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FLK 2 - Land Law > 5. Mortgages > Flashcards

5. Mortgages Flashcards

1
Q

What is a mortgage?

A
  • Lender provides money as a loan
  • Borrower provides security by creating a mortgage over the property in favour of the lender.
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1
Q

What is the status of the borrower’s legal estate when a mortgage is created?

A

When a mortgage is created, the borrower still holds the legal estate (freehold or leasehold) subject to the mortgage, making the mortgage a third party right over the land.

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2
Q

What does the creation of a mortgage allow the lender to do?

A

The creation of a mortgage allows the lender to enforce its security against the borrower.

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3
Q

Is a mortgage capable of being legal?

A
  • Yes - capable of being legal interests in land
  • Can be described as a ‘charge by way of legal mortgage’
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4
Q

What is the legal requirement for creating a mortgage concerning a legal estate, and how does equity address cases where the document does not meet these requirements?

A

To create a legal mortgage for a legal estate, a deed is required.

If a document, lacks the requirements of a deed, equity may recognize an equitable mortgage.

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5
Q

Can a mortgage be established for an equitable interest, and what are the prerequisites for this?

A

Yes, a mortgage can be created over an equitable interest

This requires compliance with s 53(1) LPA 1925 - must be in writing and signed.

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6
Q

What are the remedies available to a lender of a legal mortgage?

A
  • possession
  • the power of sale
  • debt action
  • appointing a receiver
  • foreclosure
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7
Q

What are the two remedies a lender can exercise to bring a mortgage to an end?

A

Power of Sale + Foreclosure

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8
Q

How is the lender’s right to possession used?

A

Usually used as a precursor to the exercise of another remedy - either exercising the power of sale or appointing a receiver.

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9
Q

Does the borrower need to be in default for the lender to exercise their right to possession?

A

No - but in practice a lender will only exercise this right if the borrower is in default.

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10
Q

What are the two meanings of possession?

A
  1. Taking physical possession (ousting the borrowers); or
  2. Where the property is let, directing that the tenants pay their rent to the lender (rather than the borrower).
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11
Q

Does a lender need a court order for possession?

A

If they can retake possession without breaching s 6 of the Criminal Law Act, a court order is not needed.

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12
Q

What are possession proceedings for a residential property?

A
  • Lender must comply with pre-action protocol
  • Attempt to resolve any arrears prior to seeking possession
  • Weighted in favour of enabling the borrower to continue to make payments and live in the property.
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13
Q

What is the effect of section 36 AJA on possession proceedings?

A

Allows the borrower to ask the court to exercise its discretion to:
* adjourn proceedings; or
* on making an order for possession, suspend execution or postpone the date for possession.

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14
Q

When does section 36 AJA apply?

A
  • lender has started proceedings;
  • property includes a dwelling-house; and
  • borrower is likely within a reasonable period to pay arrears
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15
Q

What does a reasonable period for the purposes of section 36 AJA include?

A

Includes the full remaining period of the mortgage

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16
Q

For section 36 AJA to apply what does the court need?

A

Proof from the borrower, in the form of a detailed financial plan, demonstrating that they can pay both the mortgage installments as they fall due and any arrears.

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17
Q

In regards to possession, what can the lender do where the property subject to the mortgage is producing income?

A

Lender can use the income to pay debt owed

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18
Q

What is a lender’s strict duty to account?

A

For a lender to use income from a property to pay debt owed, they must:
* account to the borrower for any sum beyond that which is due to them; and
* manage the property with due diligence, accounting to the borrower for any income that should have been received had the property been managed correctly.

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19
Q

What are the requirements of a power of sale?

A

Power of sale must:
* exist;
* have arisen; and
* become exercisable.

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20
Q

How can a power of sale exist?

A

Either be:
* expressly stated within the mortgage deed; or
* implied into every legal mortgage.

21
Q

How can a power of sale arise (two ways)?

A

For the power of sale to have arisen, the mortgage money must be due.

  1. Legal date for redemption has passed
  2. Any installment of the mortgage money has become due
22
Q

How does a power of sale become exercisable?

A

Either:
1. Set out expressly in mortgage deed; OR
2. Lender will rely on one of the following:
* lender gives notice to borrower to repay entire debt + borrower has not paid 3 months after notice; OR
* borrowers fails to pay 2 months of mortgage payments; OR
* borrower breached a term of the mortgage (other than non-payment of mortgage money/interest)

23
Q

What does the lender check on sale (power of sale)?

A

check that the power of sale has arisen + become exercisable

24
Q

What does the buyer’s check on power of sale?

A

check that the power of sale exists + has arisen.

25
Q

What are the lender’s duties on power of sale?

A
  1. act in good faith and not cheat borrowers
  2. take reasonable care to obtain the true market value of the property at the date of sale (but no obligation to delay sale)
26
Q

What is the equity of redemption?

A

the equitable right for the borrower to recover the assets subject to the mortgage upon repayment of debt.

