Western Australia is similar to Queensland in that the Transfer of Land Act 1893 (“WA Act”) also provides that a first mortgagee may not prohibit the registration of a second mortgage or treat it as a default.
Whilst WA is a subscriber to PEXA, there are still paper titles in WA as well. Whether you are lodging your
second mortgage in paper form or via PEXA, you will be required to certify to Landgate that you hold the
original certificate of title. This means checking if a paper certificate of title exists, and if so contacting the
first mortgagee to produce the certificate of title to you. Luckily, they cannot refuse or treat it as a default.
WA’s law consequently implies some unique considerations for lenders:
As a second mortgagee:
• You are at liberty to lodge a second mortgage at any time without enquiring with the first mortgage, but if a paper title exists, you will need to contact the first mortgagee to have it produced.
• The first mortgagee must produce the title and cannot treat the registration of the second mortgage as a default.
• A deed of priority is not required unless you wish to increase your protection from that afforded in the WA Act (this will be discussed further in our next publication on deeds of priority).
As a first mortgagee:
• You cannot stop the registration of a second mortgage or treat it as a default.
• You will need to supply the title deed to a second mortgagee to enable registration of the second mortgage if required, and may not require a deed of priority.