Australian Capital Territory Current Acts Australian Capital Territory Current Acts(1) A trustee for sale may sell land on terms of deferred payment or otherwise.
(2) The terms of deferred payment may provide either for the purchase money being paid by instalments, or for the unpaid purchase money being secured by mortgage.
(3) If the purchase money is to be paid by instalments, the terms upon which the land is sold shall, in addition to such other provisions as the trustee may deem proper, include provisions for giving effect to the following:
(a) that part of the purchase money shall be paid on the execution of the contract of sale;
(b) that the balance of the purchase money is payable in instalments, the first not later than 3 years after the date of the contract of sale and the others at intervals of not longer than 1 year beginning on the day the first instalment is payable, and interest is payable, at least every 6 months, on any unpaid amount;
(c) that the whole of the purchase money and interest shall be payable within a period not exceeding 10 years from the date of the contract of sale;
(d) that, if an instalment (or a part of an instalment) or interest is in arrears for 6 months (or any shorter period provided in the contract), all of the purchase money is payable immediately.
(4) For subsection (3) (b), an instalment must not be payable during the first 3 years from the date of the contract of sale that is less than 5% of the purchase money, and all instalments payable after then must be equal in amount.
(5) If the unpaid purchase money is to be secured by mortgage, the terms upon which the land is sold shall, in addition to such other provisions as the trustee may deem proper, include provisions for giving effect to the following:
(a) that part of the purchase money shall be paid on the execution of the contract of sale;
(b) that the unpaid purchase money shall be secured by a registered mortgage of the land sold, with or without the security of any other property, and shall bear interest payable half-yearly or oftener on the amount from time to time unpaid;
(c) that the mortgage must contain covenants by the mortgagor to pay the principal and interest, to maintain and protect the property, and insure all buildings (if any) on the land against loss or damage by fire to their full insurable value;
(d) that the mortgagor shall not have power to make any lease of the property, unless the trustee consents in writing.
(6) Whether the purchase money is to be paid by instalments or the unpaid purchase money is to be secured by mortgage, the trustee shall not be deemed to be lending money within the meaning of section 18 so as to be bound to act in accordance with that section, and shall not be liable for any loss which may be incurred by reason only of the security being insufficient at the date of the mortgage.
(7) The part of the purchase money to be paid on the execution of the contract of sale shall not be less than the sum which a person acting with prudence would, if the land were his or her own, have accepted in the circumstances in order to sell the land to the best advantage.
(8) The trustee shall not be bound to require payment of any greater part of the purchase money before letting the purchaser into possession, or before conveying the land and taking a mortgage back, than a person acting with prudence would, if the land were his or her own, have considered as sufficient, provided that the trustee shall not convey the land and take a mortgage back until at least 1 / 10 of the purchase money has been paid.
(9) Notwithstanding that the purchase money is to be paid by instalments, the trustee may at any time after 1 / 10 of the purchase money has been paid convey the land and take a mortgage back in any case where a person acting with prudence would, if the land were his or her own, have been willing in the circumstances so to do, and in any such case the mortgage shall be in accordance with subsection (5) (b), (c) and (d), and subsection (6) applies.
(10) Any mortgage under this section may be for any period not exceeding 10 years from the date of the contract of sale.
(11) The trustee may, on such terms (if any) as he or she deems proper, by writing waive or vary any right arising from failure to comply with any term of the contract of sale or of any mortgage under this section within the proper time.
(12) Where the sale is made under the order of the Supreme Court, the provisions of this section shall apply, unless the court shall otherwise direct.
(13) This section applies to a trust except so far as the contrary intention appears in the trust instrument.