South Australian Current Acts

LAW OF PROPERTY ACT 1936 - SECT 45

45—Obligation to transfer instead of reconveying

        (1)         Where a mortgagor is entitled to redeem, then subject to compliance with the terms on compliance with which he would be entitled to require a reconveyance or surrender, or in the case of registered land a transfer of the mortgage, he shall be entitled to require the mortgagee, instead of reconveying or surrendering, to assign the mortgage debt and convey the mortgaged property, or in the case of registered land to transfer the mortgage, to any third person, as the mortgagor directs; and the mortgagee shall be bound to assign, convey, or transfer accordingly.

        (2)         The rights conferred by this section shall belong to and shall be capable of being enforced by each incumbrancer, or by the mortgagor, notwithstanding any intermediate incumbrance; but a requisition of an incumbrancer shall prevail over a requisition of the mortgagor, and, as between incumbrancers, a requisition of a prior incumbrancer shall prevail over a requisition of a subsequent incumbrancer.

        (3)         This section shall take effect notwithstanding any stipulation to the contrary.

        (4)         The foregoing provisions of this section do not apply in the case of a mortgagee being or having been in possession.