Real

Property
Understanding the Law
Table of Introduction

Contents Fixtures and Chattels

Land Ownership

Leases and Licences

Easements

Mortgages
Introduction
Real Property is concerned with the rights and liabilities
which arise in respect of immovable property. In its legal
sense, ‘land’ includes not just the soil and things growing
naturally on it, but any buildings and fixtures erected
thereon.
Owned Real Property=
Right in Rem
‘Ownership’ of real property gives a right
against the world, that is, a right in rem. A right
in rem suggests that the “owner” has a right to
take action against anyone who violates his
interest.
Fixtures and Chattles

FIXTURES CHATTLES

Any structure or material thing attached to Any structure which does not form part of
the land (realty and property of land owner) the land (removable)

Grounded in the maxim "quicquid plantatur

When removed, it should not transform,
solo solo cedit" ie. what is affixed to the land
alter or disrupt the character of the land
forms part of it and belongs to the soil

Examples: water heater, air conditioning, Examples: machines unattached to floor,

light fixtures, dishwashers zinc shed or store room
There are exceptions to the general rules concerning fixtures and chattels

Whether the chattel has become attached to the land that it is deemed
a fixture

Whether or not the law would grant the chattel owner chattel the right to
remove what may be considered a fixture but this is entirely
discretionary.
Fixtures and Chattles Cont'd
Determining whether an object is a fixture or chattle Lord Blackburn in
Holland v Hodgson (1872) LR 7 CP 328 says that "This is a question of fact
depending on the circumstances of each case, and principally on two
considerations; first, the mode of annexation to the soil or fabric of the
house, and the extent to which it is united to them, whether it can
easily be removed ...; secondly, on the object and purpose of the
annexation, whether it was for the permanent and substantial
improvement of the dwelling, ... or merely for a temporary purpose and
the more complete enjoyment and use of it as a chattel."
Mitchell v Cowie [1964] Test

According to Wooding CJ
“. . . It is essential not to confuse what are really two separate and wholly
independent issues: the first, whether the thing in question is a chattel or a
fixture: if it is a chattel . . . its owner may dispose of it without let or hindrance
whenever he pleases: but if it is a fixture, then and only then, the second issue
may be raised—whether it is subject to any right of removal.”
Mitchell v Cowie [1964] Test

Additionally, Wooding CJ coined 6 criteria to determine whether a chattel has or has

not become a fixture.

1. whether it was intended to form part of the land on which it stands (objective; ie
dependent on the circumstances)
2. whether the house is affixed to the land
3. generally, a house resting its weight on land (not affixed) will be a chattel unless,
based on the relevant facts and circumstances, there was an intention for it to
form part of the land. If you allege it is not part, you must prove
4. generally, a house affixed, whether slight or not, it will be part of the land unless,
based on the relevant facts and circumstances, there was an intention for it to
form part of the land. If you allege it is part, you must prove
Mitchell v Cowie [1964] Test
5. Specifically as regards a house affixed to land by a tenant thereof, a
circumstance of primary importance is the object or purpose of the annexation.

6. To ascertain the object or purpose of the annexation, regard must be had to

whether the affixation of the house to the land is temporary and for use a chattel, or
is permanent and intended to be for the better enjoyment of the land. But for this
purpose it must at all times be bone in mind that the intention or right of the tenant
to remove the house from the land on the cesser of his interest as tenant with the
result that no improvements will accrue to the landlord’s reversionary interest
If the article is not attached to the land by it's own weight then it is not part of the
land unless it is proven based on the circumstances and the intentions that it
should have form part of the land (Blackburn J in Holland v Hodgson). For a visual,
think about houses that rests on stilts
How to Determine If a Chattel Or Fixture Exists

1. Degree and mode of annexation; See Burke v Bernard; Eva Fields v

Rosie Modeste and Jrine Joseph

2. Purpose of annexation; See Burkeley v. Poulett, D’Eyncourt v.

Gregory, Mitchell v. Cowie, O’Brien v. Missick

3. Maker of annexation and relationship to the land

4. Would the land and chattel be damaged if removed

5. custom and usage ie is the type of activity common in that

particular area; See Baptiste v. Supersad

Land Ownership
Tenure: Concerned with the interest in land. Remember the Crown owns all land and we all
have 'tenure'.

