Mortgage and Its Types 56

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Mortgage and its Types
Mortgage
A mortgage is a debt instrument, secured by the collateral of specified real estate property, that the
borrower is obliged to pay back with a predetermined set of payments.
Who Uses a Mortgage?
Individuals and businesses use mortgages to make large real estate purchases without paying the
entire purchase price up front.
• If the borrower stops paying the mortgage, the lender can foreclose. They are a form of
incorporeal right.
• In a residential mortgage, a homebuyer pledges their house to the bank or other type of
lender, which has a claim on the house should the homebuyer default on paying the mortgage.
• In the case of a foreclosure, the lender may evict the home's tenants and sell the house, using
the income from the sale to clear the mortgage debt.
Types of Mortgages
• The most popular mortgages are a 30-year fixed and a 15-year fixed.
• Some mortgages can be as short as five years; some can be 40 years or longer.
• Stretching payments over more years reduces the monthly payment but increases the
amount of interest to pay.
Characteristics of Mortgage
• A mortgage can be effective only on immovable property, the immovable property includes
land, benefits that arise out of things attached to the earth like trees, buildings, and
machinery. But a machine that is not permanently fixed to the earth and is shiftable from one
place to another is not considered to be immovable property.
• A mortgage is the transfer of an interest in the specific immovable property and differs from
sale wherein the ownership of the property is transferred. Transfer of an interest in the
property means that the owner transfers some of the rights of ownership to the mortgagee
and retains the remaining rights with himself. For example, a mortgagor retains the right to
redeem the property mortgaged.
• The object of transfer of an interest in the property must be to secure a loan or performance of
a contract which results in monetary obligation. Transfer of property for purposes other than
the above will not amount to the mortgage. For example, a property transferred to liquidate
prior debt will not constitute a mortgage.
• The property to be mortgaged must be a specific one, i.e., it can be identified by its size,
location, boundaries, etc.
• The actual possession of the mortgaged property need not always be transferred to the
mortgagee.
• The interest in the mortgaged property is re-conveyed to the mortgage on repayment of the
loan with interest due on.
• In case the mortgager fails to repay the loan, the mortgagee gets the right to recover the debt
out of the sale proceeds of the mortgaged property.
Different Types of Mortgage

1. Simple mortgage: Without delivering possession of the mortgaged property, the mortgagor
binds himself personally to pay the mortgage money and agrees expressly or impliedly that in
the event of his failure to pay according to his contract, the mortgagee shall have a right to
cause the mortgaged property to be sold and the proceeds of the sale to be applied so far may
be necessary, m the payment of the mortgage money.
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2. Mortgage by conditional sale: Mortgage by conditional sale is one where the mortgagor
ostensibly sells the mortgaged property on the condition that.
• On default of payment of the mortgage money on a certain date the sale shall become
absolute, or
• On such payment being made the sale shall become void, or
• On such payment being made the buyer shall transfer the property to the seller.
3. Usufructuary mortgage: A usufructuary mortgage is one where the mortgagor delivers or
agrees to deliver the possession of the mortgaged property to the mortgagee and authorizes
him –
• To retain such possession until payment of the mortgage money,
• To receive the whole or any part of the rents and profits accruing from the property,
and
• To appropriate such rents or profits; (i) in lieu of interest, or (ii) in payment of the
mortgage money, or (iii) partly in lieu of interest and partly in lieu of the mortgage
money.
4. English mortgage: English mortgage has the following characteristics:
• The mortgagor makes a personal promise to repay the mortgage money on a certain
day.
• The property mortgaged is transferred to the mortgagee. The mortgagee, therefore, is
entitled to take immediate possession of the property. He/She may, under certain
circumstances sell the mortgaged property without the intervention of the court.
• The transfer is subject to this condition that the mortgagee will re-transfer the property
to the mortgagor upon making payment of the mortgage money as agreed.
5. Mortgage by deposit of title deeds: Where a person delivers to a creditor or his/her agent
documents of title to immovable property, to create a security thereon, the transaction is
called a mortgage by deposit of title deeds.
• This mortgage does not require registration. It is the most popular with banks.
6. Anomalous mortgage: A mortgage other than any of the mortgages explained so far. It is an
anomalous mortgage.
• Such a mortgage includes a mortgage formed by the combination of two or more types
of mortgages as explained above.
• It may, therefore, take various forms depending upon custom, local usage, or contract.
7. Based on the transfer of title to the mortgaged property, mortgages are divided into
types namely:
• Legal Mortgage: In a legal mortgage, the legal title to the property is transferred in favor of
mortgagee by a deed.
o The deed is to be registered when the principal money is Rs.100 or more. On
repayment of the loan, the legal title is re-transferred to the mortgagor.
o The method of creating a charge is expensive as it involves registration charges and
stamp duty.
• Equitable Mortgage: An equitable mortgage is affected by the delivery of documents of title
to the property to the mortgagee.
o The mortgagor through Memorandum of deposit undertakes to grant a legal mortgage if
he fails to pay the mortgage money.

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Mortgage and its Types

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