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C1Certain provisions of Part III applied by Agriculture (Miscellaneous Provisions) Act 1941 (c. 50), s. 8(4), Weeds Act 1959 (c. 54), s. 3(3) and Leasehold Reform Act 1967 (c. 88), s. 19(8)
(1)A mortgage of an estate in fee simple shall only be capable of being effected at law either by a demise for a term of years absolute, subject to a provision for cesser on redemption, or by a charge by deed expressed to be by way of legal mortgage:
Provided that a first mortgagee shall have the same right to the possession of documents as if his security included the fee simple.
(2)Any purported conveyance of an estate in fee simple by way of mortgage made after the commencement of this Act shall (to the extent of the estate of the mortgagor) operate as a demise of the land to the mortgagee for a term of years absolute, without impeachment for waste, but subject to cesser on redemption, in manner following, namely:—
(a)A first or only mortgagee shall take a term of three thousand years from the date of the mortgage:
(b)A second or subsequent mortgagee shall take a term (commencing from the date of the mortgage) one day longer than the term vested in the first or other mortgagee whose security ranks immediately before that of such second or subsequent mortgagee:
and, in this subsection, any such purported conveyance as aforesaid includes an absolute conveyance with a deed of defeasance and any other assurance which, but for this subsection, would operate in effect to vest the fee simple in a mortgagee subject to redemption.
(3)[F1Subsection (2) does not apply to registered land, but, subject to that, this section applies whether or not the land is registered land and whether or not] the mortgage is expressed to be made by way of trust for sale or otherwise.
(4)Without prejudice to the provisions of this Act respecting legal and equitable powers, every power to mortgage or to lend money on mortgage of an estate in fee simple shall be construed as a power to mortgage the estate for a term of years absolute, without impeachment for waste, or by a charge by way of legal mortgage or to lend on such security.
[F2(5)In its application to instruments made after the coming into force of section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 subsection (1) above shall have effect as if for the words “under seal, and a bond or obligation under seal,” there were substituted the words “bond or obligation executed as a deed in accordance with section 1 of the Law of Property (Miscellaneous Provisions) Act 1989”.]
F1Words in s. 85(3) substituted (13.10.2003) by Land Registration Act 2002 (c. 9), ss. 133, 136(2), Sch. 11 para. 2(6) (with s. 129); S.I. 2003/1725, art. 2
F2S. 85(5) added by Law of Property (Miscellaneous Provisions) Act 1989 (c. 34, SIF 98:1), s. 1(8), Sch. 1, para. 5
(1)A mortgage of a term of years absolute shall only be capable of being effected at law either by a subdemise for a term of years absolute, less by one day at least than the term vested in the mortgagor, and subject to a provision for cesser on redemption, or by a charge by deed expressed to be by way of legal mortgage; and where a licence to subdemise by way of mortgage is required, such licence shall not be unreasonably refused:
Provided that a first mortgagee shall have the same right to the possession of documents as if his security had been effected by assignment.
(2)Any purported assignment of a term of years absolute by way of mortgage made after the commencement of this Act shall (to the extent of the estate of the mortgagor) operate as a subdemise of the leasehold land to the mortgagee for a term of years absolute, but subject to cesser on redemption, in manner following, namely:—
(a)The term to be taken by a first or only mortgagee shall be ten days less than the term expressed to be assigned:
(b)The term to be taken by a second or subsequent mortgagee shall be one day longer than the term vested in the first or other mortgagee whose security ranks immediately before that of the second or subsequent mortgagee, if the length of the last mentioned term permits, and in any case for a term less by one day at least than the term expressed to be assigned:
and, in this subsection, any such purported assignment as aforesaid includes an absolute assignment with a deed of defeasance and any other assurance which, but for this subsection, would operate in effect to vest the term of the mortgagor in a mortgagee subject to redemption.
(3)[F1Subsection (2) does not apply to registered land, but, subject to that, this section applies whether or not the land is registered land and whether or not] the mortgage is made by way of sub-mortgage of a term of years absolute, or is expressed to be by way of trust for sale or otherwise.
