Rights in Security Flashcards
What are rights in securities commonly known as?
mortgages
What type of right are rights in securities?
Subordinate real rights
Definition of a security?
Any right which a creditor may hold for ensuring payment or satisfaction of his debt and which is in addition to his right of action and execution
What is a personal security?
Not relevant for property law
- when person guarentees debt will b paid (guarantor)
What are the two other types of security?
Real security
and
functional security
What is a real security?
- Creditor holds real right n addition to person right
- so coupled with ownership = 2 real rights in same thing (e.g. house)
What is a functional security?
Creditor retains ownership until debt is paid off in full
How do you make a security real?
- Publicity principle
- must be registered
Enforcement?
Sale with surplus returned to debtor
What obligation is put on the selling creditor?
CFR(S)A 1970 s25
Must sell for best price possible
CFR(S)A 1970 s25
What act is all about standard securities?
Conveyancing and Feudal Reform (Scotland ) Act 1970
In what 5 ways can a security be extinguished?
- Discharge of debt
- Property no longer exists
- Renunciation
- After enforcement
- Confusion
What are the types of voluntary security?
- Pledge
- Floating charges
- Standard Securities
What are the type of involuntary securities?
1) Tacit securities
2) Judicial securities
3) those by public bodies
What are tacit securities?
Lien and landlords hypothetic
What are judicial securities?
Diligences
Pledge can be held in what type of thing?
Corporeal moveables
How is a pledge created?
by delivery of the good in terms of an agreement for the property to secure an obligation owed
Is a pledge normally in writing?
No
What counts as delivery?
Creditor having and retaining possession
How do you enforce a pledge?
Creditor applies to sheriff
- Licensed pawnbrokers can sell if debt not paid in 6 months
- where debt not exceeding £75 and no sale then property is forfeited to the pawnbroker
Who does floating charges relate to?
Only companies
Are floating charges normally in writing?
Yes
When must floating charges be registered?
In 21 days
What is the nature of floating charges?
They float over the companies assets including whatever comes in but excluding whatever leaves.
What are standard securities?
Securities over heritable property
What act governs them?
Conveyance and Feudal Reform (S) Act 1970
What does s1(2)(b) dictate about their formation?
- must be in writing
How do they become real?
Must be registered
What does such 3 say are the standard conditions of standard securities?
- be assigned
- prior tempore portior jure (first come first served) applies
sch 3
Sch 3 Obligations on the debtor
- maintain and secure property
- not to demolish part or all of building
- have insurance
- need consent to let property
Sch 3 obligations on the creditor?
- regulates enforcement and redemption procedures
Enforcement of standard securities?
- Principal remedy is sale
- calling up notice needed (s19 CFR(S)Z 1970)
- person leaves = done
- doesn’t leave = court action of Order for removal
Do standard securities need to be in writing?
Yes
What two forms can they be writing in?
- Form A (loan plus security)
- Form B (security only
What is a lien?
real right to retain property until the discharge of obligations
What is a special lien?
Retention until performance of specific obligation/ specific debt
What is a general lien?
Law permits retention for more than one obligation : all sums owed
What is essential to lien’s?
Possession
Lien’s mainly concern corporeal property
Wilmington Trust Company v Rolls Royce
But can also concern land
Binning v Brotherstones
Enforcement of a lien?
Court Authority to sell unless debtor consents
Landlords hypothec applies when?
When there is a default in commercial rent payments
Enforcement of landlords hypothec?
Apply to court for power of sale
