Australian Capital Territory Current Acts

LAND TITLES ACT 1925 - SECT 92A

    (1)     In this section:

"mortgage" includes an encumbrance, and mortgagee and mortgagor have corresponding meanings.

    (2)     Where—

        (a)     2 or more memoranda of mortgage on land, or on an interest in land, under this Act have been registered under this Act; and

        (b)     the land charged by each of those mortgages is the same and no other land is charged by any of those mortgages;

the relative priorities that those 2 or any 2 or more of those memoranda have by reason of section 48 (6) or of this section may, by memorandum of variation, be varied so that those memoranda shall be entitled in priority the one over the other in the order in which, by the memorandum of variation, they are expressed to have priority.

Note 1     A fee may be determined under s 139 (Determination of fees, charges and other amounts) for lodgment of a memorandum of variation.

Note 2     If a form is approved under s 140 (Approved forms) for a memorandum, the form must be used.

    (3)     A memorandum of variation referred to in subsection (2) shall be signed in the presence of a witness—

        (a)     by the mortgagee under each of the mortgages the priority of the memorandum of which is to be varied; and

        (b)     where the assent of the mortgagor is necessary in order to render the variation effective against him or her, by the mortgagor.

Note     The execution of an instrument lodged for registration by a legal practitioner or mortgagee corporation is not required to be witnessed because certification for the instrument is given (see s 48BD and E-Conveyancing Law, s 11).

    (4)     If—

        (a)     in addition to the memoranda of mortgage the priorities of which are to be varied, there is registered under this Act another memorandum of mortgage charging the whole or any part of the land charged by those memoranda; and

        (b)     that other memorandum of mortgage has priority over 1 or more of those memoranda of mortgage but not over the remaining memorandum or memoranda of mortgage; and

        (c)     it is not intended that the priority that that other memorandum of mortgage has by reason of section 48 (3) or of this section be varied by the memorandum of variation;

the memorandum of variation shall also be signed in the presence of a witness by the mortgagee under that other memorandum of mortgage.

    (5)     After lodgment of a memorandum of variation, the registrar-general shall—

        (a)     register the memorandum of variation; and

        (b)     make such entries in the register as are necessary, in relation to—

              (i)     the memoranda of mortgage the relative priorities of which are to be varied; and

              (ii)     any other memorandum of mortgage of the kind referred to in subsection (4).

    (6)     After the registration of a memorandum of variation, the memoranda of mortgage the relative priorities of which are affected by the memorandum shall be entitled in priority the one over the other in the order in which, by the memorandum of variation, they are expressed to have priority.