Mortgage Receivership: Law and Practice

Foreword
Preface
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of European Material
Table of Non-Statutory Material
List of Abbreviations
1INTRODUCTION
2MORTGAGE 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
3CONSUMER 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
4APPOINTMENT
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
5KEY THEMES
The deemed agency
Powers in the mortgage deed
Additional powers conferred by the lender
6THE 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
7THE 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
8THE RECEIVER AND THIRD PARTIES
Introduction
The borrower’s pre-existing contracts
Occupiers
Landlords
Neighbours
New relationships
The receiver’s liability in tort
Statutory liabilities
9THE 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
10POSSESSION
Introduction
The receiver’s power to take possession
Particular classes of occupier
Possession procedure
Duties
The receiver in possession
11SALE 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
12USE AND DISTRIBUTION OF FUNDS COLLECTED
Income
The borrower’s power of sale
The lender’s power of sale
13TERMINATION
Modes of termination
After termination
14LITIGATION
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