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Chapter

Cover Land Law

27. Protection of the Borrower  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter reviews the loan contract and the controls that the law has imposed to protect the borrower. The level of protection differs according to the nature of the borrower and the type of security transaction. Market regulation of the residential mortgage market has increased protection for domestic borrowers. Vitiating factors, particularly undue influence, have impacted upon the creation of collateral mortgages of the family home to secure commercial borrowing. Equitable protection has been provided by controls against penalties and oppressive and unconscionable terms, as well as by protection of the borrower’s equity of redemption. Statutory consumer protection now offers more effective protection to domestic borrowers. The common law, equitable, and statutory control mechanisms are then described and applied to demonstrate the protection they afford against particular mortgage terms, for instance to control rates of interest and other costs associated with borrowing.

Chapter

Cover Land Law

8. Mortgages and Security Interests in Land  

This chapter examines the law governing security interests that can exist in land, with particular emphasis on the legal charge by way of mortgage in the social setting of home ownership. It first considers the four different types of security interest that can exist in land — the pledge, the lien, the mortgage, and the equitable charge — before discussing the equity of redemption and its significance into the realm of the legal charge by way of mortgage. It then explains the rights and powers of the lender on the enforcement of the security and the ways in which the law seeks to protect the borrower as the more vulnerable party during the course of the mortgage transaction. It also explores the principle of procedural fairness in transactions involving surety mortgages, focusing on the concept of undue influence, and concludes with an analysis of regulatory control of mortgage terms.