THE TRANSCRIPTION AND MORTGAGE ACT

s. 3 - Documents to be transcribed
1. every deed witnessing
  1. the transfer inter vivos of any immovable property
  2. a declaration in relation to any immovable property
  3. the renunciation to any right in relation to immovable property
  4. any pledge of immovable property (antichrese) or any servitude or right of use (droit d'usage) or residence (droit d'habitation) in any immovable property
2. every judgment declaring the existence of any right in immovable property
3. every judgment of adjudication
4. every deed importing renunciation of any right (any pledge of immovable property (antichrese) or any servitude or right of use (droit d'usage) or residence (droit d'habitation) in any immovable property)
5. every judgment declaring the existence of any right (any pledge of immovable property (antichrese) or any servitude or right of use (droit d'usage) or residence (droit d'habitation) in any immovable property)
6. every deed witnessing the lease of rural property (bail a ferme)
7. every deed or judgment witnessing the discharge or transfer of rent payable whether in cash or in kind under a rural property lease and not due under the lease at the date of payment
8. every deed witnessing the lease of house property (bail a loyer) of more than 3 years duration
9. every deed or judgment witnessing the discharge or transfer of rent under a house property lease exceeding one year and not due under the lease at the date of payment
10. every affidavit or deed of notoriety setting out the heirs and beneficiaries of deceased owners of immovable property
11. every renunciation of a heir to his rights in a succession under article 784 of the Code Napoleon made before the Master and Registrar
12. Every retraction of renunciation under article 790 of the Code Napoleon
13. any deed or document witnessing the transfer or lease by way of crédit bail under article 1831 of the Code Civil Mauricien of movable and immovable property in such form and manner as may be prescribed
14. Certificate of Transfer of Undertaking issued under section 346A of the Companies Act
15. s. 7 - The Conservator shall at the request of any interested person, deliver a certificate
s. 4 - Transcription of document on death of landowner
1. an affidavit or a notarial deed to be drawn up within 6 months from the date of death
2. s. 4A - Penalty
  1. Where the affidavit or notarial deed has not been presented within the time limit prescribed by section 4, the heirs, beneficiaries or the executors or the notary in charge of the succession shall jointly and severally be liable to a penalty of Rs 500 payable to the Registrar-General.
3. s . 4B - No fee to be levied
  1. No fee shall be levied for the transcription of the affidavit or notarial deed
s. 5 - Documents not transcribed
1. no right in immovable property under a deed or judgment shall be maintained against a third party whose rights are secured by law over the immovable property to which the deed or judgment applies, unless the deed or judgment has been transcribed.
2. A right under a lease of house property which has not been transcribed may be maintained against third parties for a period not exceeding 3 years.
s. 6 -Judgments extinguishing real rights
1. Every judgment decreeing the cancellation (resolution), nullity or rescission, either in whole or in part, of any transcribed deed or judgment shall, within one month of the judgment becoming final, be entered in the margin of the register where the deed or judgment has been transcribed.
2. The attorney who obtained the judgment, shall under a penalty not exceeding 500 rupees and of damages, cause the entry to be made by transmitting a memorandum (bordereau) of it, prepared and signed by him, to the Conservator, who shall give a receipt.
  1. Where an attorney fails, interested party may cause the entry to be made by any other attorney.
s. 8 - Inscription by creditors
1. a creditor who has a mortgage or a privilege under articles 2123, 2127 or 2128 of the Code Napoleon and whose title is prior to the date of any document specified in section 3 may, not later than 14 days of the transcription of any such document cause his rights to be inscribed against the previous owner.
  1. No inscription taken outside the time limit specified shall be valid.
  2. A vendor or co-partner (co-partageant) of immovable property may, not more than 45 days from the date of the sale or partition and notwithstanding the transcription of any other deed in the interval, cause the privilege to which he is entitled under articles 2108 and 2109 of the Code Napoleon to be inscribed.
s. 11 - Non-renewal of creditor's inscription
1. In case of sale on forcible ejectment, creditors who have their rights inscribed at the date of the adjudication, may be collocated on the division of the sale price, although their inscriptions have not been renewed within the 40 years prescribed.
