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Australia - Real Estate Finance

Types of security: what sort of security is typically created or entered into by an investor who is borrowing to acquire or develop real estate?

Real estate as security: Which assets and rights are considered to be real estate or real rights over which security can be granted to a lender?

Restrictions for foreign lenders: Are there restrictions on granting security over real estate to foreign lenders, and, if so what are they?

Taxes and fees: Are taxes or fees paid on the granting and enforcement of security over real estate, such as documentary taxes, registration fees and notaries fees?

Trusts: Is the concept of a trust or a split between legal ownership and beneficial ownership recognised?

Corporate Governance: Does the law lay down any rules which must be complied with before a corporate entity can give valid security over its real estate assets, for example ''financial assistance'' rules and ''corporate benefit'' rules?

Restrictions on payments to foreign lenders: Are there any restrictions on re-payments being made to a foreign lender under a security document or loan agreement?

Priority of security: Is it possible for existing secured debt to become postponed to newly created debt in any circumstances in this country, whether by agreement or otherwise? If so, how does this happen?

Trading of debt. Is Secured debt traded between lenders? If so, how is a transfer of the debt to another lender effected?

Jurisdictions: Will a clause in a security document making a foreign law apply be recognised and applied by the local courts? Does local law always apply in certain circumstances?

Environmental Liability: Can a lender holding or enforcing security over real estate in this country be liable under environmental laws, even if it did not cause any pollution of the real estate?

Enforcement of Security: When a borrower is in default, are there any formalities required or obstacles to be overcome before the lender is able to enforce its security over real estate?

Non-Insolvency procedures: Are there any schemes or arrangements which can be implemented in relation to a debtor company or business which is in financial difficulties (other than insolvency proceedings)? How do they affect the rights of a lender with security?

Effect of borrower's insolvency: Are any security interests created by a borrower in favour of a lender made void if the borrower becomes insolvent? Are there any other effects?

Order of payment: In what order are creditors paid on a debtor's insolvency, and if more than one creditor holds the same security interest over the same real estate asset, how is that situation resolved?

Imperfect Security: If a security interest has not been validly perfected, what is the position of the holder of that security if the borrower becomes insolvent?