Qualified indefeasibility and the careless mortgagee

Backstrom, Michelle & Christensen, Sharon A. (2011) Qualified indefeasibility and the careless mortgagee. Australian Property Law Journal, 19(2), p. 109.

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In recent years a great deal of case law has been generated in relation to mortgages where the mortgagee has not engaged in adequate identity verification of the mortgagor and the mortgage has subsequently been found to be forged. As a result, careless mortgagee provisions operate in Queensland as an exception to indefeasibility. Similar provisions are expected to commence soon in New South Wales. This article examines the mortgagee’s position with the benefit of indefeasibility and then considers the impact of the careless mortgagee provisions on the rights of a mortgagee under a forged mortgage, concluding that the provisions significantly change the dynamic between a registered mortgagee and registered owner who has not signed the mortgage. These provisions appear to give the mortgagee a conditional indefeasibility, with the intention of reducing the State’s exposure to the payment of compensation in the case of identity fraud. They are however, more successful in the case of forgery by a third party rather than forgery by a co-owner.

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ID Code: 45776
Item Type: Journal Article
Refereed: Yes
Keywords: forgery, identity fraud, real property, forged mortgage
ISSN: 1038-5959
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2011 LexisNexis.
Deposited On: 09 Sep 2011 02:30
Last Modified: 05 Aug 2014 02:01

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