Enforcement

Sale

The Power of Sale The Conveyancing Act provides a statutory power of sale for the mortgagee under a mortgage by deed. This power applies unless the contrary is stated or implied. This would be most unlikely in the case of a bank mortgage.… Read the rest

Receivership Process

All Assets Charges A fixed and floating charge over all of the present and future assets of the company allows for the creation of a security over (and the appointment of a receiver) over most and in some cases, all of the company’s assets, business, and undertaking. … Read the rest

Receiver’s Powers

General I The receiver is bound and empowered primarily by the terms of his appointment and the debenture/ mortgage under which he is appointed. He is entitled to act in the interests of the charge holder/ mortgagee. … Read the rest

Receiver’s Duties

Personal Liability I A receiver of the assets of a company is personally liable on any contract entered in the performance of his functions. This is the default position, whether the contract is entered in the name of the company or on his own behalf.… Read the rest

Receiver’s Duties

Receiver Appointment

Overview I The appointment of a receiver is a mechanism for the enforcement of security granted by a company by way of a fixed and/ or floating charge over its assets. The receiver’s powers are set out in the debenture deed.… Read the rest

Receiver Appointment

Property Receivers

Overview The appointment of a receiver is one of a number of means by which a mortgagee can enforce a mortgage. A receiver under a mortgage granted by an individual is often referred to as a “fixed charge” receiver.… Read the rest

Possession Proceedings

Overview If vacant possession is required for the purpose of a sale and the property is not surrendered or possession cannot be obtained peaceably, then a court order for possession will be required. The mortgagee will invariably have a right to possession of the secured property under the mortgage deed where there has been a default. … Read the rest

Mortgagee Powers

Enforcement Options for Mortgagee A mortgagee is entitled to exercise all rights at the same time. It can, for example, take court action for a judgment for payment of monies due and also take the action for possession of the secured property.… Read the rest