New South Wales Consolidated Acts

REAL PROPERTY ACT 1900 - SECT 39A

39A Treatment of certain instruments when land brought under Act

(1) In this section,
"prescribed instrument" means an instrument--

(a) that affects land not subject to the provisions of this Act,

(b) that has been registered in the General Register of Deeds kept pursuant to Division 1 of Part 23 of the Conveyancing Act 1919 or, in the case of a covenant charge, in the Register of Causes, Writs and Orders kept pursuant to that Act, and

(c) that, in the opinion of the Registrar-General, could have been registered under the provisions of this Act as a mortgage, charge or covenant charge if, at the time of its execution, the land it affects had been subject to the provisions of this Act and the instrument had been drawn in a form approved by the Registrar-General.

(2) When land that is affected by a prescribed instrument is brought under the provisions of this Act by the creation of a folio of the Register for the estate or interest of a person other than the mortgagee, chargee or covenant chargee entitled under the instrument--

(a) unless the mortgagee, chargee or covenant chargee otherwise directs, the Registrar-General shall record the instrument in the Register in such manner as the Registrar-General considers appropriate,

(b) the mortgagee, chargee or covenant chargee, as the case may be, named in a recording made under paragraph (a) shall be deemed to be registered under the provisions of this Act as proprietor of a mortgage, charge or covenant charge registered under this Act in respect of the land, and

(c) a person deemed by paragraph (b) to be a registered proprietor of a mortgage, charge or covenant charge shall be entitled to exercise the same rights, powers and remedies as if the mortgage, charge or covenant charge had been drawn in the approved form and registered in the manner provided by this Act in respect of mortgages, charges or covenant charges, as the case may be.

(3) This section does not apply to an instrument to which section 13F, 13KA or 13M applies.

(4) Nothing in this section requires the Registrar-General, when bringing land under the provisions of this Act, to create a folio of the Register for the estate or interest of a mortgagor, charger or covenant charger.