Land Agents, Brokers and Valuers (Mortgage Financing) Regulations 1988 (SA)
SOUTH AUSTRALIA
being
No. 230 of 1988:
Gaz . 10 November 1988, p. 1718
1. These regulations may be cited as the
2. These regulations will come into operation on 1 January, 1989.
3. (1) In these regulations—
"the Act" means the
Land Agents, Brokers and Valuers Act, 1973 :"borrower", in relation to a mortgage, means the person by whom money is payable pursuant
to the mortgage:
"contributory mortgage" means a mortgage to secure money contributed by two or more
lenders otherwise than on a joint account:
"lender", in relation to a mortgage, means a person to whom money is repayable pursuant to
the mortgage as a mortgagee or as a beneficiary under a trust in respect of the mortgage.
(2) For the purposes of these regulations, a mortgage is arranged by a mortgage financier if, as a result of negotiations conducted by the financier on behalf of the lender or both the lender and the borrower, a mortgage is granted, or a mortgage or an interest in a mortgage is assigned, as security for a loan.
4. Mortgage financiers are exempt from the provisions of the Act other than Parts I, VIII, IX and XI in relation to their operations as mortgage financiers.
5. (1) A person must, within 14 days after commencing to carry on business as a mortgage financier, notify the Commissioner in writing of that fact.
(2) A person carrying on business as a mortgage financier at the commencement of these regulations must, within 28 days after that commencement, notify the Commissioner in writing that the person is carrying on that business.
(3) A notice under subregulation (1) or (2) must contain the following information:
if the financier is a natural person—the financier’s full name, date of birth and residential address; | |
if the financier is a corporation—the name of the corporation, the place of its incorporation and its registered corporate office; | |
the address of each place at which the financier carries on business as such; | |
any business name under which the financier carries on that business; | |
if the business is carried on in partnership with any other person (whether a natural person or corporation)—the name and address of each partner. |
(4) If—
a mortgage financier ceases to carry on business as such; | |
or | |
any other change occurs so that the information furnished to the Commissioner under this regulation in relation to the financier is inaccurate or incomplete, |
the financier must, within 14 days, notify the Commissioner in writing of that fact and of the particulars necessary for correction of the information held by the Commissioner in relation to the financier.
6. (1) A mortgage financier must not make any payment to the borrower under a mortgage arranged by the financier out of money received from the lender except as authorized by the prior written authority of the lender.
(2) The authority required under subregulation (1) must be in the form set out in Part I or Part II of schedule 1.
7. (1) A mortgage financier must not, without the prior written authority of the lenders, arrange a contributory mortgage under which the money to be lent is to be advanced otherwise than in a single lump sum.
(2) A mortgage financier must not arrange a contributory mortgage where the money to be lent is to be advanced to the borrower in stages out of money received by the financier from the lenders unless the financier—
has received the full amount to be contributed by the lenders; | |
or | |
holds an unconditional guarantee given by a bank (within the meaning of the |
8. A mortgage financier must not act for both the lender and the borrower in arranging any mortgage except with the prior written authority of both.
9. (1) A mortgage financier who arranges a mortgage and receives or is to receive trust money in connection with the transaction must keep a register of mortgages and, as soon as practicable after arranging the mortgage—
enter in the register the particulars specified in schedule 2 relating to the mortgage; | |
and | |
forward to the lender a summary of mortgage containing the particulars referred to in paragraph |
(2) Where, as a result of negotiations conducted by a mortgage financier, a mortgage arranged by the financier is varied, the financier must as soon as practicable after the variation—
amend the particulars in the register of mortgages relating to the mortgage so as to reflect the variation; | |
and | |
forward to the lender a new summary of mortgage containing the particulars amended as referred to in paragraph |
(3) Where, as a result of negotiations conducted by a mortgage financier, a change occurs in the lenders under a contributory mortgage arranged by the financier, the financier must as soon as practicable after that change—
amend the particulars in the register of mortgages relating to the mortgage so as to reflect that change; | |
and | |
forward to the new lender a summary of mortgage containing the particulars specified in schedule 2 relating to the mortgage. |
10. A mortgage financier who arranges a mortgage must—
keep all written authorities obtained from the lender or borrower in connection with the transaction; | |
keep the mortgage document and any certificate of title, insurance policy or other deeds or documents relating to the transaction unless directed by the lender to deliver them to some other person; | |
and | |
as soon as practicable after it comes into the possession of the financier furnish the lender with a copy of each authority, mortgage document and certificate of title relating to the transaction. |
11. A mortgage financier who contravenes, or fails to comply with, a provision of these
regulations is guilty of an offence.
