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Mortgage Receivership: Law and Practice

Stephanie Tozer, Cecily Crampin

ISBN13: 9780854902521

New Edition ISBN: 9780854902996

Published: October 2018

Publisher: Wildy, Simmonds and Hill Publishing

Country of Publication: UK

Format: Hardback

Price: Out of print

"...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.

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