2. In the case of non-renewal, the creditor shall not sue the purchaser by way of folle enchere, nor have any right of recourse (droit de suite) against third parties (tiers acquereurs).
  1. shall apply to every sale by order of court so far as regards the rights of folle enchere and of recourse, which rights the creditor shall lose unless he has renewed his inscription within the prescribed 40 years.
s. 13 - Mortgage for credits opened
1. The owner of immovable property may grant on that property a mortgage for a fixed sum, for a credit opened to him, whether the amount is paid at once or by successive instalments.
2. The mortgage shall take rank from the date of its inscription, whatever be the dates of each successive payment which may be proved by written vouchers.
3. Where a credit is opened and is renewable yearly wholly or partly for several consecutive years not exceeding 40 years in all, no fresh mortgage or inscription shall be required after each annual settlement.
4. The mortgage given and the inscription taken, by virtue of the original deed opening the credit, shall guarantee, up to the amount of the inscription taken, the payment of the definitive balance proved by written vouchers as may be due at the expiration of the credit.
s. 15 - Inscription not null for want of form
1. The omission of one or more of the formalities prescribed by the Code Napoleon for the inscription of mortgages or privileges shall not per se involve the absolute nullity of the inscription, subject to the court's power to annul the inscription or reduce the force and effect of it where any real prejudice has been caused by the omission.
s. 41 - Inscriptions dispensed from renewal
1. Notwithstanding article 2154 of the Code Napoleon, the inscription taken against a guardian or the husband of a married woman
  1. may not be renewed while the guardianship or marriage is in force
  2. must be renewed within one year following the end of the guardianship or the dissolution of the marriage
  3. s. 42 - Inscription after marriage or guardianship
    1. Where a legal mortgage has not been renewed within the year following the end of the guardianship or the dissolution of the marriage, the mortgages inscribed shall, in regard to third parties, bear date only from the date of any inscription which may be taken after that time.
s. 43 - Transfers of wife's mortgage
1. No transfer or renunciation by a wife of her legal mortgage shall be valid unless it is embodied in authentic deed.
  1. Any person in whose favour a transfer is made,shall only be vested with the mortgage as regards third parties from -
    1. the date of the inscription of the deed witnessing the transfer or renunciation
    2. in the case of a subrogation, the date on which an entry in respect of the subrogation is made in the margin of the register where the legal mortgage is inscribed
2. No renunciation of a legal mortgage shall be inscribed except where the renunciation constitutes a subrogation
3. Where a legal mortgage is on different days transferred to more than one person, the rights of those persons to the mortgage shall be determined by the dates of those inscriptions or entries
s. 43 - Inscription of conditional deed of loan
1. A mortgage granted under a conditional deed of loan shall rank from the date of inscription irrespective of the date of payment.
s. 47 - Forcible ejectment
1. Any adjudication made pursuant to a sale under the sale of immovable Property Act shall clear all legal mortgages not inscribed on the properties so sold.
2. any guardian or subguardian may produce claims at the order for the distribution of the price of the immovable property sold in accordance with section 11 (1).
s. 48 - Authentic deeds and judgments
1. Every authentic deed or judgment shall be transcribed by scanning the original deed or judgment filed with the Conservator and by saving the scanned copy in the Digital Cadastral Database (DCDB) kept and maintained in electronic form by the Ministry responsible for the subject of land surveys.
