Guidance on mortgagee sale process.
In a case involving a mortgagee sale, a practitioner made the mistake of discharging the empowering mortgage, via Landonline, prior to lodging the Power of Sale Transfer.
In this situation, a discharge is not required and should not in fact be registered as it undermines the transfer. The legal basis for effecting a mortgagee sale arises from the mortgage. A discharge of that mortgage removes the right to register the Power of Sale Transfer and leaves the mortgagee (and LINZ) with no legal authority to register the transfer.
If a mortgagee's Power of Sale has been exercised, the relevant transfer should simply be lodged for registration in Landonline using the instument code TPS. Upon registration, the transfer will operate to remove the empowering mortgage from the title, without the need for any discharge documentation, as provided in section 103 of the Land Transfer Act 2017.