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PROPERTY LAW – LECTURE 7 (“SEMINAR” 7.1) MORTGAGES Outline General law and equitable protections o General concepts o Redemption o Foreclosure Creating equitable mortgages o Agreements in writing to give legal mortgage o Deposit of title deeds Torrens System o Effect of registration o Rights of the mortgagee Right to sue on personal covenant Power to appoint a receiver Power of sale Foreclosure Remedies for the Equitable Mortgagee o Obligations of the Mortgagee Duty in relation to the mortgagor’s interest Protection of the Purchaser Consumer credit legislation General Law and equitable protections General concepts - Distinction between the general law is the body of principles to the law of property and the estates of property that has developed through English law. This rigid part of the common law has been modified as equity, which is what we refer to as the general law. o However, the Torrens system is a more legislative approach to property law. This system began in SA. It does away with the requirement of keeping physical
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documents that the general law requires, and beings up the concept of a registrar, where the details and transactions overtime of property is recorded, thus can be followed up. o In general law, it is also known as the old title. All the title of the old title is in the general law and is not implied in one registrar, unlike the Torrens system. However, it was simple to implement the registration approach in SA. The Torrens system modified the general law concept, especially in mortgage. Mortgage = A conveyance or transfer of property as security for the payment of a debt or the discharge of some other obligation. Thus involves a physical conveyance of title, such as a pile of documents (deeds). Mortgagee - The person who lends the money takes mortgage over land. Mortgagor –The person who borrows money and gives money and gives land to the mortgagee as security for that loan. The mortgagor only had what equity gave them, which was the right to reclaim the deeds at the end of the mortgage once the obligations of the mortgage had been repaid. Whatever rights the mortgagor had, they had an equity of redemption, which is the right to redeem the right of the mortgage at the end of the agreed term. When a mortgagor hands over title to a mortgagee, they are said to have lost title, to the land. o Land is good security – This is because it is identifiable and is permanent, holding its value for most of the time. It can also be sold on continuous debts. Mortgage is usually discharged and a new mortgage can exist from that period. o History and origins of mortgages go back to Norman Conquest. o Intervention of Courts of equity.
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