Estate: Concerned with how long the interest lasts.

Types of Ownership
Fee simple or freehold estate: The primary characteristic of freehold estates is that they exist for
indefinite periods. There are three different types of freeholds: fee simple estates, fee tail estates and
life estates.

leasehold estate: A leasehold estate exists where ‘exclusive possession’ is granted for a term at a
rent. Leaseholds will be explored in much greater detail next semester. Suffice to say for now that the
primary distinction between a leasehold estate and a freehold estate is that the time for the
determination of a freehold as at an unknown point in the future, whereas it is a characteristic of a
leasehold that there is certainty of duration.

life estate: A life estates is not a ‘fee’, and as such it cannot be inherited by an heir on intestacy. These
however still fall within the category of ‘freehold’ as the time at which the estate will come to an end
cannot be stated with certainty. There are 2 types at common law; estate for the life of the guarantee
and estate pur autre vie (during the life of another person).
Legal and Equitable Interests
According to Kodilinye,
"A legal right, estate or interest is one that historically was recognised and
enforced by the common law courts, such as the old King’s Bench or
Common Pleas Courts. These courts tended to adopt a very inflexible
approach and would deny a remedy to a deserving plaintiff merely because
he had not observed the proper formalities. The Court of Chancery, on the
other hand, where rules of equity were applied, habitually mitigated the
harshness of the common law by recognising new rights, such as the
beneficiary’s interest under a trust, and by granting new remedies to deserving
plaintiffs, such as injunctions and specifi c performance, despite the absence
of the proper formalities".

emphasis added
 Legal and Equitable Interests
in simple terms

A legal Interest is that which is derived from a title or some other legally
recognizable document that guarantees a right in rem.

An Equitable interest on the other hand is that which arises where there is an
interest in the land but no title exists. The major difference however is that the
rights under this form of interest are not binding upon a bona fide purchaser of
a legal estate who has no notice of the existence of the equitable interest.
Waste
The holder of a fee simple estate (ie. a tenant for life or lease holder) has the right to use and
abuse the land as he sees fit, subject to the rights of his neighbours, public policy considerations,
injury to others (think of the rule in Rylands v Fletcher) and statute.

The holder of a life estate is on the other hand is limited in the activities in which he can partake in
the land, in that he ought not to despoil it in such a manner as to prejudice those in reversion or
remainder. A life tenant therefore should not commit waste, else he may incur tortious liability (the
doctrine is also applicable in landlord and tenant contexts).

Waste consists of some act which changes the nature of the land, for better or for worse. There are
four categories of waste:
(a) Ameliorating waste – this paradoxical term involves alterations which improve the land,
such as improving dilapidated buildings. Ameliorating waste is not capable of attracting an
award in damages (as no damage has been suffered), but equity may grant an injunction.
(b) Permissive waste – this occurs where the tenant fails to do what ought to be done, such
as through the non-repair of buildings or the non-clearance of a ditch. It however appears
that an action for permissive waste cannot be maintained in the absence of some covenant
or agreement.
(c) Voluntary waste – this occurs where the life tenant does what ought not to be done, such
as spoiling or destroying houses, cutting down timber or the removal of fixtures (which are
not tenant’s fixtures). In the absence of some express stipulation, a life tenant is liable for
voluntary waste.
A life tenant may be granted the estate exempting him from liability for voluntary
waste, for e.g. a grant “without impeachment of waste”. If no such exemption is given,
the life tenant is said to be “impeachable of waste”.
(d) Equitable waste – this only arises where the life tenant is granted his estate without
impeachment of waste. Equitable waste essentially leaves the door open for the life
tenant to be liable for wonton acts of destruction, such as stripping a house of fixtures
and substantially reducing its value, pulling down houses or removing timber placed
for ornament or shelter. An injunction may be obtained to restrain equitable waste.
Co-ownership
Co-ownership arises where two or more people hold the same estate or interest
in land at the same time, the focus being mutual ownership. The focus here is
therefore on simultaneous enjoyment of property as distinct from successive
interests.

