Enforcement

Legal Mortgage and Registered Charge A mortgagee of unregistered title property is entitled to possession of the mortgaged property subject to whatever is stated in the mortgage deed. This is because the mortgagee has legal title to the land.… Read the rest

Demanding the Loan The loan agreement will determine how and when the lender can demand repayment. A traditional term loan provides for an advance of monies and repayment over time in accordance with an agreed schedule of repayments. … Read the rest

Overview The method of enforcement of security will depend on the type of asset and on whether there is a written document setting out the terms of the security and dealing with enforcement. A court order may be required to sell and realise certain types of asset and in certain circumstances where the security has not been completed.… Read the rest

General A court-appointed receiver is a flexible means of enforcing security. Court receivers perform a wide range of functions. A court receiver will only generally be necessary where the mortgagee does not have the power to appoint a receiver under its mortgage or by statute or where the nature of the security requires it.… Read the rest

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

Overview I The appointment of a receiver is a mechanism for enforcement of security granted by a company under a floating charge or debenture. The receiver’s powers are determined by the debenture deed. A company receiver is similar to a fixed charge receiver.… Read the rest