Land: Mortgage Remedies Flashcards
When will a tenant’s interest be binding on a mortgagor?
Registered Land
- legal tenancy up to 7 years
- equitable tenancy up to 7 years if the tenant is in actual occupation
Unregistered Land
- legal tenancy granted before mortgage was created
- equitable tenancy protected by entry as estates contract C(iv) Land Charge
What risk do beneficial owners who are not on the title represent to mortgagors? How can this be mitigated?
May prevent ability to repossess by staying in occupation
- eg non-owner who contributed to purchase price and has resulting trust
Must overreach benefit by paying to two or more legal owners
What remedies do mortgagors have (general)?
- sue for debt
- any time of legal date of redemption
- in practice not useful - take possession
- technically available at any time
- but if land includes dwelling need court permission - Forclose
- only after legal date of redemption
- become legal owner by court order - Sell
- after legal date of redemption
- subject to conditions before can be exercised - right to appoint receiver
- common in commercial cases
When can a mortgagor exercise right to sell?
- Created by Deed
- Legal date of redemption has passed
- One of following
- interest payments are more than 2 months in arrears
- there has been written request for repayment of capital and no payment for 3 months
- breach of some other term in mortgage (eg. keeping proper insurance) - Right to sell arises automatically
When is the order of priority a relevant consideration for mortgage?
If there are multiple mortgages on the property and not enough money to pay all off
What is the rule of priority of mortgages for Unregistered Land?
- mortgagee who has title deeds
- other mortgages by order of registration as Class C land charge
What is the rule of priority for Registered Land?
- ranked by order of registration
- equitable will be higher than legal if registered first
