Real Property Act 1900

Mortgagee must confirm identity of mortgagor Before presenting a mortgage for lodgment under this Act, the mortgagee must take reasonable steps to ensure that the person who executed the mortgage, or on whose behalf the mortgage was executed, as mortgagor is the same person who is, or is to become, the registered proprietor of the land that is security for the payment of the debt to which the mortgage relates.

Without limiting the generality of subsection (1), the mortgagee is to be considered as having taken reasonable steps to ensure the identity of the mortgagor under subsection (1) if the mortgagee has taken the steps prescribed by the conveyancing rules.

Record-keeping requirements A mortgagee must keep for a period of 7 years from the date of registration of the mortgage under this Act (or for such other period as may be prescribed by the regulations)—

a written record of the steps taken by the mortgagee to comply with subsection (1), or

a copy of any document obtained by the mortgagee to comply with subsection (1).

Mortgagee to answer questions and produce documents The Registrar-General, in determining whether or not this section has been complied with, may at any time require the mortgagee—

to answer questions in relation to the steps taken by the mortgagee to comply with subsection (1), and

to produce for inspection any records kept under subsection (3).

If a person fails to comply with a requirement made under subsection (4), the Registrar-General may—

in relation to a registered mortgage—make a recording in the Register, with respect to the relevant land, to that effect, and

in relation to a mortgage that has not been registered—refuse to register, or reject, the mortgage in accordance with section 39 (1A) or refuse to make any recording or entry in the Register or take any other action in respect of the mortgage.

Cancellation of recordings in the Register The Registrar-General may cancel, in such manner as the Registrar-General considers appropriate, any recording in the Register with respect to a mortgage if the Registrar-General is of the opinion—

that the execution of the mortgage involved fraud against the registered proprietor of the mortgaged land, and

that the mortgagee—

has failed to comply with subsection (1), or

had actual or constructive notice that the mortgagor was not the same person as the person who was, or was about to become, the registered proprietor of the land that is security for the payment of the debt to which the mortgage relates.

Before cancelling a recording of a mortgage in the Register under subsection (6), the Registrar-General must give notice of the proposed cancellation to the mortgagee and may also give notice to any other person that the Registrar-General considers should be notified of the cancellation. Section 12A (2) and (3) apply to and with respect to a notice given under this section.

Application to transferee of a mortgage This section applies to the transferee of a mortgage in the same way that it applies to a mortgagee (that is, requiring the transferee of a mortgage to take reasonable steps to ensure that the person who executed the mortgage as mortgagor is the same person who is, or is about to become, the registered proprietor of the land that is security for the payment of the debt to which the mortgage relates). Accordingly, a reference in this section to—

the presentation of a mortgage includes a reference to the presentation of a transfer of mortgage, and

the mortgagee includes a reference to the transferee of the mortgage, and

the date of the registration of the mortgage includes a reference to the date of registration of the transfer of mortgage.