(4)Without prejudice to the provisions of this Act respecting legal and equitable powers, every power to mortgage for or to lend money on mortgage of a term of years absolute by way of assignment shall be construed as a power to mortgage the term by subdemise for a term of years absolute or by a charge by way of legal mortgage, or to lend on such security.
F1Words in s. 86(3) substituted (13.10.2003) by Land Registration Act 2002 (c. 9), ss. 133, 136(2), Sch. 11 para. 2(7) (with s. 129); S.I. 2003/1725, art. 2
(1)Where a legal mortgage of land is created by a charge by deed expressed to be by way of legal mortgage, the mortgagee shall have the same protection, powers and remedies (including the right to take proceedings to obtain possession from the occupiers and the persons in receipt of rents and profits, or any of them) as if—
(a)where the mortgage is a mortgage of an estate in fee simple, a mortgage term for three thousand years without impeachment of waste had been thereby created in favour of the mortgagee; and
(b)where the mortgage is a mortgage of a term of years absolute, a sub-term less by one day than the term vested in the mortgagor had been thereby created in favour of the mortgagee.
(2)Where an estate vested in a mortgagee immediately before the commencement of this Act has by virtue of this Act been converted into a term of years absolute or sub-term, the mortgagee may, by a declaration in writing to that effect signed by him, convert the mortgage into a charge by way of legal mortgage, and in that case the mortgage term shall be extinguished in the inheritance or in the head term as the case may be, and the mortgagee shall have the same protection, powers and remedies (including the right to take proceedings to obtain possession from the occupiers and the persons in receipt of rents and profits or any of them) as if the mortgage term or sub-term had remained subsisting.
The power conferred by this subsection may be exercised by a mortgagee notwithstanding that he is a trustee or personal representative.
(3)Such declaration shall not affect the priority of the mortgagee or his right to retain possession of documents, nor affect his title to or right over any fixtures or chattels personal comprised in the mortgage.
[F1(4)Subsection (1) of this section shall not be taken to be affected by section 23(1)(a) of the Land Registration Act 2002 (under which owner’s powers in relation to a registered estate do not include power to mortgage by demise or sub-demise).]
F1S. 87(4) inserted (13.10.2003) by Land Registration Act 2002 (c. 9), ss. 133, 136(2), Sch. 11 para. 2(8) (with s. 129); S.I. 2003/1725, art. 2
(1)Where an estate in fee simple has been mortgaged by the creation of a term of years absolute limited thereout or by a charge by way of legal mortgage and the mortgagee sells under his statutory or express power of sale—
(a)the conveyance by him shall operate to vest in the purchaser the fee simple in the land conveyed subject to any legal mortgage having priority to the mortgage in right of which the sale is made and to any money thereby secured, and thereupon;
(b)the mortgage term or the charge by way of legal mortgage and any subsequent mortgage term or charges shall merge or be extinguished as respects the land conveyed;
and such conveyance may, as respects the fee simple, be made in the name of the estate owner in whom it is vested.
(2)Where any such mortgagee obtains an order for foreclosure absolute, the order shall operate to vest the fee simple in him (subject to any legal mortgage having priority to the mortgage in right of which the foreclosure is obtained and to any money thereby secured), and thereupon the mortgage term, if any, shall thereby be merged in the fee simple, and any subsequent mortgage term or charge by way of legal mortgage bound by the order shall thereupon be extinguished.
(3)Where any such mortgagee acquires a title under the Limitation Acts, he, or the persons deriving title under him, may enlarge the mortgage term into a fee simple under the statutory power for that purpose discharged from any legal mortgage affected by the title so acquired, or in the case of a chargee by way of legal mortgage may by deed declare that the fee simple is vested in him discharged as aforesaid, and the same shall vest accordingly.
(4)Where the mortgage includes fixtures or chattels personal any statutory power of sale and any right to foreclose or take possession shall extend to the absolute or other interest therein affected by the charge.
