New South Wales Consolidated Acts

REAL PROPERTY ACT 1900 - SECT 56

56 Lands under this Act: how mortgaged or encumbered

(1) Whenever any land or estate or interest in land under the provisions of this Act is intended to be charged with, or made security for, the payment of a debt, the proprietor shall execute a mortgage in the approved form.

(1A) The Registrar-General may register a mortgage if the Registrar-General is satisfied--

(a) the mortgagee has signed the mortgage, and

(b) the mortgagee has certified (in words to the effect) that--

(i) the mortgagee holds a mortgage granted by the mortgagor, and

(ii) the mortgage held by the mortgagee is on the same terms as the mortgage lodged for registration.

(2) Whenever any such land, estate, or interest is intended to be charged with or made security for the payment of an annuity, rent-charge, or sum of money other than a debt, the proprietor shall execute a charge in the approved form.

(4) In a mortgage or charge there may be expressed to be included as appurtenant to the land mortgaged or charged any easement or profit à prendre over other land of which the mortgagor or charger is the registered proprietor and which is specified in the mortgage or charge.

(5) When an easement or profit à prendre is so expressed to be included the Registrar-General shall on registration of the mortgage or charge make such recording in the Register with respect to the easement or profit à prendre as the Registrar-General thinks fit.

(6) The easement or profit à prendre so expressed to be included shall, when the mortgage or charge is registered, be deemed to be an easement or profit à prendre appurtenant to the land mortgaged or charged for the purpose of enjoyment leasing or transfer by the mortgagee or chargee, or of foreclosure, and so that upon foreclosure by the mortgagee or lease or transfer by the mortgagee or chargee such easement or profit à prendre shall, unless expressly excluded, be created by the order for foreclosure or the lease or transfer and registration thereof.

(7) Subsections (4), (5), and (6) shall extend to instruments registered before as well as after the commencement of those subsections: Provided that it shall be optional only for the Registrar-General to comply with subsection (5) if the instrument was registered before such commencement.

(8) This section does not apply to or in respect of a covenant charge.