How do you enforce an unregistered mortgage?
How do you enforce an unregistered mortgage?
Unregistered NSW mortgages are enforced by seeking orders in the NSW Supreme Court Equity division for:
- Judicial sale and possession of the property (the latter being by way of seeking specific performance of an express contractual right, which hopefully is set out in the mortgage); or,
- The appointment of a receiver.
Is an unregistered mortgage valid?
The Apex Court held that the though an unregistered mortgage deed is not admissible as a document of title however, the same could be relied on for collateral purposes such as a proof of possession where the case set up is of adverse possession.
What does unregistered mortgage mean?
A lender enters into a loan agreement which confers the right to register a mortgage, but only upon default. The borrower defaults but the mortgage is not registered. It is an unregistered mortgage enforced through the principles of equity. Equity means ‘fairness’ or ‘justice’.
What happens if you don’t register a mortgage?
It is becoming more common for mezzanine lenders to accept an unregistered mortgage as security for a loan. While an unregistered mortgage gives the lender priority over any of the borrower’s unsecured creditors, an unregistered mortgage does not give a lender the same entitlements or benefits as a registered mortgage.
How do you enforce a mortgage?
The suggested amendment to Section 69 of the Transfer of Property Act, 1882 will result in enforcement of mortgage security by the mortgagee without resort to court proceedings and will, to some extent, disburden the courts from the current scenario of docket explosion so that the other cases can be adjudicated as …
Can you register an equitable mortgage?
However, an equitable mortgage over land is not a registrable disposition and cannot be registered in its own right. A mortgage of an equitable interest in land cannot be registered in its own right or protected by notice; for example a mortgage of a beneficial interest under a trust.
What is Pactum Commissorium?
Arrangements in violation of these are called “pactum commissorium,” which exists when there is a pledge or mortgage wherein property is encumbered by way of security for the payment of the principal obligation; and there is a stipulation for an automatic appropriation by the creditor of the thing in the event of …
Is a discharge of mortgage the same as a deed?
A formal deed of release follows the mortgage discharge letter, although sometimes it takes several weeks for this document to come through. The release is similar to a quitclaim deed. By signing it, the lender transfer all its rights and interest in the property back to the borrower.
How is my mother’s house protected from probate CRE?
Answer: Constitutional homestead protection is granted to the decedent’s estate and accordingly the heirs of the estate. If your mother was on the title to the house and it was her principal residence at death, it (the house) enjoys that protection and can be passed on to you and the other heirs free and clear of debt other than debt secured by…
Can a caveator apply to the Supreme Court?
A caveator who is served with a notice under s138B may apply to the Supreme Court for an order extending the operation of the caveat. Justice Pritchard summarised the Court’s power to extend a caveat in the following terms:
Is the homestead protection granted to the decedent?
Constitutional homestead protection is granted to the decedent’s estate and accordingly the heirs of the estate.