Mortgages in English law

Mortgages in English law are a method of raising capital through a loan contract, typically with a bank, where if the borrower does not repay, the bank may take a mortgaged asset, typically a home or building. Mortgages are an important part of English land law and property law. These concern, first, the common law, statutory and regulatory rules to protect the mortgagor (i.e. the borrower) at the time of concluding the mortgage agreement. Second, English law defines and restricts the process for taking possession of property in the event of default. Third, it places duties on mortgagees (i.e. lenders, like banks) on the price it achieves when selling property.

Creation of a mortgage

While real property may be divided among co-owners and tenants for the purpose of the land's use and enjoyment, taking a mortgage of property primarily serves the purpose of ensuring loans are repaid. Because of the nature of money lending, and frequently unequal bargaining power between banks and borrowers, the law gives significant legal protection to borrowers against the enforcement of unfair bargains. Along with pledges, liens and equitable charges, English law counts a mortgage as one of four main kinds of security interest, whereby a proprietary right that binds third parties is said to arise on conclusion of a contract. It must simply be the contract's intention to make property available to secure repayment. The Law of Property Act 1925 section 85 say that a mortgage requires a deed (under LPMPA 1989 section 1, a document that is signed, witnessed and states it is a deed). Under the Land Registration Act 2002 sections 23 and 27, a notice of a mortgage must be filed with HM Land Registry for the mortgage to be effective. Then, LPA 1925 section 87 says mortgages confer upon the mortgagee (i.e. the secured lender) the same rights as a 3000-year lease holder.

Protection of borrowers

Equity of redemption

The reason for this reference to "3000 years" is that in a primitive protective measure, the common law said mortgage terms must always allow for the property to be redeemed in the end, when the debt is repaid. In the 18th century decision of Vernon v Bethell[1] Lord Henley LC refused to enforce the conveyance of Vernon's sugar plantation in Antigua to a deceased London lender, Bethell, when Vernon had trouble repaying, even though some exchanges between the two had raised the possibility of giving up the land to satisfy the debt. Given the considerable interest paid already, Lord Henley LC held it would frustrate (or "clog") Vernon's right to redeem property. As he put it protection for the borrower was warranted because "necessitous men are not, truly speaking, free men, but, to answer a present exigency, will submit to any terms that the crafty may impose upon them". Accordingly, the rule developed that "once a mortgage, always a mortgage",[2] meaning a mortgage cannot be turned into a conveyance of the property by the operation of terms in an agreement. It means that a lender may at most sell a property to realise its value, but may not take ownership, and the borrower must always practically be able to get back the property. The rule was suspended for companies by the Companies Act 2006 section 739, and was criticised in Jones v Morgan for being inappropriate in commerce,[3] but it still survives as a rudimentary common law method to protecting vulnerable borrowers.

Defective consent

The most relevant protective measure at common law today is the right of borrowers to cancel mortgages if they were misrepresented about the mortgage's terms, or if they entered agreements because of undue influence. In the leading case, Royal Bank of Scotland v Etridge (No 2), a group of appeals all involved a husband allegedly pressuring his wife into signing a mortgage agreement with a bank, where security was over the family home.[4] The House of Lords agreed that undue influence would make a contract voidable, and if a bank should have realised this possibility, it could not enforce the mortgage agreement against the spouse's share of the home. Accordingly, if banks wished to ensure valid mortgages they would need to have confirmation from an independent solicitor that the spouse fully understood the transaction. This ruling was intended to eliminate cases where people do not understand the consequences of mortgages. Alternatively, if despite independent advice, a spouse is still unduly influenced or is misrepresented the facts, he or she will have no recourse against a bank selling the home, but may have a claim against the solicitor for negligence.

Statutory market regulation

Beyond common law, there are three main kinds of statutory protection. First, the Financial Services and Markets Act 2000 codified a system of licensing for mortgage lenders. The Financial Conduct Authority maintains a Code of Practice and enforces compliance with the threat of license withdrawal. Second, the Consumer Credit Act 1974 empowers the Office of Fair Trading to engage in similar regulation of the second mortgage market. Third, the content of mortgage is regulated by ordinary consumer contract protection in the Unfair Terms in Consumer Contracts Regulations 1999. The general thrust of the law is to ensure complete transparency, and to cancel extortionate credit agreements, so that consumers know what they are getting, and do not get an unfair bargain.

Lenders' rights

Money lenders have extensive rights from common law and statute. A mortgagee's first right is to repayment of the debt, but if the borrower's circumstances mean this is impossible, a process of taking possession of the mortgaged property and selling it usually begins. Almost every step, however, is mediated through court.

Defaults on repayment

The Administration of Justice Act 1970 section 36 says that the court may adjourn proceedings if the "mortgagor is likely to be able within a reasonable period to pay any sums due[5] under the mortgage", and the Consumer Credit Act 1974 sections 129-130 does the same for second mortgages. In an anomalous case, Ropaigealach v Barclays Bank plc[6] a bank had auctioned off a (second) house the owning a family was away. Clarke LJ felt unable to apply the AJA 1970, because properly construed, it was only able to halt proceedings when legal proceedings had in fact been launched, and here there were none. In a more borrower-friendly decision, Cheltenham & Gloucester Building Society v Norgan[7] Waite LJ gave guidance that in ordering a plan for repayment, a judge should give "the period most favourable to the mortgagor at the outset", so that repeated applications to court on continuing defaults could be avoided, and so that "the mortgagee can be heard with justice to say that the mortgagor has had his chance".

Duties during sale

When it comes to a sale, LPA 1925 sections 101 and 103 require that the provision for sale must have been in the mortgage deed, that three months notice and space must be given. Section 88 confirms that a buyer after a sale receives an unencumbered title. In the sale process itself, there is a duty of care. In Cuckmere Brick Co v Mutual Finance[8] Mutual Finance auctioned Cuckmere Brick Co's property after it had defaulted on a loan, but failed to advertise that the property had secured planning permission for building more flats. Salmon LJ emphasised that because the borrower will still be liable for sums on a loan if a house is undersold, because the "mortgagor is vitally affected by the result of the sale", an obligation is owed to get "the true market value." Moreover, a higher duty of scrutiny will be imposed if a mortgagee sells to a related party. In Tse Kwong Lam v Wong Chit Sen[9] Mr Wong sold property taken from Mr Tse to his wife, after not advertising the auction. The Privy Council advised that while delay in the claim meant the sale should not be set aside, damages could be awarded because of the significant conflict of interest. Lord Templeman emphasised that "a heavy onus lies on the mortgagee to show that in all respects he acted fairly" so the transaction is perfectly fair and equal.[10]

Further sources

See also

Notes

  1. ↑ (1762) 28 ER 838
  2. ↑ Seton v Slade (1802) 7 Ves 265, 273
  3. ↑ [2001] EWCA Civ 995
  4. ↑ [2002] 2 AC 773
  5. ↑ Administration of Justice Act 1973 s 8 was enacted to prevent banks using "acceleration" provisions, saying all sums would be due at the date of default.
  6. ↑ [2000] QB 263
  7. ↑ [1996] 1 WLR 343
  8. ↑ [1971] Ch 949
  9. ↑ [1983] 3 All ER 54
  10. ↑ See also York Buildings Co v MacKenzie (1795) 3 Paton 378

References

This article is issued from Wikipedia - version of the 5/17/2016. The text is available under the Creative Commons Attribution/Share Alike but additional terms may apply for the media files.