Lecture 19 - mortgages

Question 1

what is a mortgage

Answer 1

its a form of proprietary security interest for the advancement of a loan or in santley v wilde a conveyance of land … as security for the payment of a debt or the discharge of some other obligation for which it is given

Question 2

how can a legal mortgage be created in unregistered land

Answer 2

under s85 lpa1925 there are 2 methods
1. the long lease method
2. the charge by way of legal mortgage

Question 3

how can a legal mortgage be created in registered land

Answer 3

under s23(1) of the 2002 lra the only method of creation of a legal mortgage in registered land is the registered charge

Question 4

what are the circumstances where equitable mortgages can arise

Answer 4

1. mortgage of equitable interest
2. informal or otherwise defective legal mortgages
3. mortgages where there is forgery
4. mortgages by deposit of title deeds
5. mortgages arising under the doctrine of proprietary estoppel

Question 5

what are the different rights mortgagors have

Answer 5

• the equitable right to redeem and the no clogs or fetters rule
• protection from unfair creditor-debtor relationships under the consumer credit act 2006
  -protection under the financial services and markets act 2000
  -powers of the mortgagor to claim possession, to grant leases, and to seek an order for sale
• setting aside of the mortgage on grounds of undue influence

Question 6

what rights does the legal mortgagee have

Answer 6

1. the right to payment under the contract
2. the right to possession
3. the power of sale
4. the remedy of foreclosure
5. the power to appoint a receiver