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At common law, all forms of property other than real property; that is, all forms of property other than land and interests in land (excluding leaseholds) are personal property. Personal property is traditionally divided into two classes: chattels real (which includes leasehold interests in land, and annuities issuing out of such interests); and chattels personal (which includes all other forms of personal property, both tangible and intangible). By the equitable doctrine of conversion, certain equitable interests in land are also treated as personal property rather than as real property. The Personal Property Security Act is a significant piece of legislation that facilitates the registration and regulation of personal property security interests. The Personal Property Securities Register (PPS Register) is the national scheme that provides for the national registration of security interests. Holistic and sound legal advice in from a Commercial Lawyer may be of great utility in this modern, detailed and highly complex area of law.

The PPSA applies to most security interests in personal property. Parties are generally free to negotiate the terms of their security agreements. The PPS Register is accessible online and operates on the basis of notice rather than document registration. The PPSA applies to all security interests in both tangible and intangible personal property. Personal property is defined in the PPSA to be any kind of property other than land, fixtures, water rights or a right, entitlement or authority that is granted by a Commonwealth, state or territory law and declared by that law not to be personal property for the purposes of the PPSA. Obtaining professional legal advice from a Commercial Lawyer may be greatly beneficial to fully understand the PPSA.

The PPSA adopts a functional approach to “security interests”. This means any interest or right in personal property provided for by a transaction that in substance secures payment or performance of an obligation will be a security interest for the purposes of the legislation regardless of its form or who has title to the collateral for instance the secured property. The definition of security interest expressly includes an interest in personal property provided for by a fixed charge, floating charge, chattel mortgage, conditional sale agreement (including an agreement to sell subject to retention of title), hire purchase agreement, pledge, trust receipt, consignment, lease of goods, assignment, transfer of title or flawed asset arrangement, that in substance secures payment or performance of an obligation.  Sound legal advice from a skilled Commercial Lawyer may be advantageous to ensure that any Personal property security interest is properly registered and protected.

There is a great deal of complexity of the far reaching nature of the PPSA. Documents may include clauses that constitute security interests even though those clauses are only incidental to the primary purpose of the document. For example, a guarantee that includes a charging clause covering personal property becomes a security agreement and a subordination agreement or guarantee that includes turnover trust provisions and becomes a security agreement if it secures payment or performance of an obligation. It is the charging or turnover trust provisions that change the characterisation of the transaction from unsecured to secured for PPSA purposes. Furthermore, a security interest under the PPSA is likely to be characterised as a legal interest when the rights of the secured party are in competition with another person whose interest in property the subject of the security interest arises outside the PPSA. Proper legal advice in from a Commercial Lawyer may be of great assistance in explaining all features and applicability of the PPSA.

If you would like further information or wish to discuss your PPSA matter with us please do not hesitate to contact us by telephone on (02) 9233 4048 or by email to info@navado.com.au. Please peruse our "Locations" tab to see our locations.

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