There are two such forms for our purposes:

1. Joint Tenancy
2. Tenancy-in-Common
Joint Tenancy
This is distinguished by the four unities which give right of survivorship where
joint tenants concur in granting a lease, the interest of the lessee continues
notwithstanding the decease of either of the lessors, and the survivor is entitled
to the whole rent

The “four unities” for Joint Tenancy are:

1. Unity of possession
2. Unity of interest
3. Unity of title
4. Unity of time
Unity of possession

Unity of possession is common to a joint tenancy and a tenancy in

common. This exists where each co-tenant is entitled to physical
possession of the whole land. Therefore there can be no division of the
land and no restriction on any co-tenant’s use to any part of it. A co-
tenant cannot claim any part of the land as belonging to him/her.

Unity of interest

Unity of interest means that each joint tenant’s interest in the property
must be identical in nature, extent and duration. Thus each joint tenant
must have the same type of freehold, leasehold, reversion etc. Similarly
the interests of each joint tenant must be identical in quantity; therefore
if one co-owner is given a one-third share and the other a two-thirds
share, a joint tenancy cannot be created.
Unity of title

All of the co-owners must receive their interest in land under the same
document or instrument. All interest must have been given under the
same will for example.

Unity of time

Each joint tenant’s title must vest at the same time. A life tenant and a
remainderman could not therefore be a joint tenant in respect of the
same property because the remainderman would get possession later
in time.
Tenancy in Common
Tenants in common only has the unity of possession; they might
have unequal shares, and there is no right of survivorship. Each
tenant in common could at common law make a lease in respect of
his own share alone, the interest of each being separate and
distinct, and if tenants in common all joined in one lease it operated
as a lease by each of his respective share, and a confirmation by
each as to the shares of the others.
Features of Joint Tenancy

PRESENCE OF PRESENCE OF JUS ABSENCE OF

FOUR UNITIES ACCRESCENDI PROPORTIONS
(i) possession The Right of Survivorship There are no words of
(ii) interest severance to suggest
(iii)title anything having to do with
(iv) time proportions such as “in
equal shares”, “share and
share alike”, “divided
between” and “equally”.
Features of Tenancy in
Common

ABSENCE OF PRESENCE OF ONE PRESENCE OF

JUS UNITY PROPORTIONS
ACCRESCENDI
The only unity is the There are words of
There is no right of unity of possession severance to suggest
survivorship proportions such as “in
equal shares”, “share and
share alike”, “divided
between” and “equally”.
Severance
Severance relates to an act which destroys the joint tenancy, converting it into a
tenancy in common. This can be done by destruction of the unities of time, title
interest. As stated by Page Wood V-C in Williams v Hensman (1861) 70 ER 862:

A joint-tenancy may be severed in three ways: in the first place, an act of any one
of the persons interested operating upon his own share may create a severance as
to that share. … Secondly, a joint-tenancy may be severed by mutual agreement.
And, in the third place, there may be a severance by any course of dealing
sufficient to intimate that the interests of all were mutually treated as constituting a
tenancy in common.
A joint tenancy may therefore be severed in the following ways
(the first three evident from Page Wood V-C’s statement):
1. A joint tenant acting upon his own share;
2. Mutual agreement;
3. A course of dealing which intimates the shares are to be held
as tenants in common;
4. Homicide;
5. Written notice (in some jurisdictions);
What is a Lease?
"Where the only circumstances are that residential
accommodation is offered and accepted with exclusive
possession for a term at a rent, the result is a tenancy
[Lease]"

-Extracted From Street v Mountford [1985]

What is a Licence?
"A licence properly passeth no interest nor alters or transfers
property in any thing".

-Extracted From Thomas v Sorrell [1673]

A licence is essentially permission from an owner of land

(licensor) to the licensee to use the land for an agreed
purpose.

