Q&As

I noticed my client's security document was amended under hand not by deed. Is the amendment effective?

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Published on LexisPSL on 03/08/2016

The following Banking & Finance Q&A provides comprehensive and up to date legal information covering:

  • I noticed my client's security document was amended under hand not by deed. Is the amendment effective?
  • When does a security document need to be executed as a deed?
  • What form should an amendment to a security document take?
  • What happens if a document should have been executed as a deed but was executed under hand only?

I noticed my client's security document was amended under hand not by deed. Is the amendment effective?

There are many reasons why it might be necessary to amend a security document—for example the description of the liabilities secured by the document might change, or chargors could be removed from or inserted into the document. For more information on how to amend a security document and the key issues to consider in doing this, see Practice Note: Amending security documents.

The first step is to check whether the security document and any amendment to it were each required to be executed as a deed, as not every security document needs to be executed as a deed. In some cases, execution under hand will be sufficient for the security document and any amendment to it to take effect.

When does a security document need to be executed as a deed?

A borrower should execute a security document by way of deed if that document:

  1. PAA 1971, s 1(1) contains a power of attorney

  2. effects a transfer of land, or

  3. is a mortgage or charge of land or other property (whether legal or equitable) and the mortgagee or chargee is to have

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