Land: Mortgages Flashcards
What is a mortgagee and mortgagor?
mortgagee
- lender
mortgagor
- borrower
How can legal mortgage be created?
Always by deed (and registered if registered land)
- Mortgage by demise
- mortgagee given long term lease over estate which terminates when debts if paid off - Legal Charge
- mortgagee acquires legal interest in land
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What can be create a mortgage over?
- Freehold
- Leasehold
- Beneficial interest
When is an equitable mortgage used?
- if granted per equitable interest (beneficial interest under trust
- failed legal mortgage
- over register land but mortgage has not be registered
Requirements
- written contract
How can mortgages be protected registered land?
Registered Land
- legal mortgage must be entered on charges register otherwise not complete
- equitable mortgage: notice or restriction
How can mortgages be protected Unregistered land?
- First mortgage: protected by physical deed
Subsequent Mortgages (no title deeds)
- legal mortgage (puisne mortgage): registered as C(i) Land Charge
- equitable mortgage for legal estate: C(iii) Land Charge
- equitable mortgage for equitable interest: mortgagee to give notice to trustees
What is the Legal Date of Redemption?
date on which full amount is to be paid back
Mortgagor cannot repay loan before this date
What is the equitable right to redeem?
when borrower can repay sum, typically one day after legal date of redemption
When can a mortgagors have the mortgage set aside?
Undue Influence may arise if:
- land is co-owned but mortgage only benefits one of the owners
- mortgage is co-owned but only one legal owner
- mortgage taken to secure the debt of another
Can be
- actual undue influence
- presumed undue influence
Lender must show
- complainant took independent legal advice prior to agreeing to mortgage
- if so then cannot be set aside
