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Possessory rights of mortgagees - Essay Example

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This paper “Possessory rights of mortgagees” seeks to discuss the possessory rights of mortgagees with a specific focus on describing these privileges. It also seeks to elucidate remedies other than possession, which are available against defaulting borrower…
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Possessory rights of mortgagees
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Download file to see previous pages This is one of the original cases which began shaping the mortgage legal environment for different reasons. First, the case came against the backdrop of many incidents where mortgagees had lost their possessory rights because of legal schemes plotted by mortgagers.  In fact, the legal mortgage environment appeared to have been so bad that mortgagers continuously and repeatedly disenfranchised mortgagees because of defaults, which result from mortgagees’ inability to live up to the official agreement conditions. Secondly, it appeared that legal experts did little to guard against the disenfranchisement of their clients by mortgagers. Against these challenges, ruling on the Ropaigealach versus Barclays Bank Case shifted the way these issues were handled by both mortgagers and attorneys.   
 ‘The Ropaigealach decision illuminates brightly the true extent of a mortgagee’s possessory rights and may, if other mortgagees cannot resist the temptation to follow its lead, require the further intervention of Parliament to protect mortgagors of dwelling houses’.  While making the ruling, the judge held the Ropaigealachs were not served with the letter from the bank, with the ultimate command for payment, reprimanding that the assets would be put up for sale, since they were refurbishing it and they were away. The judge further declared that there would be no pronouncement that Barclays may possibly fail to assume possession exclusive of a court order since the legal instrument could not be otherwise interpreted.  4
While making further observations, the judge recognised the weight of the matter saying, ‘it does however strike me as very curious that mortgagors should only have protection in the case where the mortgagee chooses to take legal proceedings and not in the case where he chooses simply to enter the property’.5 The good judge admitted persuasion to the matter indicating that it was not feasible to conclude that Parliament had intentions to cover up such important cases. Through this case, the possessory rights of the mortgagees were restored by stopping Barclays Bank from selling the property in order to recover their defaulted payments.
Description of the Possessory Rights of Mortgagees
It is notable that the most efficient strategies mortgagees use to get back their security when a mortgagor defaults include sale of mortgaged property. This is only tenable when the mortgagee has the possessory rights to ensure listing of the assets in the marketplace as a vacant premise.6 This frequently takes place when the mortgagor has already vacated the premise to allow for selling of the asset. The mortgagee will, therefore, exercise the possessory ...Download file to see next pagesRead More
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