QUT ePrints

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.

[img] Accepted Version (MS Word 159kB)
Administrators only | Request a copy from author

View at publisher

Abstract

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.

Impact and interest:

Citation countsare sourced monthly from Scopus and Web of Science® citation databases.

These databases contain citations from different subsets of available publications and different time periods and thus the citation count from each is usually different. Some works are not in either database and no count is displayed. Scopus includes citations from articles published in 1996 onwards, and Web of Science® generally from 1980 onwards.

Citations counts from the Google Scholar™ indexing service can be viewed at the linked Google Scholar™ search.

ID Code: 45776
Item Type: Journal Article
Keywords: forgery, identity fraud, real peoperty, 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 12:30
Last Modified: 09 Sep 2011 12:30

Export: EndNote | Dublin Core | BibTeX

Repository Staff Only: item control page