Oftentimes there is uncertainty as to the relationship created or the

purpose of the relationship (license). Parties tend to call their
relationship something different from what is really is. This includes;

1. Using terms consistent with another kind of relationship

2. Explicitly stating in documents, the creation of a relationship that
there is a particular intention to create a relationship of a certain
kind
3. There is no documentation for existing terms (courts will consider
the alleged discussions and review conduct to determine the
nature of relationship)
 Lease Licence

An interest in land; provides rights in rem or No rights in or to the land or to occupy it e.g.
proprietary rights; Bare licence
1.Right to exclude (including landlord) Contractual licence- if any right granted
Enforce rights by ejectment or action for then merely personal not proprietary;
trespass limited to terms of contract

Gives tenant/leaseholder the right to alienate

his interest, wholly or in part by way of No right to eject trespassers
assignment or subletting (unless parties

agree otherwise- See RRA S. 6)

No right to assign, sublet to 3rd parties and

Passes to the successor in title to the tenant license does NOT pass to successors of either
including by way of will or intestacy in cases party (unless the parties expressly agree
of natural persons and then only to the extent of the
agreement)
 Lease Licence

Rent restriction legislation applies Rent restriction legislation does not apply

Street v Mountford
1.Exclusive possession
2.For a certain term
3.(usually) at a rent

Type of occupancy is/was irrelevant for

determining the type created by the
agreement

Key Consideration
Is there some legally recognized reason why the occupancy is not a lease?
1. Did the parties not intend to create legal relation?
2. Is there other another legal relation that governs the occupation?
3. Does the grantor of the occupation not have the capacity to grant?

If 1 or more of the above is not made out on the facts or it is disclosed that the
existence of any 1 or more of the legally recognized reasons why the
occupation is not a lease then there is no lease
Exclusive Possession- Determination and Issues

According to Garner in A Practical Approach to Landlord and Tenant, 7th ed @ p.

26, in determining if exclusive possession is granted close attention must be paid
to the degree of control over the premises and their use which is retained by their
owner.

Things that have been brought up to defeat or support a claim of exclusive

possession;
1. Provision of services attendant to the grant of occupation
2. Grantor’s retention of keys to the premises occupied
3. Grantors provision of right to permit other occupiers to share the premises
from time to time= multiple occupation
Landlord and Tenant
The relationship of a landlord and tenant if created by agreement is
created at law ie, grant of lease and in equity ie by specifically
enforceable agreement for a lease. The subject of the LL and T
relationship is “leasehold estate” or “lease” or “tenancy”. Lease is used to
refer to the document that creates the estate or the estate itself.
If the courts have concluded on there being exclusive possession for a certain
term at a rent then they will consider whether;

1. The parties lacked an intention to create legal relations between themselves

= question of fact
2. Some other legal relationship between them which is why exclusive
possession was granted
3. The grantor of the accommodation doesn’t have the power to grant the
tenancy

Lord Templeman in Street said that an occupier who enjoys exclusive possession
is not necessarily a tenant. It would be a freeholder, trespasser or mortgagee in
possession.
Types of Tenancies
Fixed Term Lease: A lease may be granted for any fixed period, however short or
long, provided there is a certain beginning and a certain ending within the principles
previously described. Leases for one year, two years or five years on the one hand,
and leases for 21, 99 or 999 years on the other, are common. A lease for a fixed
period terminates automatically when the period expires; there is no need for any
notice to quit by the landlord or the tenant.

Another basic characteristic of a fixed term lease is that the landlord cannot
terminate the lease before the end of the period unless the tenant has been in
breach of a condition in the lease, or the lease contains a forfeiture clause and the
tenant has committed a breach of covenant which entitled the landlord to forfeit the
lease. Nor can the tenant terminate the lease before it has run its course; he may only
ask the landlord to accept a surrender of the lease, which offer the landlord may
accept or reject as he pleases.
Types of Tenancies
Periodic Tenancy: Weekly, monthly, quarterly and yearly tenancies are the
commonest examples of periodic tenancies. Such tenancies continue indefinitely until
terminated by proper notice to quit by the landlord or the tenant.

A periodic tenancy may be created expressly or by implication. It is created expressly

where some words such as ‘yearly tenant’ or ‘monthly tenant’ or ‘tenant from year to
year (or from month to month)’ are used. More often, such a tenancy will arise by
implication of law. In such a case, the periodic tenancy will be measured according to
the frequency of payment of rent. Thus, if L lets land to T at ‘$12,000 a year', a yearly
tenancy arises; if it is at ‘$1,000 per month’, there is a monthly tenancy and so on.
Types of Tenancies
Tenancy at Will: A tenancy at will exists when a person occupies the land of another
on the understanding that he may go when he likes and that the owner may
terminate his interest at any time the owner wishes so to do. A tenancy at will has
been properly described as a personal relationship between the landlord and his
tenant and it is important, in this case, to note that it is determined by the death of
either of them.

