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Mortgages (Remedies of the Mortgage (Power of Sale- given to the mortgagee…
Mortgages
Remedies of the Mortgage
Action in Debt- the mortgage is a security for the loan and the mortgagee can sue the mortgagor for the debt or shortfall of monies outstanding where the mortgage property has been sold
Receiver- in business premises it is common for the mortgagee as an alternative to selling the property to appoint a receiver who deals with he property an pays off the amount owed by the mortgagor plus any costs of receivership.
Foreclosure- a court order for foreclosure has the effect of transferring the whole property from the mortgagor to the mortgagee. The mortgagor will be usually be able to insist on sale as an alternative: in this way he will retain any money remaining after payment of the amount due and any costs.
Power of Sale- given to the mortgagee when the mortgagor defaults. Either given to the mortgagee under the mortgage deed or under ss101 and ss103 LPA 1925.
Prior to sale the mortgagee has to obtain possession of the property. The mortgagee may contain possession at any time (they have been given the equivalent of a lease) possession of the land is only lawful if there is a court order
Before the mortgagee can sell the property under it's statutory powers it must satisfy itself that the power of sale has arisen in accordance with S101 LPA 1925 and that the power of sale is exercisable
Guarantor Mortgage- a guarantor may be subject to an action in debt where the mortgagor has defaulted
Equity of Redemption
By giving this right to redeem the mortgage, equity protects the mortgagor
Any agreement to defeat this right is void at law because it will be regarded as a 'clog on the equity of redemption'
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Introduction
An owner of land has the right to finance by way of a mortgage on the land . This requires knowledge of the following:
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