05 May How can you check ownership of goods for business sale?
The New Personal Properties Securities Act 2009 (PPSA) explained
How can you check ownership of goods for business sale?
What is PPSA?
The PPSA is legislation which changes the way security interests in personal property are dealt with across Australia.
The PPSA rewrites the law on traditional securities such as mortgages and charges and will extend to retention of title, bailment and lease arrangements and will operate in a manner that is completely new to Australian financiers.
The PPSA legislation has created the online Personal Property Securities Register (PPSR) .
The PPSR creates an accessible real time online register and for most consumers, businesses and financiers will be the most important way to perfect security interests in personal property.
What is “Personal Property”?
Personal Property is basically property other than land, buildings and fixtures.
It includes physical goods including artwork, electrical goods, jewellery, motor vehicles, trailers and boats , machinery and crops as well as intangible property such as intellectual property or financial property such as shares.
What are “Security Interests”?
The PPSA states that all transactions that, in substance, create an interest in personal property to secure payment or the performance of an obligation are security interests.
Under this functional approach, the form of the transaction and the location of title are irrelevant.
Some examples of security interests are charges, mortgages (excluding a mortgage over land or water rights), conditional sale agreements, hire purchase agreements, trust receipts/units, book debts, consignments, assignments and other contractual rights.
Why is it important? Legal title is not enough!
The PPSA represents a new way in which security of title to personal property is applied in Australia.
The scope of the PPSA is very broad and applies to interests in all property except for land. It includes interests granted by all entities including companies and individuals and applies to financiers.
In the most fundamental change to take effect on personal property law concepts, certain lease and bailment arrangements (including dealer floor plan arrangements) will be treated as security interests as will certain retention of title (ROT) arrangements.
Therefore legal title itself may not protect an owner from loss of its property.
For example, bailment financiers, lessors and ROT suppliers will be required to register their arrangements to obtain protection under the PPSA.
How it works?
An individual granting a security interest is the a ‘grantor’. The object or thing over which the security interest is taken is known as the ‘collateral’. The ‘secured party’ is the person who takes or holds the security interest from the grantor.
The PPSA contemplates several levels that will be applied in determining the value to the secured party.
The first of the vales is ‘attachment’ and requires the grantor to have rights in the collateral (or can transfer rights) and that the secured party gives value or the grantor creates an interest.
Enforceability of the security interest against third parties requires attachment and one of the following: possession, control or a signed security agreement.
The final element is ‘perfection’ of the security interest, which will generally require attachment and one of registration, possession or control.
Under the PPSA, secured parties who hold unperfected interests will lose priority to those who hold perfected ones.
The PPSA establishes a new framework to enforce security interests.
Chapter 4 of the PPSA includes rules about security interests on insolvency, the duties owed by secured parties and the powers of sale and other remedies available to them.
The rules deal with seizure, disposal or retention of collateral, and steps to be taken after a security interest in collateral has been enforced, that is following a default by a debtor, secured parties, taking into account priority rules, will seek to enforce their security interests.
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