THE RIGHTS OF THE MORTGAGEE
• Possession
- Physical control of land
- Most complicated
- What does it mean? We will remove the mortgagor from physical possession, and it will be
grated to the mortgagee.
- This is the process of say taking someone’s house off them.
- Usually preliminary to the process of selling the land
- Bank usually wants the mortgagor to leave, so it can then sell the land.
- But not the only option, perfectly possible to exercise the power of sell WITHOUT having
first taken possession
- Commercial decision depending on facts of situation.
- No one wants to move into a house possessed by another person. – you get a better price if
you have possession
- It varies depending on the kind of land – registered or unregisterd
- Depends on date of creation of the mortgage.
- If it is pre December 09, it depends on the type of mortgage (cause the others are all the
same as they are made by charge via the 2009 act)
- There’s also been statutory interference n some contexts, with right to possession
- Some of this has been very badly drafted
- There has had to be some amendments to clean it up.
UNREGISTERED LAND PRE-LCLRA.
• By conveyance of the legal fee simple.
- The mortgagee had right to possession from the moment the ink was dry.
- Regardless of whether or not the mortgagor is paying
- So, strictly the mortgagee can come and kick me out even though that’s not what was
agreed or intended
- In practice, didn’t really happen
- Default position – the legal mortgagee was the owner of the fee simple in the land
- Follows from the nature of a legal fee simple – who is the person with the best right of
possession? the conveyance gave the mortgagee fee simple ownership, and along with it,
fee simple in possession.
- In practice, it amounted to a self-help remedy for mortgagees of this kind.
- If the mortgagee can peaceably secure possession, there is no need for them to go to court.
- This doesn’t mean the bank can come in and throw me out – must be peaceable
- Peaceably unlikely though – obviously likely to refuse or resist
- If you want to forcibly get them to leave, you have to get permission from the authorities
- Must be without any prospect of using force.
- There were reports of people during the crash sending keys in envelopes to the bank –
example of peaceable gaining of possession
- The old law said you did not need a court order – inherent right to take possession of your
legal fee simple by peaceable means.
- Where the premises is commercial/ anything other than a house – the right to possession
works precisely the same way.
Dimanchi
, Concerned execution of search warrants. There was legislation that said a Gardai cannot sign a
search warrant himself. It has to be an independent judge. Not infront of your pet peace
commissioner.
- Not only is it illegal to break in and enter the dwelling house
- The state needs special reasons
- And there need be due process
Irish life v Duff
Hogan J
- Suggested that this is NOT the case where the property concerned is a dwelling house.
- The constitution commits the state to ensure that a dwelling is inviolable, and this is no
exception.
Makes a suggestion similar to Dimanche with regards to due process: -
- For a dwelling house, even though the bank will be the owner of a fee simple, they still
require a court order to enter a dwelling house
EQUITABLE MORTGAGES.
- The mortgagee does not hold the fee simple in the land
- They hold some other equitable interest
- Exact details of what are immaterial to us
- If I create one by deposit, all that happens is the borrow takes them and hands them to the
lender. You cannot convey a legal fee simple to do this – you need a deed under seal, so this
amounts to them having only an equitbael fee simple
- This means they have no automatic right of possession
- Requires a court of equity to recognise their right, and enforce it by court order.
- Equitable remedies however, are discretionary in nature – it depends on how the courts
view the situation in terms of unconciosnability
- Therefore, equitable mortgage carries a REMEDY of possession rather than a right to
possession.
Irish permanent v Ryan
Ordinarily, without exceptional circumstances,
- Equity will be granted where possession is being sought as a preliminary to sale of land.
REGISETERED LAND PRE 2009
• Local..act
- Regulation for statutory charges on registered land
- The holder of a statutory charge – a mortgagee for this purpose, is NOT registered as an
owner of absolute title concerned.