2. Where the original judgment is not available, a certified copy of the original duly certified by the person who files it shall be scanned and saved in the DCDB
3. The original deed or judgment or certified copy of the judgment, as the case may be, shall be returned to the person who filed the deed or judgment, within 48 hours from the time of deposit with the Conservator and after the Conservator has endorsed on it a memorial to the effect that the deed or judgment has been transcribed, scanned and saved in the DCDB
4. The scanned copy of the deed or judgment or copy of judgment, as the case may be, shall be saved in the DCDB
s. 48B - Transcription of deeds executed abroad
1. The transcription of a deed executed or a judgment obtained outside Mauritius shall be effected by filing in the Mortgage Office the original, or a certified copy, or a verbatim extract, of the deed or judgment which shall then be transcribed by the Conservator, by scanning and saving a scanned copy thereof in the DCDB
2. The original or a certified copy, or a verbatim extract, of the deed or judgment shall be returned to the person who filed it after endorsement by the Conservator of the transcription.
s. 49 - Transcription of deed of renunciation and retraction
1. The transcription of a deed of renunciation or retraction shall be effected within 7 days of the renunciation or retraction not related to immovable property by filing in the Mortgage office one original deed or a certified copy of the original, as the case may be, which shall be scanned and saved in the DCDB
  1. shall satisfy the requirements of section 48(3) and (4).
2. The original deed or a certified copy of the original, as the case may be, shall be returned to the person who filed it, within 48 hours, after the Conservator has endorsed on it a memorial to the effect that the original deed or a certified copy of the original has been scanned and transcribed.
  1. The Conservator may reject any original deed or a certified copy of the original which does not satisfy any of the requirements of section 48(3) and (4).
s. 50 - Transcription of other documents
1. The transcription of a seizure under the Sale of Immovable Property Act shall be effected in the manner specified in section 48 by filing in the Mortgage Office the original memorandum of seizure or deed, together with a certified copy of it, which shall be scanned and saved in the DCDB referred to in section 48(1)(a).
s 53 - Defences of creditors of possessor
1. Where the possessor of immovable property under the operation of the laws of prescription renounces his rights under those laws, his creditors or any person claiming under him, may sustain those rights of prescription.
s. 54 - Exemption from proportional duty
1. No proportional duty shall be levied by the Conservator on inscriptions of legal mortgage taken for or on behalf of married women or against a guardian.
s 55 - Preservation of mortgages
1. The preservation of mortgages (la conservation des hypotheques) implies the performance of all formalities required by law for regularising, transcribing, giving effect to, or otherwise maintaining the validity of mortgage deeds.
s. 56 - Duties of Conservator
1. vested in the Conservator.
2. the Conservator shall transcribe transfers of property and any other deeds required or allowed by law to be transcribed, and levy the fees and other payments accruing to the Consolidated Fund in connection with his duties.
3. Registered sales of immovables by sous-seing prive may be transcribed.
4. The Conservator shall make available for collection any deed or document within 48 hours of the date of payment of any fees or other payment on the deed or document.
s. 58 - Domicile of Conservator
1. The domicile (domicile de droit) of the Conservator shall be at the office of the Conservator and that domicile shall continue as long as the responsibility lasts, even after he has ceased to hold office.
2. Where the Conservator resigns, the resignation shall not be accepted until his successor has assumed office.
s. 59 - Repertoire to be kept by Conservator
1. In addition to the registers specified in articles 2196 to 2203 of the Code Napoleon the Conservator shall keep a register called the Repertoire in which he shall enter in order of deposit, and under a special account opened in the name of every party affected by any deed, a summary of all inscriptions or other transactions concerning immovable property, together with a reference to the volume and number of the register in which the deeds have been copied or noted.
s. 60 - Fees, dues and charges
1. All fees, dues and charges shall be paid in advance, and the Conservator's receipt for them shall be written in words and figures on the deed in respect of which they are levied.
s. 61 - Duration of inscriptions
1. an inscription shall be valid for a period of 40 years from its date.
2. An inscription may be renewed within the period specified and such renewal shall be made in the form set out in the Fifth Schedule and shall have the same legal effect as an inscription.
3. shall apply to inscriptions made ex-officio by the Conservator.

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THE TRANSCRIPTION AND MORTGAGE ACT

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