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1. Overview
A Property (Seizure and Sale) Order (PSSO) lodged against land will prevent the registration of any instruments (e.g. transfers, mortgages and leases) without the written consent of the Sheriff. If the registered proprietor wants to deal with the land, the PSSO (whether current or lapsed) must be removed from the relevant certificate of title.
Even though the sale period in a PSSO has expired the PSSO must be removed before any instruments can be registered against the land. This is differs from Writs and Warrants. When a Writ or Warrant lapsed it often remained on the Title but was ignored because it had no effect. This is not the case with PSSO’s.
Fees are payable on each PSSO removed.
Removal of a PSSO is achieved by:
- Discharge of Property (Seizure and Sale) Order (e-form)
- Transfer by Mortgagee Power of sale
- Transfer by the Sheriff
- Transfer of Land (Sale for Rates)
2. Application to Register a Discharge of a Property (Seizure and Sale) Order2 3
A Discharge of Property (Seizure and Sale) Order e-form has been designed to remove a PSSO lodged under the Civil Judgments Enforcement Act 2004 (the Act). The e-form “Property (Seizure and Sale) Order – Discharge” can be found on the Land titling and search forms page .
A PSSO (whether current or expired) must be removed from the certificate of title before dealing with the land (i.e. selling or mortgaging etc.).
The Discharge of Property (Seizure and Sale) Order e-form has four Reasons for enabling the discharge, being:
Option 1. The applicant is the judgement creditor.
Option 2. The judgment to which the order relates has been satisfied.
Option 3. The order has been cancelled by the court that issues it.
Option 4. The sale period has expired.
The appropriate option must be selected in the e-form.
To register a discharge of a PSSO, the applicant can be:
- the judgment creditor using Option 1 (no evidence is required)
- any person using Option 4 if the sale period has expired (no evidence is required)
or
- any person using Options 2 or 3 if the judgment to which the order relates has been satisfied or the order has been cancelled. Supporting evidence and a statutory declaration is to be lodged with the discharge of a PSSO e-form, see Supporting Evidence below.
Note: A writ or warrant endorsed on a title that was still current as at 1 May 2005 was deemed to be a PSSO and automatically bound the land for 6 months from the date of its lodgement. These Writs or Warrants must be discharged using a discharge of a PSSO eform using one of the 4 options.
2Section updated 16/01/2024
3Section updated 15/05/2024
2.1. Supporting Evidence
Where options 2 or 3 are selected the applicant must provide supporting evidence by way of statutory declaration and any other supporting evidence.
In addition to the statutory declaration, other evidence may come in the form of:
- An order issued by the issuing court cancelling the PSSO
- Evidence of satisfaction by way of letter from the judgement creditor or letter from a debt collector.
Note: Bank statements or payment receipts may not include sufficient information/evidence to identify the payer and/or the recipient of payment.
2.2. Execution of the Discharge of a Property (Seizure and Sale) Order
Subject to the option chosen, a discharge of a PSSO e-form can be executed in the following ways:
- Option One; only the judgement creditor(s) can sign the form and all judgement creditor(s) must sign.
- Options 2, 3 and 4 can be made by anyone (must be a legal entity, real person or corporation)
See relevant execution of documents (SIG-01 Signing and Witnessing of Documents1)
1Link added 13/04/2021
2.3 Lodgement via an Electronic Lodgment Network4
A legal practitioner who is a Subscriber to an Electronic Lodgment Network Operator (ELNO), may lodge a Discharge of Property (Seizure and Sale) Order electronically.
- If the judgement to which the order relates has been satisfied OR the order has been cancelled by the court that issued it, evidence in support is required to be obtained, uploaded and attached to the Discharge of Property (Seizure and Sale) Order document prior to lodgement. Otherwise, optional.
Refer to Residual Document Table.
Discharge of Property (Seizure and Sale) Orders will continue to be accepted for lodgement in paper and do not require a Request to Accept Paper Lodgement coversheet
4Section added 15/05/2024
3. By Exercise of a Mortgagee’s Power of Sale
A PSSO that is still current is removed as an encumbrance on the registration of a mortgagee’s power of sale transfer if the written consent of the Sheriff is obtained and filed with the transfer.
If the sale period of a PSSO has expired, a Discharge of Property (Seizure and Sale) Order must be lodged with the transfer. (See TFR-08 Transfer by Mortgagee/Debenture Holder/Annuitant (Chargee) exercising Power of Sale.)
4. By Transfer by the Sheriff
It is essential that the sale period in the PSSO is still current when the Sheriff sells the land to satisfy a judgement debt. A PSSO is automatically removed as an encumbrance on the registration of a transfer, by way of sale by the Sheriff. A PSSO registered prior to the PSSO effecting the sale must be removed by a to Discharge of a PSSO Ortder e-form. (See TFR-10 Transfer Pursuant to a Property (Seizure and Sale Order.)
5. By Sale for Rates
Where a Local Government exercises its power to sell land for non-payment of rates under s.6.75 of the Local Government Act 1995 and lodges a transfer to give effect to such sale, an expired PSSO against the land is removed as an encumbrance. A PSSO that is still current is removed as an encumbrance on the registration of the transfer if the written consent of the Sheriff is obtained and filed with the transfer. (See TFR-09 Transfers by Sale for Rates (Local Government Act 1995).