- Mortgagor’s name remain as owner in the registry
- Mortgagee inserted – so there will be two names
• Possession
- Physical control of land
- Most complicated
- What does it mean? We will remove the mortgagor from physical possession, and it will be
grated to the mortgagee.
- This is the process of say taking someone’s house off them.
- Usually preliminary to the process of selling the land
- Bank usually wants the mortgagor to leave, so it can then sell the land.
- But not the only option, perfectly possible to exercise the power of sell WITHOUT having
first taken possession
- Commercial decision depending on facts of situation.
- No one wants to move into a house possessed by another person. – you get a better price if
you have possession
- It varies depending on the kind of land – registered or unregisterd
- Depends on date of creation of the mortgage.
- If it is pre December 09, it depends on the type of mortgage (cause the others are all the
same as they are made by charge via the 2009 act)
- There’s also been statutory interference n some contexts, with right to possession
- Some of this has been very badly drafted
- There has had to be some amendments to clean it up.
UNREGISTERED LAND PRE-LCLRA.
• By conveyance of the legal fee simple.
- The mortgagee had right to possession from the moment the ink was dry.
- Regardless of whether or not the mortgagor is paying
- So, strictly the mortgagee can come and kick me out even though that’s not what was
agreed or intended
- In practice, didn’t really happen
- Default position – the legal mortgagee was the owner of the fee simple in the land
- Follows from the nature of a legal fee simple – who is the person with the best right of
possession? the conveyance gave the mortgagee fee simple ownership, and along with it,
fee simple in possession.
- In practice, it amounted to a self-help remedy for mortgagees of this kind.
- If the mortgagee can peaceably secure possession, there is no need for them to go to court.
- This doesn’t mean the bank can come in and throw me out – must be peaceable
- Peaceably unlikely though – obviously likely to refuse or resist
- If you want to forcibly get them to leave, you have to get permission from the authorities
- Must be without any prospect of using force.
- There were reports of people during the crash sending keys in envelopes to the bank –
example of peaceable gaining of possession
- The old law said you did not need a court order – inherent right to take possession of your
legal fee simple by peaceable means.
- Where the premises is commercial/ anything other than a house – the right to possession
works precisely the same way.
Dimanchi
, Concerned execution of search warrants. There was legislation that said a Gardai cannot sign a
search warrant himself. It has to be an independent judge. Not infront of your pet peace
commissioner.
- Not only is it illegal to break in and enter the dwelling house
- The state needs special reasons
- And there need be due process
Irish life v Duff
Hogan J
- Suggested that this is NOT the case where the property concerned is a dwelling house.
- The constitution commits the state to ensure that a dwelling is inviolable, and this is no
exception.
Makes a suggestion similar to Dimanche with regards to due process: -
- For a dwelling house, even though the bank will be the owner of a fee simple, they still
require a court order to enter a dwelling house
EQUITABLE MORTGAGES.
- The mortgagee does not hold the fee simple in the land
- They hold some other equitable interest
- Exact details of what are immaterial to us
- If I create one by deposit, all that happens is the borrow takes them and hands them to the
lender. You cannot convey a legal fee simple to do this – you need a deed under seal, so this
amounts to them having only an equitbael fee simple
- This means they have no automatic right of possession
- Requires a court of equity to recognise their right, and enforce it by court order.
- Equitable remedies however, are discretionary in nature – it depends on how the courts
view the situation in terms of unconciosnability
- Therefore, equitable mortgage carries a REMEDY of possession rather than a right to
possession.
Irish permanent v Ryan
Ordinarily, without exceptional circumstances,
- Equity will be granted where possession is being sought as a preliminary to sale of land.
REGISETERED LAND PRE 2009
• Local..act
- Regulation for statutory charges on registered land
- The holder of a statutory charge – a mortgagee for this purpose, is NOT registered as an
owner of absolute title concerned.
- Mortgagor’s name remain as owner in the registry
- Mortgagee inserted – so there will be two names
