South Australian Current Acts

REAL PROPERTY ACT 1886 - SECT 128

128—Mortgage of land

        (1)         If land is to be charged or made security in favour of a person, a mortgage must be executed by the registered proprietor and the person.

        (2)         A mortgage lodged for registration in the Lands Titles Registration Office must be in the appropriate form.

        (3)         Certification required under section 273(1) in relation to a mortgage lodged for registration in the Lands Titles Registration Office must be provided by the mortgagee.

        (4)         If certification under section 273(1) is provided by a mortgagee in relation to a mortgage lodged for registration in the Lands Titles Registration Office, the mortgage will be taken, for the purposes of this section, to have been executed by the mortgagee.

        (5)         The Registrar-General may register a mortgage lodged for registration in the Lands Titles Registration Office that is executed solely by the mortgagee—

            (a)         if the Registrar-General is satisfied that a mortgage on the same terms as the mortgage lodged for registration (the "corresponding mortgage ) has been executed by the mortgagor as required under subsection (1) and retained by the mortgagee; and

            (b)         in a case where the mortgagee is not an ADI—if certification required under section 273(1) in relation to the mortgage has been provided—

                  (i)         by a legal practitioner or a registered conveyancer; or

                  (ii)         if the Registrar-General has given written approval for another person to provide the certification—by that person.

        (6)         If the Registrar-General registers a mortgage that is executed solely by the mortgagee, the corresponding mortgage—

            (a)         must be retained by the mortgagee until he or she ceases to be mortgagee; and

            (b)         if the mortgage is transferred under section 150—must be given to the transferee.

Maximum penalty: $5 000.

        (7)         If a mortgage is transferred under section 150, the corresponding mortgage must be retained by the transferee until he or she ceases to be mortgagee.

Maximum penalty: $5 000.

        (8)         This section only applies to land intended to be charged or made security under this Act by the registration of a mortgage.

        (9)         To avoid doubt, the execution of an instrument under this section is not required to be witnessed.