The introduction of the Electronic Conveyancing National Law (ECNL), with its emphasis on the verification of identity (VOI) of the mortgagor by a mortgagee, is expected to reduce the registration of forged mortgages. However, we argue that a major deficiency in the ECNL is the failure to incorporate "careless mortgagee" provisions as appear in the Queensland, New South Wales and Victorian Torrens statutes. The result is that the law in the remaining Australian jurisdictions is uncertain as to the effect of a registered forged mortgage to a non-fraudulent mortgagee who has failed to undertake mortgagor VOI. In Western Australia the divergence in the law is even more pronounced by the enactment of s 105(3)–(5) of the Transfer of Land Act 1893. The purpose of this article is to explore the ECNL, the careless mortgagee provisions and s 105(3)–(5) TLA and to consider the potential impact of each on three classic mortgage fraud cases. We conclude that careless mortgagee provisions ought to be included in all jurisdictions and s 105(3)–(5) ought to be repealed.
|Journal||Property Law Review|
|Publication status||Published - 2017|