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Vol 23 No 9 Sept/Oct 2018

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Blackstone 2019
Lexis taking security
Lexis insolvency legislation
Archbold 2019 out now

Mortgage Receivership: Law and Practice


ISBN13: 9780854902521
Published: October 2018
Publisher: Wildy, Simmonds and Hill Publishing
Country of Publication: UK
Format: Hardback
Price: £125.00



In stock.

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.

Subjects:
Insolvency Law, Property Law, Wildy, Simmonds and Hill
Contents:
Foreword
Preface
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of European Material
Table of Non-Statutory Material
List of Abbreviations

1. INTRODUCTION

2. 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

3. 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

4. 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

5. KEY THEMES;
The deemed agency
Powers in the mortgage deed
Additional powers conferred by the lender

6. 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

7. 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

8. 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

9. 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