Step 4 – Certification as to Title

Once all searches and enquiries have been made, and we are ready to settle, the next step is certification as to title. This involves Bransgroves Lawyers issuing a document to you that certifyies that if you, as lender, proceed with the loan you will receive good title to the mortgage described in the certification (‘Certification’).

The Certification includes an extensive checklist of all steps taken, searches made and search data scrutinised. Any qualifications are also noted.

The Certification serves as the retainer agreement between the private mortgage lender and Bransgroves Lawyers and tells you we are ready to proceed to settlement.

The completion of the checks described in the Certification is evidenced by a copy of the relevant search document (or a screen shot) compiled into PDF that accompanies the Certification (‘Enclosures’). In this way it is transparent what has been done and what has not been done and impossible to overlook anything attested to.

Immediately prior to issuing the certification we register any PPSR interests so a copy of the registration can be included in the Enclosures.

Both the Partner and the Counter signing Partner check a number of things before certifying title. These include checking:

1. all the searches (see Step 2 – Security documents).
2. the email from the borrower’s solicitor that sent the security documents to make sure the email is a genuine email from the law firm and not a bogus domain.
3. if the documents have been wet signed, we copy and paste the signatures from the document, the identification provided and earlier dealings on the title register and then compare the signatures side by side. We claim expertise in the forensic examination of signatures – see Matthew Bransgrove’s Lexis Nexis Textbook Avoiding Mortgage Fraud in Australia.
4. the date of birth, spelling and address of the directors on the ID matches those on the company searches.
5. if there have been any changes to the company search since our preliminary search (which our search provider indicates).
6. all conditions precedent in the term sheet have been complied with.
7. all security documents:
   – have been properly executed,
   – are listed in the certification,
   – are included in the Enclosures.
8. a Partner has called the borrower’s solicitor to confirm they witnessed the security documents;
9. Austrac compliance (if we are Austrac agents of the lender);
10. any unpaid water rates, council rates and land tax are scheduled to be paid upon settlement;
11. the title searches for last minute caveats and to ensure all outgoing are scheduled to be discharged upon settlement;
12. the PPSR registrations are registered and correct (including priority);
13. any applicable trust deeds to ensure the trustee has the power to enter into the loan or guarantee;
14. for second mortgages, review the deed of priority and first mortgage ensure the priority amount is protected;
15. the scenario notes made by the partner or counter signing partner upon receipt of instructions to ensure we have satisfactory answers to requisitions;
16. we have advised (within the Certification) on any;
    – on any lease on title,
    – easements on title,
    – positive covenants.

The Certification is counter signed by a second Partner. Different Partners have different years experience working exclusively in the field of commercial mortgage advances. In all cases the combined mortgage advance experience of the certifying partners will be no less than 20 years.