responsibilities as if the mortgagee were the seller.(3) If a mortgage entitles the mortgagee to appoint a receiver, the receiver will be appointed by the Court upon application by the mortgagee and subject to any other requirements set forth in any other enactment.
62. Foreclosure(1) On application by a registered mortgagee, the Court may make an order for foreclosure.(2) If the Court makes an order for foreclosure, the Registrar shall register the order if requested by a party to the proceedings or directed by the Court.(3) On registration of the order, the mortgagor's interest in the real property vests in the mortgagee, free from all liability under mortgages or other interests registered after the mortgage, except for leases and other interests that bind the mortgagee.
Chapter 3 Chapter 3 Tacking of further advances
63. Right to tack further advances(1) Notwithstanding any other provision of these Regulations, a mortgagee (the "prior mortgagee") of real property may make further advances to rank in priority to later mortgages —(a) where the prior mortgage expressly authorises the making of further advances and for the uses specified therein (and regardless of whether the prior mortgagee has notice of the later mortgage); or(b) where the prior mortgage does not expressly authorise the making of further advances, if the later mortgagee agrees to further advances being made.(2) Subsection (1) applies only where the prior mortgage is registered (but regardless of whether the later mortgage is registered).(3) For the purposes of subsection (1), "further advance" includes the provision of further credit or accommodation (including on a current, revolving or continuing account), regardless of whether the mortgagor is a debtor or guarantor or surety for the further advance.(4) A prior mortgagee shall, upon request of any party holding an interest in the applicable real property, advise such party of any such further advances. Evidence of such further advances need not be registered.