Unregistered land—equitable mortgages
Unregistered land—equitable mortgages

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

  • Unregistered land—equitable mortgages
  • The creation by legal owners of equitable rights by way of mortgage security
  • Specific performance
  • Formalities
  • Protection
  • Mortgages by owners of equitable interests of their equitable rights
  • Formalities
  • Enforceability
  • Protection
  • Failed legal mortgage treated as equitable mortgage

The creation by legal owners of equitable rights by way of mortgage security

This is a specifically enforceable contract to create a legal mortgage. The agreement must:

  1. be for valuable consideration, and

  2. evidence an intention to create a present security

The contract operates to transfer an equitable proprietary interest by way of security.

Unlike a legal mortgage, an equitable mortgage may be created:

  1. by general words (eg the ordinary debenture of a limited company), and

  2. with regard to future acquired property

Specific performance

Specific performance will not be ordered so long as the contract remains executory. The parties will be left to their remedies in damages. It will only generally be ordered where the loan has actually been made as equity does not specifically enforce an unperformed agreement to lend money.

The interest is capable of being perfected by the c

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