Applying the proceeds of sale
Applying the proceeds of sale

The following Property practice note provides comprehensive and up to date legal information covering:

  • Applying the proceeds of sale
  • Order of application
  • Subsequent incumbrancers
  • Persons entitled to the equity of redemption

Sale by a mortgagee destroys the equity of redemption in the mortgaged property. The sale defeats the rights of all subsequent incumbrancers, whose remedy then is only against the proceeds of sale. The mortgagee exercising the power of sale becomes a trustee of the surplus proceeds of sale, if any, for the interested persons according to their priorities.

A statutory trust arises as soon as the proceeds of sale are received, unless:

  1. the sale is under an express power, and

  2. the mortgage deed merely declares that the mortgagee must apply the purchase money in a manner stated, or

  3. the sale is under another statute which contains no special provision for the application of the purchase money

In those cases the mortgagee becomes a constructive trustee of the surplus as soon as it is shown there is a surplus.

Whether the trust is statutory, express or constructive, time does not run against the person or persons entitled to the surplus, if the selling mortgagee retains the surplus or converts it to his own use.

Order of application

The order in which any surplus arising from a sale under an exercise of the statutory power must be applied is:

  1. in discharge of pri

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