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Mortgage Receivership: Law and Practice

Mortgage Receivership: Law and Practice

Author: Stephanie Tozer; Cecily Crampin
Publisher: Wildy, Simmonds and Hill Publishing
ISBN: 9780854902521
Published In: October 2018
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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"...reassuring to know it has been written by hands-on professionals... which makes it particularly useful... provides topical, practical advice...clearly written. This book will be a key text in every law office as a quick point of reference for the very busy practitioner" New Law Journal

Mortgagees often appoint receivers, if the borrower falls into arrears. Perhaps because of the prevalence of buy-to-let mortgages, receivership appears to be used more often in the residential context than formerly, which has led to some recent case law, testing the effect of the receivers’ agency in residential landlord and tenant law, such as:-

Helman v John Lyon Free Grammar School Keepers and Governors [2014] EWCA Civ 17 in the context of a claim to acquire a freehold of a house in an enfranchisement under the Leasehold Reform Act 1967, and
McDonald v McDonald [2014] EWCA Civ 1049 (appealed on other issues) which decided that receivers could serve a Housing Act 1988 s21 notice on a tenant of the mortgagor.

This book seeks to answer crucial questions unanswered by the recent cases: what is the source and extent of the receivers’ agency? Can receivers, for example, take possession against the mortgagor? When can the receiver be in a better position, as regards third parties, than the borrower is?

This new book is a detailed and authoritative text on all aspects of mortgage receivership, surveying current case law and proposing analyses of the nature of receivership to answer some of the questions on which there is no direct authority.

Mortgage Receivership: Law and Practice also provides practical advice about what receivers should do in particular situations and how litigation involving receivers should be conducted. It is essential reading for lawyers advising receivers, or who are involved in litigation for or against receivers, and for receivers themselves.

Foreword

Preface

Table of Cases

Table of Statutes

Table of Statutory Instruments

Table of European Material

Table of Non-Statutory Material

List of Abbreviations

INTRODUCTION

MORTGAGE LAW;

Introduction

What is a mortgage?

The history of mortgages

The Law of Property Act 1925

The Land Registration Act 2002

Legal and equitable mortgages

Redemption

Statutory powers of leasing and surrender

Transfer by the borrower

Transfer by the lender

The lender’s remedies

A money claim

The right to preserve the security

Possession

Sale;

Power of attorney

Appointment of a receiver

CONSUMER PROTECTION LEGISLATION

Overview of regulatory framework

The CCA 1974

The effect of the CCA 1974 on the steps required to enforce a mortgage

Unfair credit relationships

Consumer buy-to-let mortgage regime under the MCD Order 2015

FCA regulation

Enforcement of CONC provisions

APPOINTMENT;

Preconditions to appointment

The second statutory condition: ‘entitled to exercise the power of sale’

The identity of the receiver

Formalities for appointment of a receiver

Formalities immediately following the appointment

Consequences of acting under an invalid or defective appointment

The lender’s perspective

Third parties

KEY THEMES;

The deemed agency

Powers in the mortgage deed

Additional powers conferred by the lender

THE RECEIVER’S RELATIONSHIP WITH THE BORROWER

Introduction

Historical origins of the agency

When the deemed agency arises

The nature of the deemed agency

Loss of deemed agency

Individual insolvency and death

Summary of the deemed agency

Power of attorney

THE RECEIVER AND THE LENDER;

Before the appointment

After the appointment

Impact of invalid or defective appointment

The lender’s liability for the receiver’s acts and defaults

The receiver acting on his own account

THE RECEIVER AND THIRD PARTIES;

Introduction

The borrower’;s pre-existing contracts

Occupiers

Landlords

Neighbours

New relationships

The receiver’s liability in tort

Statutory liabilities

THE RECEIVER’S POWERS;

Introduction

LPA and fixed charge receivers

The statutory regime

Collection of income

Delegated powers

Power to insure

Common powers of a fixed charge receiver

The receiver acting beyond his powers

10.

POSSESSION;

Introduction

The receiver’s power to take possession

Particular classes of occupier

Possession procedure

Duties

The receiver in possession

11.

SALE AND THE RECEIVER;

Introduction

The receiver’s power of sale in the mortgage conditions

The receiver with the borrower’s power of sale

Sale under a power of attorney

The receiver exercising the lender’s power of sale

A hybrid: contract under borrower’s power with conveyance by lender

The borrower’s death or insolvency and sale

Restrictions on sale

The receiver’s duties on sale

12.

USE AND DISTRIBUTION OF FUNDS COLLECTED

Income

The borrower’s power of sale

The lender’s power of sale

13.

TERMINATION

Modes of termination

After termination

14.

LITIGATION;

General preliminaries

Receiver’s application for directions

The receiver as claimant in his own right

Claims where the receiver relies on receivership powers

Adverse claims made by third parties

Adverse claims brought by the borrower or the lender

APPENDIX- TERMINATION OF LEASES;

Types of tenancies

Types of termination

Statutory continuation of tenancies

INDEX

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