week seventeen Flashcards
how is a mortgage defined in s 5 LTA 2017
a charge over an estate or interest in land created by a mortgagor under this Act, a purpose of which is to secure the performance of an obligation to pay money
how is a mortgagee defined under s 5 LTA 2017
- a person to whom a mortgage of an estate or interest in the land is given; and
- the transferee of any mortgage
how is a mortgagor defined under s 5 LTA 2017
means the person who is the owner of an estate or interest in land that is subject to a mortgage
a mortgage is a security interest. what does it create?
- a personal interest
- an interest in land
is a mortgagor liable to pay the full amount of the loan even if selling the property doesn’t cover it all?
yes, bank can sue for the balance
what does s 99 of the LTA 2017 state
“a mortgage … takes effect only as security and not as a transfer of the estate or interest charged”
- once debt is repaid, mortgagee must discharge/release the mortgage so the mortgagor (RO) keeps the property free from that mortgage - mortgagee does not take a transfer of that estate or interest
the rule giving transfer of the estate or interest to the mortgagee was abolished by PLA 2007 s 117
what is the priority of mortgage instruments under s 35 LTA 2017
priority in the order in which they are registered
what are the usual characteristics of a mortgage
- mortgagor liable to pay debt or perform an obligation
- mortgagee has right to use property for satisfaction of debt of performance of obligation
- when debt repaid or obligation performed: mortgagor has right to redeem mortgaged property and mortgagee liable to release mortgage
what is a legal mortgage
s 100 LTA 2017
- mortgage instrument must be used to register a mortgage of an estate or interest in land
it must be executed by mortgagor and contain the prescribed information
it is obtained by completing registration on computer register and vests a legal estate in the mortgagee. a registered mortgagee gains the protection of the indefeasibility provisions in the Land Transfer Act 2017. The mortgage must be discharged
what is an equitable mortgage
an unregistered mortgage - a contract that does not vest any legal estate or interest in the mortgagee but still acts as security.
the contract must satisfy writing requirements of s 25 PLA 2007 or there must be evidence of an act of part performance.
it is only enforceable against those with notice of it
what is the credit contracts and consumer finance act 2003
focuses on consumer credit rather than business credit - a mortgage is a credit contract coming under this Act.
purposes:
- protect interests of consumers with credit contracts, consumer leases and buy-back transactions
- to require creditors to be responsible lenders under ‘consumer credit contracts’
- to provide for adequate disclosure
- to provide rules for general ‘credit contracts’
what is a consumer credit contract
consumer credit contract - debtor is a natural person and credit is to be used wholly or predominately for personal, domestic or household purposes. interest or credit fees are payable or a security interest may be taken and among other things, creditor carries on a business of providing credit or the contract results from an introduction of one party to another by a paid advisor or broker
what does a credit contract mean under CCCFA s 7
a contract under which credit is or may be provided
is a mortgage a consumer credit contract or a credit contract
can be both
under part V CCCFA 2003 s 120, court may reopen a credit contract if?
- it is oppressive
- a party has (or is about to) exercise a power under the contract in an oppressive manner
- a party has been induced to enter into the contract by oppressive means
