Publication Type

Journal Article

Version

acceptedVersion

Publication Date

9-2023

Abstract

Regardless which way market forces push property prices, the principal sum owed to a mortgagee is unaffected while interest is payable by the mortgagor to account for the mortgagee’s cost of capital and underwriting risks. If a mortgagor is unable to service its mortgage, then as protection and enforcement of the secured land, the remedies available to a mortgagee include sale, foreclosure, possession and appointment of a receiver. Because foreclosure exchanges debt for title, the remedy is at odds with the idea that a lender does not set out to take investment risk. Unsurprisingly, foreclosure as a remedy is hardly ever used in England and Wales. Bamforth writes that the English mortgage seems beset with unsatisfactory technical features and is far removed from the day-to-day world of borrowing and lending. To some extent, this critique fairly applies in the context of foreclosure, which is the principal concern of this paper. While recognising its potential shortcomings, I argue that foreclosure remains of practical relevance to the law of mortgage, despite the remedy’s apparent unpopularity and should not be forsaken altogether.

Keywords

Foreclosure, Law Commission, Mortgages, Power of sale

Discipline

Property Law and Real Estate

Research Areas

Private Law

Publication

Conveyancer and Property Lawyer

Volume

[2023]

First Page

288

Last Page

296

ISSN

0010-8200

Publisher

Sweet and Maxwell

Copyright Owner and License

Authors

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