In some situations, the consent of your client - and perhaps other interest holders - is needed for the registration of an instrument. Here’s what you need to know about mortgagee, caveator and chargeholder consents.
Consents are a legal requirement and exist to ensure that someone with an existing interest in a title:
- is aware of any transaction that may affect their interest
- is not disadvantaged by a transaction (eg.variation of mortgage increasing the priority amount of a prior mortgage) without their knowledge and consent, and
- has agreed to any change to the title that may affect their interest (eg creation or surrender of an easement).
The practitioner certifying and signing an instrument must ensure they hold the appropriate consent (if applicable). This means before you complete a certification, you must determine if a consent is required and ensure the consent has been obtained.
If a lodged instrument does not display the certification but the consent is required as listed in one of the tables below, the consent should be attached as an image to the instrument.
Types of consent
Caveator or claimant consent
Caveator or claimant consent is needed when an instrument creates an interest in land and is not on the list of exclusions specified in section 141(5) of the Land Transfer Act 1952. An example of this is when a Notice for Claim is filed. Refer to the article below for more information.
Mortgagee or encumbrancee consent is needed in a number of statutory provisions relating to the Land Transfer Act 1952. Refer to the article below for more information.
Statutory land charges, charging orders and other consents
Where land subject to a statutory land charge or charging order is being transferred or otherwise dealt with, it will generally be necessary to either register a discharge or obtain the consent of the chargeholder. Refer to the article below for more information.
Territorial authority consents
The consent of the territorial authority is required if a Surrender of Easement (SE, TSE, PSE), Variation of Easement (VE) or Merger of Easement (MEE) affects a compulsory easement (ie. the easement was included in the Memorandum of Easements on the title plan).