Mortgages

• What is a mortgage?

  A mortgage is a loan that is secured by real property.
• Who is the mortgagor?

  The mortgagor is the borrower of the money.
• What is a legal mortgage?

  A legal mortgage must be executed by deed.
• What is an equitable mortgage?

  An equitable mortgage takes effect in equity only and does not require a mortgage deed.
• What is the requirement for an equitable mortgage to be valid?

  An equitable mortgage must be set out in a signed contract.
• What is the duty of a mortgage regarding third parties?

  A mortgage has a duty to advise any spouse or joint tenant to seek independent legal advice if anything seems suspicious.
• What must be done for a legal mortgage on registered land?

  A legal mortgage must be completed by registration.
• What is the priority of a legal mortgage over competing interests?

  A legal mortgage has priority over competing interests unless they are registered or are overriding interests.
• How is an equitable mortgage protected on registered land?

  An equitable mortgage is protected by placing a notice or restriction on the properties register of title.
• What is the first legal mortgage on unregistered land?

  The first legal mortgage requires the deposit of title deeds with the mortgagee.
• What is the second legal mortgage on unregistered land?

  The second legal mortgage requires the registration of a C(i) land charge against the mortgagor’s name.
• What is required for an equitable mortgage on unregistered land?

  An equitable mortgage requires the registration of a C(iii) land charge against the mortgagor's name.
• What are the methods to enforce a legal mortgage?

  Methods include suing for debt, taking possession, foreclosing, and exercising the power of sale.
• What is required to take possession of a property under a legal mortgage?

  A court order is required to take possession of the property.
• What does foreclosure involve in the context of a legal mortgage?

  Foreclosure involves applying to the court to transfer the property to the lender in satisfaction of the debt.
• When can a lender exercise the power of sale without court application?

  The lender can exercise the power of sale if the date of redemption has passed and certain conditions are met.
• What are the conditions under which a lender can exercise the power of sale?

  Conditions include interest payments being more than 2 months in arrears or a written request for repayment not being met.
• How is an equitable mortgage enforced?

  An equitable mortgage is enforced by applying to the court for sale and the right of foreclosure.
• What is the priority of the first legal mortgage in terms of property sale?

  The first legal mortgage takes priority, and the property is sold subject to any prior mortgages.
• What is the rule of priority for equitable mortgages?

  The rule of priority for equitable mortgages is that the first one takes priority.