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Chapter

Cover The Principles of Land Law

11. Mortgages  

This chapter examines mortgages, which are fundamental to the functioning of modern land law. They are the means by which most people finance the acquisition of their property. However, mortgages are more than simply a commercial transaction between a lender and a homeowner. They are also a property right in themselves and this brings with it a wide variety of options for the lender in terms of recovering their security. They also pose huge risks for the borrower. The chapter then explains the nature of the mortgage right and considers what terms can and cannot form part of a mortgage agreement. It also details the formal requirements of mortgages in terms of their creation, and identifies problems in the creation of a mortgage and the effects of these, looking in particular at the issues caused by undue influence. Moreover, the chapter describes the rights and obligations of the borrower in a mortgage (mortgagor), as well as that of the lender (mortgagee). Finally, it reflects on the third party effects of a mortgage, priorities, and land registration.

Chapter

Cover The Principles of Land Law

12. Easements and Profits  

This chapter examines mortgages, which are fundamental to the functioning of modern land law. They are the means by which most people finance the acquisition of their property. However, mortgages are more than simply a commercial transaction between a lender and a homeowner. They are also a property right in themselves and this brings with it a wide variety of options for the lender in terms of recovering their security. They also pose huge risks for the borrower. The chapter then explains the nature of the mortgage right and considers what terms can and cannot form part of a mortgage agreement. It also details the formal requirements of mortgages in terms of their creation, and identifies problems in the creation of a mortgage and the effects of these, looking in particular at the issues caused by undue influence. Moreover, the chapter describes the rights and obligations of the borrower in a mortgage (mortgagor), as well as that of the lender (mortgagee). Finally, it reflects on the third party effects of a mortgage, priorities, and land registration.

Chapter

Cover Concentrate Questions and Answers Land Law

12. Mortgages  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary, and illustrative diagrams and flowcharts. This chapter presents sample exam questions about the law of mortgages. The questions deal with issues such as their creation; clogs on the equity of redemption; the remedies of a mortgagee and protection of the mortgagor; and undue influence. Remedies of a mortgagee where the mortgagor defaults is an area of the law where, over recent years, the courts have had to consider entirely new social circumstances in relation to ‘negative equity’ and mortgage debt.

Chapter

Cover Land Law

13. Mortgages  

This chapter examines mortgages—a form of proprietary security for the advancement of a loan. A bank or lender advances a loan and in return they are granted a mortgage: an interest in the borrower’s land. Mortgages are distinct from other loans because they are ‘secured’ on the property itself meaning that if the borrower fails to make repayments, the bank can take steps to recover its money including seeking possession of the property and selling it. This chapter explores the nature and creation of mortgages, the rights and powers enjoyed by mortgagors, the rights of mortgagees, the effect of undue influence on mortgages, and the priority of mortgages.

Chapter

Cover Thompson's Modern Land Law

10. Mortgages  

A mortgage is a form of security for a loan, the purpose of which is often to finance the purchase of a house. This type of mortgage is known as acquisition mortgage. The house can also be used as security for other borrowing (for example, to pay for an extension to a house) or to finance a small business. Such mortgages are generally termed second, or even third, mortgages. The person who creates the mortgage is called the mortgagor and the person in whose favour it is created is called the mortgagee. The mortgagee is a secured creditor and can transfer the mortgage to another person. This chapter, which focuses on the nature of mortgages and how they are created, also discusses the role of mortgages, types of mortgage, rights of the mortgagor, rights and remedies of the mortgagee, the question of undue influence, and priority of mortgages.

Chapter

Cover Land Law Concentrate

14. Mortgages  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses mortgages. A mortgage is a proprietary interest that can be legal or equitable in status. The equity of redemption encapsulates the rights of a mortgagor and includes the equitable right to redeem and the ability to have certain clauses struck out from a mortgage agreement. The mortgagor of a dwelling house has special legislative protection. Where a mortgage is obtained under undue influence, be it actual or presumed, it may be set aside. The mortgagee has various remedies available to it should the mortgagor fail to meet the mortgage payments, dependent upon the status of the mortgage. A property may be subject to more than one mortgage and where this is the case and the property is sold, proceeds from the sale will be applied in order of priority.

Chapter

Cover Complete Land Law

24. The Operation of Mortgages  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the rights of the mortgagor (rules protecting the equitable right to redeem, ‘clogs’ and ‘fetters’, postponement of redemption, collateral advantages, restraint on trade); statutory regulation of mortgages; leasing of the mortgaged property; undue influence, where a third party pressurizes the mortgagor into cooperating in the granting of a mortgage so that the third party can get a loan from a lending organization; redemption of mortgages; and fire insurance of the mortgaged property.

Chapter

Cover Land Law Directions

14. Mortgages  

This chapter discusses mortgages, specifically mortgage creation, legal mortgages, equitable mortgages, and priority of mortgages. A mortgage is a debt secured on land. A legal mortgage in registered land can now be created only by means of a legal charge under the Land Registration Act 2002, s. 23(1)(a). The mortgagor has a bundle of rights known as the ‘equity of redemption’. If the mortgagee attempts to gain any unconscionable advantage by means of the mortgage, the courts will strike it down. The mortgagee has five potential remedies to recover the debt: an action on the mortgagor’s personal covenant; repossession; sale; appointment of a receiver; and foreclosure. The doctrine of undue influence is important in the law of mortgages. Provided the mortgagee bank follows the steps outlined by the House of Lords in Royal Bank of Scotland v. Etridge (No. 2), it will be protected against a claim for undue influence.

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.