Transfer by Mortgagee Exercising Power of Sale (T4)

Under section 132 of the Real Property Act 1886 (SA), if a mortgagor defaults and the default continues for one month (or another period set by the mortgage), the mortgagee may give written notice to pay or to remedy the default. If the default continues for a further month after the notice (or the period in the mortgage), section 133 empowers the mortgagee to sell the land by auction or private contract and to execute the instruments needed. On registration of the mortgagee's transfer, the mortgagor's interest passes to the buyer free of the mortgage and of interests the mortgage has priority over, but subject to interests that have priority to it (s 136). The proceeds are applied to costs, the mortgage debt, later mortgages and then any surplus to the mortgagor (s 135). Form T4 is the approved form, with prefix PS for freehold or Crown leasehold, and PS2 for a subsidiary interest such as a lease.

When you need it

• A registered mortgagee has sold the mortgaged land under its statutory or contractual power of sale and needs to transfer title to the buyer.
• The mortgage is over a subsidiary interest such as a registered lease (prefix PS2).
• Not for a voluntary sale by the owner, which uses Form T1 or T2.

1. 1

   Mortgage number and extent

   Insert the registered number of the mortgage under which the power of sale is exercised, and state whether the whole or part of the land in the mortgage is being sold.

2. 2

   Land description

   Describe the land by certificate of title or Crown lease, or for part, by allotment and plan, for example 'Allotment 4 in DP ... being portion of the land in CT Volume ... Folio ...'.

3. 3

   Transferor and mortgagor

   The transferor is the mortgagee: give its full name and current address, with a name tie-up if its name has changed. Then give the mortgagor's full name and current address.

4. 4

   Consideration and transferee

   Insert the sale price in words and figures. Give the buyer's full name, address and mode of holding, and the date of birth if a buyer is a minor.

5. 5

   Date, certification and tie-up

   Date the form and complete the transferee and transferor certifications, with the tie-up details at the bottom of the transferor certification. The guidance notes say an employee of a body corporate mortgagee cannot certify a power of sale transfer: a registered conveyancer or legal practitioner must.

• Power of sale transfers (prefix PS) executed on or after 8 April 2024 must be lodged electronically through an Electronic Lodgement Network Operator. The listed exemption is a dealing over part of the land in a title.
• Exempt dealings are lodged on paper with Land Services SA.
• Verification of Identity and Verification of Authority requirements must always be complied with.
• A registration fee applies. Check Land Services SA's current fee schedule and transfer fee calculator.

• The guidance notes remind the certifier that section 55A of the Law of Property Act 1936 must be complied with; this is covered by the 'correct and compliant' certification.
• Registration of the transfer is not blocked by a caveat over an interest that the mortgage has priority to (s 136(2)).
• Keep evidence of the default and the section 132 notice: the certifier must retain the evidence supporting the instrument.