Western Australian Current Acts

TRANSFER OF LAND ACT 1893 - SECT 106

106 .         Mortgage or charge not to operate as transfer; default procedures

        (1)         Subject to Division 2 of Part 6 of the Land Administration Act 1997 in the case of conditional tenure land, a mortgage and a charge under this Act shall when registered as hereinbefore provided have effect as a security but shall not operate as a transfer of the land thereby mortgaged or charged; and in case default be made in payment of the principal sum interest or annuity secured or any part thereof respectively or in the performance or observance of any covenant expressed in any mortgage or charge or hereby declared to be implied in any mortgage and such default be continued for one month or for such other period of time as may therein for that purpose be expressly fixed the mortgagee or annuitant or his transferees may serve on the mortgagor or grantor or his transferees notice in writing to pay the money owing on such mortgage or charge or to perform and observe the aforesaid covenants (as the case may be).

        (2)         Service of the notice referred to in subsection (1) is not properly effected unless —

            (a)         the notice is delivered personally to the mortgagor or the grantor or his transferees, as the case requires; or

            (b)         the notice is sent by registered post to —

                  (i)         the address entered in the Register as the address of the mortgagor or the grantor or his transferees, as the case requires; or

                  (ii)         the address known to the mortgagee or the annuitant or his transferees as the current address of the mortgagor or the grantor or his transferees, as the case requires;

                or

            (c)         the notice is left in a conspicuous place on the mortgaged or charged land; or

            (d)         the notice is sent to the mortgagor or the grantor or the mortgagor’s or grantor’s transferees, as the case requires, in compliance with a way of sending notices electronically (for example, to an email address) that is prescribed by the regulations for the purposes of this paragraph.

        (3)         A notice may be sent under subsection (2) to the number of the facsimile machine of the mortgagor or the grantor or the mortgagor’s or grantor’s transferees, as the case requires, if, under subsection (2)(d) as in force immediately before the commencement of the Transfer of Land Amendment Act 2022 section 24(1)(b), the mortgagor, the grantor or the transferee has specified in writing that notices under this section may be served by facsimile transmission.

        [Section 106 amended: No. 81 of 1996 s. 66; No. 31 of 1997 s. 108; No. 10 of 1998 s. 69(1); No. 21 of 2022 s. 24.]