Q&As

A council lent money secured by a mortgage to a borrower in 1992. The borrower died in 1995 and the borrower’s wife died in 2019. The borrower’s daughter remains in possession. How can the council recover the debt—by selling the property or by proceedings for possession?

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Produced in partnership with Katherine Illsley of 4 King’s Bench Walk
Published on LexisPSL on 24/04/2020

The following Property Disputes Q&A Produced in partnership with Katherine Illsley of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • A council lent money secured by a mortgage to a borrower in 1992. The borrower died in 1995 and the borrower’s wife died in 2019. The borrower’s daughter remains in possession. How can the council recover the debt—by selling the property or by proceedings for possession?

When a mortgagor dies, the mortgage is not extinguished. The monthly mortgage repayments are still due to the mortgagee, and the mortgagee is entitled to demand the repayment of the full sum outstanding on the mortgage.

It is unclear from the scenario of this Q&A whether ‘the borrower’ and his wife were co-mortgagors, or whether it was in the sole name of ‘the borrower’. If the mortgage was in joint names, the mortgage would not automatically have passed to the wife’s sole name. She would have needed to apply for the mortgage to be transferred into her sole name and to have met the affordability criteria for such a transfer. The mortgagee should therefore be aware whether the last mortgagor was ‘the borrower’, the borrower and his wife as joint-mortgagors, or the wife with a mortgage in her sole name. They should also be aware from the tracking of the history of the mortgage whether the wife inherited the property or not upon the death of the borrower.

If the wife did inherit the borrower’s share in the

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