(5)In the case of a sub-mortgage by subdemise of a long term (less a nominal period) itself limited out of an estate in fee simple, the foregoing provisions of this section shall operate as if the derivative term, if any, created by the sub-mortgage had been limited out of the fee simple, and so as to enlarge the principal term and extinguish the derivative term created by the sub-mortgage as aforesaid, and to enable the sub-mortgagee to convey the fee simple or acquire it by foreclosure, enlargement, or otherwise as aforesaid.
(6)This section applies to a mortgage whether created before or after the commencement of this Act, and to a mortgage term created by this Act, but does not operate to confer a better title to the fee simple than would have been acquired if the same had been conveyed by the mortgage (being a valid mortgage) and the restrictions imposed by this Act in regard to the effect and creation of mortgages were not in force, and all prior mortgages (if any) not being merely equitable charges had been created by demise or by charge by way of legal mortgage.
(1)Where a term of years absolute has been mortgaged by the creation of another term of years absolute limited thereout or by a charge by way of legal mortgage and the mortgagee sells under his statutory or express power of sale,—
(a)the conveyance by him shall operate to convey to the purchaser not only the mortgage term, if any, but also (unless expressly excepted with the leave of the court) the leasehold reversion affected by the mortgage, subject to any legal mortgage having priority to the mortgage in right of which the sale is made and to any money thereby secured, and thereupon
(b)the mortgage term, or the charge by way of legal mortgage and any subsequent mortgage term or charge, shall merge in such leasehold reversion or be extinguished unless excepted as aforesaid;
and such conveyance may, as respects the leasehold reversion, be made in the name of the estate owner in whom it is vested.
Where a licence to assign is required on a sale by a mortgagee, such licence shall not be unreasonably refused.
(2)Where any such mortgagee obtains an order for foreclosure absolute, the order shall, unless it otherwise provides, operate (without giving rise to a forfeiture for want of a licence to assign) to vest the leasehold reversion affected by the mortgage and any subsequent mortgage term in him, subject to any legal mortgage having priority to the mortgage in right of which the foreclosure is obtained and to any money thereby secured, and thereupon the mortgage term and any subsequent mortgage term or charge by way of legal mortgage bound by the order shall, subject to any express provision to the contrary contained in the order, merge in such leasehold reversion or be extinguished.
(3)Where any such mortgagee acquires a title under the Limitation Acts, he, or the persons deriving title under him, may by deed declare that the leasehold reversion affected by the mortgage and any mortgage term affected by the title so acquired shall vest in him, free from any right of redemption which is barred, and the same shall (without giving rise to a forfeiture for want of a licence to assign) vest accordingly, and thereupon the mortgage term, if any, and any other mortgage term or charge by way of legal mortgage affected by the title so acquired shall, subject to any express provision to the contrary contained in the deed, merge in such leasehold reversion or be extinguished.
(4)Where the mortgage includes fixtures or chattels personal, any statutory power of sale and any right to foreclose or take possession shall extend to the absolute or other interest therein affected by the charge.
(5)In the case of a sub-mortgage by subdemise of a term (less a nominal period) itself limited out of a leasehold reversion, the foregoing provisions of this section shall operate as if the derivative term created by the sub-mortgage had been limited out of the leasehold reversion, and so as (subject as aforesaid) to merge the principal mortgage term therein as well as the derivative term created by the sub-mortgage and to enable the sub-mortgagee to convey the leasehold reversion or acquire it by foreclosure, vesting, or otherwise as aforesaid.
(6)This section takes effect without prejudice to any incumbrance or trust affecting the leasehold reversion which has priority over the mortgage in right of which the sale, foreclosure, or title is made or acquired, and applies to a mortgage whether executed before or after the commencement of this Act, and to a mortgage term created by this Act, but does not apply where the mortgage term does not comprise the whole of the land included in the leasehold reversion unless the rent (if any) payable in respect of that reversion has been apportioned as respects the land affected, or the rent is of no money value or no rent is reserved, and unless the lessee’s covenants and conditions (if any) have been apportioned, either expressly or by implication, as respects the land affected.