Penalty: $2 000.
SCHEDULE 1
PART I—MORTGAGE INVESTMENT AUTHORITY
(To be completed and obtained for each mortgage except
where a General Mortgage Investment Authority is applicable)
TO: | .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . |
(Insert name and address of lender’s mortgage financier)
1. Total principal sum to be advanced $ ........... in one lump sum (or by a first advance of $ ................ and
|
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ).
2. My contribution $. .. .. .. .. . .
3. Estimated value of security $ ....................... established by (e.g. last sale price and date, valuation or opinion of ............................. and brief details).
(name)
4. | Address of security: | .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . . |
5. | Borrower: | .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . |
(name and address)
6. Term of loan ......................................... months/years.
7. Interest rate. .. .. .. per cent per annum payable (quarterly/yearly, etc.).
8. |
|
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .
(name and address)
9. The total principal sum is to be advanced by way of a first mortgage (or by way of a .......................... mortgage the amount(s) of $ .................. being secured by prior mortgage(s)).
10. All correspondence is to be sent to me/us at my/our above address until further notice.
11. (Insert any other special conditions or circumstances and additional instructions.)
(Where this Authority is provided in relation to a second or subsequent mortgage the following additional
paragraph must be inserted and underlined.)
I ACCEPT THAT ANY RIGHTS OF THE LENDER UNDER THIS MORTGAGE ARE SUBJECT TO AND SECONDARY TO THE RIGHTS OF THE LENDER(S) UNDER THE PRIOR MORTGAGE(S) SECURED ON THIS SECURITY AS NOTED ABOVE.
Signature(s) .........................
.........................
Lender(s) ............................
............................
PART II—GENERAL MORTGAGE INVESTMENT AUTHORITY
(To be obtained only where a continuing instruction is to be given to a mortgage financier to advance money
on first mortgage investments without the lender previously specifying any particular first mortgage security.)
I/We | .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . . |
(name and address)
confirm my/our instructions to you to advance at your discretion the sum of $ ................ now held by you on
my/our behalf on first mortgage security to be held in the name of | .. .. .. .. .. .. .. .. .. .. .. .. .. .. . . |
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .
(name and address)
and I/We acknowledge that the money to be advanced under any such first mortgage may be contributed by
two or more lenders (including myself/ourselves) but will not exceed ................ per centum of the estimated
value of the security as determined by valuation by a licensed land valuer.
All correspondence is to be sent to me/us at my/our above address until further notice:
I/We may cancel this authority at any time by written instruction to you.
Signature(s) .........................
.........................
Lender(s) ............................
............................
SCHEDULE 2
PARTICULARS TO BE SPECIFIED IN MORTGAGE REGISTER AND IN
SUMMARY OF MORTGAGE
1. Name and address of lender.
2. Name and address of borrower.
3. Amount of principal sum lent.
4. The date on which the principal sum was lent.
5. The date on which the principal sum is repayable.
6. The rate of interest and the dates on which each instalment of interest will fall due for payment.
7. The address of the property forming security for the loan and where applicable title particulars.
8. The registration or dealing number, certificate number or other identification as relevant.
9. Where relevant, insurance particulars.
10. Any other desired information.
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