Transfers Executed by both Receiver AND Chargee in Exercise of Power of Sale – Legal Office Notice 1 of 2015

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Section 8 and Schedule 1 of the Land and Conveyancing Law Reform Act 2009, which commenced on 1st December 2009, amended Section 51(2) of the Registration of Title Act 1964. Originally, Section 51(2) of the 1964 Act provided that a transfer of registered land must be “an instrument in the prescribed form (or in such other form as may appear to the Registrar to be sufficient to convey the land)”. The 2009 Act deleted the words in brackets, thus essentially removing the discretion of the Authority to accept forms that do not substantially conform to the prescribed forms.

Rule 67 of the Land Registration Rules 2012 provides that a transfer shall be in such one of the Forms 19, 21 to 24, 29 and 30 as may be applicable. In the case of a sale of property in realisation of security, if the transfer is by the Receiver as agent or attorney of the borrower, the transfer must be in Form 19, 21 or 22. If the transfer is by the mortgagee in exercise of its statutory power of sale, the transfer must be in Form 24. Where a Deed of Transfer purports to be made by both a Receiver and the chargee or mortgagee exercising a power of sale, it is unclear from such Deed of Transfer which prescribed Form is intended.

It should be noted that Section 62(10) of the Registration of Title Act 1964 and Rule 79 of the Land Registration Rules 2012 apply only to transfers by the registered owners of charges as mortgagees under a power of sale.

The Deed must give effect to either a transfer by the Receiver as attorney or agent of the registered owner of the lands, or a transfer by the owner of the charge that overreaches the estate or interest of the registered owner of the land. It certainly cannot do both. A transfer deed must be in only one prescribed Form that is appropriate to the nature of the transaction.

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Fergus Hayden
Deputy Registrar

27 February 2015

Updated 24 June 2015