[F1In this subsection references to an apportionment include an equitable apportionment made without the consent of the lessor.]
[F2(7)The county court has jurisdiction under this section where the amount owing in respect of the mortgage or charge at the commencement of the proceedings does not exceed [F3£30,000].]
F1Words added by Law of Property (Amendment) Act 1926 (c. 11), Sch.
F2S. 89(7) added by County Courts Act 1984 (c. 28, SIF 34), s. 148(1), Sch. 2 Pt.II para. 3(1)(3)
F3Words in s. 89(7) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt.I (with art. 12)
C1S. 89 extended (1.7.1991) by S.I. 1991/724, art. 2(4) (with art. 12)
C2S. 89(7) modified by County Courts Act 1984 (c. 28, SIF 34), s. 24(2)(c)
(1)Where an order for sale is made by the court in reference to an equitable mortgage on land (not secured by a legal term of years absolute or by a charge by way of legal mortgage) the court may, in favour of a purchaser, make a vesting order conveying the land or may appoint a person to convey the land or create and vest in the mortgagee a legal term of years absolute to enable him to carry out the sale, as the case may require, in like manner as if the mortgage had been created by deed by way of legal mortgage pursuant to this Act, but without prejudice to any incumbrance having priority to the equitable mortgage unless the incumbrancer consents to the sale.
(2)This section applies to equitable mortgages made or arising before or after the commencement of this Act, but not to a mortgage which has been over-reached under the powers conferred by this Act or otherwise.
[F1(3)The county court has jurisdiction under this section where the amount owing in respect of the mortgage or charge at the commencement of the proceedings does not exceed [F2£30,000]]
F1S. 90(3) added by County Courts Act 1984 (c. 28, SIF 34), s. 148(1), Sch. 2 Pt.II para. 3(1)(3)
F2Words in s. 90(3) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt.1 (with art. 12)
C1S. 90 extended (1.7.1991) by S.I. 1991/724, art. 2(4) (with art. 12)
C2S. 90(3) modified by County Courts Act 1984 (c. 28, SIF 34), s. 24(2)(c)
(1)Any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone, or for sale alone, or for sale or redemption in the alternative.
(2)In any action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and, notwithstanding that—
(a)any other person dissents; or
(b)the mortgagee or any person so interested does not appear in the action;
and without allowing any time for redemption or for payment of any mortgage money, may direct a sale of the mortgaged property, on such terms as it thinks fit, including the deposit in court of a reasonable sum fixed by the court to meet the expenses of sale and to secure performance of the terms.
(3)But, in an action brought by a person interested in the right of redemption and seeking a sale, the court may, on the application of any defendant, direct the plaintiff to give such security for costs as the court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them.
(4)In any case within this section the court may, if it thinks fit, direct a sale without previously determining the priorities of incumbrancers.
(5)This section applies to actions brought either before or after the commencement of this Act.
(6)In this section “mortgaged property” includes the estate or interest which a mortgagee would have had power to convey if the statutory power of sale were applicable.
(7)For the purposes of this section the court may, in favour of a purchaser, make a vesting order conveying the mortgaged property, or appoint a person to do so, subject or not to any incumbrance, as the court may think fit; or, in the case of an equitable mortgage, may create and vest a mortgage term in the mortgagee to enable him to carry out the sale as if the mortgage had been made by deed by way of legal mortgage.
