TRANSFER OF LAND ACT 1893 - SECT 121

TRANSFER OF LAND ACT 1893 - SECT 121

121 .         Foreclosure, application for order for

        (1)         Whenever default has been made in payment of the principal or interest moneys secured by a mortgage and such default shall be continued for 6 months after the time for payment mentioned in the mortgage, the mortgagee or his transferee may make application in writing to the Commissioner for an order for foreclosure.

        (1A)         Such application shall state that such default has been made and has continued for the period aforesaid and that the land mortgaged has been offered for sale at public auction by a licensed auctioneer after notice to pay was served in accordance with section 106 and that the amount of the highest bidding at such sale (which amount shall also be stated) was not sufficient to satisfy the moneys secured by such mortgage together with the expenses occasioned by such sale or that there was no bid and that notice in writing of the intention of the mortgagee or his transferee to make an application for foreclosure has been served on the mortgagor or his transferees, and also that a like notice of such intention has been served on every person appearing by the Register to have any right estate or interest to or in the mortgaged land subsequently to such mortgage.

        (1B)         Such application shall be accompanied by a certificate of the auctioneer by whom such land was put up for sale and by such further evidence in the premises as the Commissioner may require.

        (1C)         The statements made in such application shall be verified by statutory declaration.

        (2)         Service on a person of a notice of intention to apply for foreclosure is not properly effected unless —

            (a)         the notice is delivered personally to the person; or

            (b)         the notice is sent by registered post to —

                  (i)         the address entered in the Register as the address of the person; or

                  (ii)         the address known to the mortgagee or his transferees as the person’s current address;

                or

            (c)         the notice is left in a conspicuous place on the mortgaged land; or

            (d)         the notice is sent to the person in compliance with a way of sending notices electronically (for example, to an email address) that is prescribed by the regulations for the purposes of this paragraph.

        (3)         A notice may be sent under subsection (2) to the number of the person’s facsimile machine if, under subsection (2)(d) as in force immediately before the commencement of the Transfer of Land Amendment Act 2022 section 25(1)(b), the person has specified in writing to the mortgagee or the mortgagee’s transferees, as the case requires, that notices of intention under this section may be served on the person by facsimile transmission.

        [Section 121 amended: 60 Vict. No. 22 s. 3; No. 17 of 1950 s. 30; No. 81 of 1996 s. 68; No. 10 of 1998 s. 69(2); No. 19 of 2010 s. 51; No. 21 of 2022 s. 25.]