27
Q

What must a lender do if they fail to obtain the true value of a property in a power of sale?

A

Account the difference to the borrower.

28
Q

What is the effect of a lender exercising their power of sale?

A

The property buyer acquires the borrower’s entire estate:
* Free of any estates or interests, such as other mortgages, that the selling lender had priority over.
* Subject to any estates and interests that held higher priority over the selling lender’s claims.

29
Q

What are the steps for distributing proceeds of sale when a lender exercises its power of sale?

A

The selling lender, acting as a trustee, must distribute the proceeds of sale in the following order:
1. the costs of redeeming any prior mortgages (those with higher priority than the selling lender’s mortgage).
2. the lender’s expenses related to the sale.
3. the lender’s own mortgage.
4. any remaining balance is given to the person(s) entitled to the equity of redemption, which may include subsequent lenders and the borrower.

30
Q

What is the effect of a debt action?

A

Lender can recover debt by an action for repayment on the borrower’s covenant to pay, so long as the legal date for redemption has passed.

31
Q

What is the effect of The Limitation Act 1980 on the lender’s ability to recover debt?

A

Limits it to:
* 6 years for the recovery of interest; and
* 12 years for the recovery of capital.

32
Q

When can a lender use a debt action?

A

In cases of negative equity after a lender’s power of sale, if the proceeds are insufficient to cover the debt, the lender can legally chase the borrower for the remaining amount through a debt action.

33
Q

What are the requirements for appointment of a receiver?

A

Power to appoint a receiver must:
* exist;
* have arisen; and
* be exercisable.

Appointment must be in writing and at the lender’s discretion.

34
Q

When will a lender appoint a receiver?

A

If the property subject to the mortgage is producing income.

35
Q

What is the effect of appointing a receiver?

A

receiver has the power to demand and receive income from the property

36
Q

Does the LPA 1925 grant a receiver any power of sale?

A

No - this has to be included in the terms of the mortgage.

37
Q

In the context of a receiver appointed by a lender, who is considered the agent of the borrower?

A

The receiver is regarded as the agent of the borrower, and the borrower is solely responsible for the receiver’s actions.

38
Q

What is the practical effect of a receiver being the agent of the borrower, especially in terms of the borrower’s recourse to the lender for the receiver’s actions?

A

The borrower cannot hold the lender accountable for the receiver’s acts or omissions.

39
Q

Why is the appointment of a receiver more attractive than possession to a lender?

A

Because it shifts the duty to account and liability to the receiver.

40
Q

What are the duties of a receiver?

A

1. Duty to Avoid Conflicts:
A receiver must ensure that their personal interests do not conflict with their role as a receiver. This means they cannot purchase the mortgaged property in a personal capacity.

2. Duty to Act in Good Faith:
A receiver is obligated to act in good faith throughout their appointment.

3. Duty of Competence:
A receiver must act with reasonable competence. The specific standards for competence depend on the nature of the property involved.

4. Duty to Determine True Market Value:
When the receiver has the power of sale, they are required to take reasonable care to obtain the true market value of the property at the date of sale.

5. Discretion to Increase Property Value:
The receiver may, but is not obligated to, take steps to increase the value of the property.

41
Q

Who do the receiver’s duties extend to?

A

Any person with an interest in the equity of redemption

42
Q

What takes precedence when the interests of the lender and the borrower conflict in a receiver’s role?

A

In cases of conflicting interests between the lender and the borrower, the receiver is allowed to prioritize the interests of the lender over those of the borrower.

43
Q

When can the lender apply for foreclosure?

A

available by an application to the High Court once the legal date for redemption has passed.

44
Q

What is the two stage process of foreclosure?

A
  1. Foreclosure Nisi
  2. Foreclosure Absolutw
45
Q

What is the process of the initial stage of foreclosure - Foreclosure Nisi?

A
  • involves the preparation of accounts to determine the amount owed.
  • followed by a six-month period during which the borrower can make the necessary payments.
46
Q

What is the process of the second stage of foreclosure - Foreclosure Absolute?

A
  • title to the property is transferred to the lender; and
  • extinguishing the borrower’s equity of redemption, effectively giving ownership to the lender.
47
Q

What happens when a property is worth more than the debt owed in a foreclosure situation?

A

The lender is entitled to keep the surplus.

48
Q

What is the outcome when the property’s value is less than the debt in a foreclosure situation?

A

The borrower is released from liability.

Hence, lender would not use this remedy is not used when there is negative equity.

49
Q

How is the borrower protected from the harsh effect of foreclosure?

A

The borrower has three key protections:
* The court may re-open foreclosure proceedings in exceptional circumstances, even after a foreclosure absolute order.
* In cases involving a dwelling house, the borrower can adjourn foreclosure proceedings through an application under the AJA 1970.
* A judicial sale application under s 91(2) LPA 1925 can be filed in court, preserving the borrower’s equity of redemption, and this can be initiated by any party with an interest in the equity of redemption.

FLK 2 - Land Law (8 decks)

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