[F1(8)The county court has jurisdiction under this section where the amount owing in respect of the mortgage or charge at the commencement of the proceedings does not exceed [F2£30,000]]
F1S. 91(8) added by County Courts Act 1984 (c. 28, SIF 34), s. 148(1), Sch. 2 Pt.II para. 3(1)(3)
F2Words in s. 91(8) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt.I (with art. 12)
C1S. 91 extended (1.7.1991) by S.I. 1991/724, art. 2(4) (with art. 12)
C2S. 91(8) modified by County Courts Act 1984 (c. 28, SIF 34), s. 24(2)(c)
[F1(1)]Where a mortgagee’s power of sale in regard to land has become exercisable but does not extend to the purposes mentioned in this section, the court may, on his application, authorise him and the persons deriving title under him to dispose—
(a)of the land, with an exception or reservation of all or any mines and minerals, and with or without rights and powers of or incidental to the working, getting or carrying away of minerals; or
(b)of all or any mines and minerals, with or without the said rights or powers separately from the land;
and thenceforth the powers so conferred shall have effect as if the same were contained in the mortgage.
[F2(2)The county court has jurisdiction under this section where the amount owing in respect of the mortgage or charge at the commencement of the proceedings does not exceed [F3£30,000].]
F1S. 92 renumbered as subsection (1) of that section by County Courts Act 1984 (c. 28, SIF 34), s. 148(1), Sch. 2 Pt.II para. 3(2)
F2S. 92(2) added by County Courts Act 1984 (c. 28, SIF 34), s. 148(1), Sch. 2 Pt.II para. 3(1)(3)
F3Words in s. 92(2) substituted (1.7.1991) by S.I. 1991/724, art. 2(8), Sch. Pt.I (with art. 12)
C1S. 92 extended (1.7.1991) by S.I. 1991/724, art. 2(4) (with art. 12)
C2S. 92(2) modified by County Courts Act 1984 (c. 28, SIF 34), s. 24(2)(c)
(1)A mortgagor seeking to redeem any one mortgage is entitled to do so without paying any money due under any separate mortgage made by him, or by any person through whom he claims, solely on property other than that comprised in the mortgage which he seeks to redeem.
This subsection applies only if and as far as a contrary intention is not expressed in the mortgage deeds or one of them.
(2)This section does not apply where all the mortgages were made before the first day of January, eighteen hundred and eighty-two.
(3)Save as aforesaid, nothing in this Act, in reference to mortgages, affects any right of consolidation or renders inoperative a stipulation in relation to any mortgage made before or after the commencement of this Act reserving a right to consolidate.
(1)After the commencement of this Act, a prior mortgagee shall have a right to make further advances to rank in priority to subsequent mortgages (whether legal or equitable)—
(a)if an arrangement has been made to that effect with the subsequent mortgagees; or
(b)if he had no notice of such subsequent mortgages at the time when the further advance was made by him; or
(c)whether or not he had such notice as aforesaid, where the mortgage imposes an obligation on him to make such further advances.
This subsection applies whether or not the prior mortgage was made expressly for securing further advances.
(2)In relation to the making of further advances after the commencement of this Act a mortgagee shall not be deemed to have notice of a mortgage merely by reason that it was registered as a land chargeor in a local deeds registry, if it was not so registered at the [F1time when the original mortgage was created] or when the last search (if any) by or on behalf of the mortgagee was made, whichever last happened.
This subsection only applies where the prior mortgage was made expressly for securing a current account or other further advances.
(3)Save in regard to the making of further advances as aforesaid, the right to tack is hereby abolished:
Provided that nothing in this Act shall affect any priority acquired before the commencement of this Act by tacking, or in respect of further advances made without notice of a subsequent incumbrance or by arrangement with the subsequent incumbrancer.
(4)This section applies to mortgages of land made before or after the commencement of this Act, but not to charges [F2registered under the M1Land Registration Act, 1925, or any enactment replaced by that Act [F2on registered land]] .
F1Words substituted by Law of Property (Amendment) Act 1926 (c. 11), Sch.
F2Words in s. 94(4) substituted (13.10.2003) by Land Registration Act 2002 (c. 9), ss. 133, 136(2), Sch. 11 para. 2(9) (with s. 129); S.I. 2003/1725, art. 2
C1S. 94 modified by Matrimonial Homes Act 1983 (c. 19, SIF 49:5), s. 2(10)
C2S. 94 modified (1.10.1997) by 1996 c. 27, ss. 31(12), 63(4) (with Sch. 9 para. 5(1)(b)(ii)); S.I. 1997/1892, art.3(1)(a)
M11925 c. 21.
(1)Where a mortgagor is entitled to redeem, then subject to compliance with the terms on compliance with which he would be entitled to require a reconveyance or surrender, he shall be entitled to require the mortgagee, instead of re-conveying or surrendering, to assign the mortgage debt and convey the mortgaged property to any third person, as the mortgagor directs; and the mortgagee shall be bound to assign and convey accordingly.
(2)The rights conferred by this section belong to and are capable of being enforced by each incumbrancer, or by the mortgagor, notwithstanding any intermediate incumbrance; but a requisition of an incumbrancer prevails over a requisition of the mortgagor, and, as between incumbrancers, a requisition of a prior incumbrancer prevails over a requisition of a subsequent incumbrancer.
(3)The foregoing provisions of this section do not apply in the case of a mortgagee being or having been in possession.
(4)Nothing in this Act affects prejudicially the right of a mortgagee of land whether or not his charge is secured by a legal term of years absolute to take possession of the land, but the taking of possession by the mortgagee does not convert any legal estate of the mortgagor into an equitable interest.
(5)This section applies to mortgages made either before or after the commencement of this Act, and takes effect notwithstanding any stipulation to the contrary.
(1)A mortgagor, as long as his right to redeem subsists, shall be entitled from time to time, at reasonable times, on his request, and at his own cost, and on payment of the mortgagee’s costs and expenses in this behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the custody or power of the mortgagee.
This subsection applies to mortgages made after the thirty-first day of December, eighteen hundred and eighty-one, and takes effect notwithstanding any stipulation to the contrary.
(2)A mortgagee, whose mortgage is surrendered or otherwise extinguished, shall not be liable on account of delivering documents of title in his possession to the person not having the best right thereto, unless he has notice of the right or claim of a person having a better right, whether by virtue of a right to require a surrender or re-conveyance or otherwise.
[F1In this sub-section notice does not include notice implied by reason of registration under the M1Land Charges Act, 1925, [F2or in a local deeds register].]
F1Proviso added by Law of Property (Amendment) Act 1926 (c. 11), Sch.
F2Words repealed (prosp.) by Law of Property Act 1969 (c. 59), s. 16(2), Sch. 2 Pt. I which repeal is no longer prospective as regards the Yorkshire deeds registries, their registers and areas
M11925 c. 22.
Every mortgage affecting a legal estate in land made after the commencement of this Act, whether legal or equitable (not being a mortgage protected by the deposit of documents relating to the legal estate affected) shall rank according to its date of registration as a land charge pursuant to the Land Charges Act, 1925.
This section does not apply [F1to mortgages or charges to which the Land Charges Act 1972 does not apply by virtue of section 14(3) of that Act (which excludes certain land charges created by instruments necessitating registration under the [F2Land Registration Act 1925 [F2Land Registration Act 2002]]), or] to mortgages or charges of registered landor of land within the jurisdiction of a local deeds registry.
F1Words substituted by Land Charges Act 1972 (c. 61, SIF 98:2), s. 18, Sch. 3 para. 1
F2Words in s. 97 substituted (13.10.2003) by Land Registration Act 2002 (c. 9), ss. 133, 136(2), Sch. 11 para. 2(10) (with s. 129); S.I. 2003/1725, art. 2
C1S. 97 extended by Middlesex Deeds Act 1940 (c. 34), s. 2(3); amended by Land Charges Act 1972 (c. 61), Sch. 3 para. 1
(1)A mortgagor for the time being entitled to the possession or receipt of the rents and profits of any land, as to which the mortgagee has not given notice of his intention to take possession or to enter into the receipt of the rents and profits thereof, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person.
(2)This section does not prejudice the power of a mortgagor independently of this section to take proceedings in his own name only, either in right of any legal estate vested in him or otherwise.
(3)This section applies whether the mortgage was made before or after the commencement of this Act.
Law of Property Act 1925