Tenancy at Sufferance: Where T remains in possession of the land after the expiry
of his lease without L’s assent or dissent, a tenancy at sufferance arises. A tenant at
sufferance differs from a trespasser in that his original entry was lawful, and from a
tenant at will in that his tenancy exists without L’s consent. L may claim possession at
any time, and he is entitled to claim compensation for T’s ‘use and occupation’. The
relationship may be converted into a periodic tenancy by the payment of rent
Types of Tenancies
Tenancy by Estoppel: If L purports to grant a lease of land to T but L has no title to
the land, L is estopped from repudiating the tenancy and T is also estopped from
denying L’s title and the tenancy’s existence. In such a case, there arises a ‘tenancy by
estoppel’ which, although invalid vis à vis third parties, is binding on L and T and, as
between them, has the attributes of a true tenancy. As Farwell LJ described it:60 It is
true that a title by estoppel is only good against the person estopped and imports
from its very existence the idea of no real title at all, yet as against the person
estopped it has all the elements of a real title. Thus, covenants contained in the lease
are enforceable by and against L and T and their successors
 Landlord's Implied
Covenants

COVENANT FOR QUIET ENJOYMENT COVENANT NOT TO DEROGATE FROM

GRANT
The tenant is entitled to recover damages from the
landlord if the landlord or any other person claiming This means that the landlord ‘must not frustrate
through him substantially disturbs or physically the use of the land for the purposes for which it
interferes with the tenant’s enjoyment of the land. was leased'.
(Cutting off electricity, removing doors, windows or For example where L lets to T an apartment in a
roof of building) building intended for purely residential use, he
commits a breach of covenant if he
subsequently lets most of the other apartments
in the building for business purposes
 Tenant's Implied
Covenants

OBLIGATION NOT TO COMMIT WASTE

A tenant for a fixed term is liable for both voluntary waste (that is, positive acts of
injury to the property, such as altering or destroying it) and permissive waste (that is,
allowing the property to become dilapidated, through omission to repair) and,
therefore, in the absence of an express stipulation to the contrary, he must keep the
premises in proper repair
BREACH OF
COVENANT
Consequences Arising for the Tenant and Landlord
Consequences
Summarised
LIABILITY OF THE LANDLORD FOR BREACH OF
COVENANT
As you would already know, the landlord’s covenants
cover a covenant for quiet enjoyment or covenants to
keep in reasonable repair. For breach of these covenants
the landlord, the tenant may be entitled to compensating
by way of damages. Because of privity of estate, like the
tenant, the landlord’s successors are bound by
covenants which ‘run with the land’. They are not
enforceable against a successor where the landlord’s
covenants do not run with the land but are personal
between him and the tenant as tenant
Consequences
Summarised
LIABILITY OF THE TENANT FOR BREACH OF
COVENANT
Where the tenant has a personal agreement with the sub
lessee which does not touch and concern the land, this
arrangement is not enforceable against the tenant’s
successor. This is illustrated in Hand v Blow [1901], where
a tenant covenanted with his landlord to replace chattels
and machinery which were not fixtures, it was held that
the covenant could not be enforced against the tenant’s
assignee as it did not run with the land. The landlord may
seek to terminate a lease or enforce its covenant where
the tenant is in breach of the covenant.
 An obligation which restricts the use and

Summarising Restrictive covenants enjoyment of the land it is called

restrictive covenant

Covenants
Run With the land

Covenant

Does not run with

the land

Positive Covenants An obligation which requires expenditure

of money or maintaining a fence or any
structures on the property is called a
positive covenant
EASEMENTS
Unique circumstance where My Land can be
controlled by another
What is an Easement?

An easement is a right in alieno solo (over the land of another).

Circumstances can arise where a landowner may wish to grant
certain rights over his land to another person, which fall short of
a grant of possession. For example, he may wish to grant to an
adjoining landowner a right to pass and repass over his land on
foot or with vehicles (an easement of way); or a right to lay pipes
under his land to convey water or sewage; or he may agree to
curtail his own rights in favour of another, for example, to agree
not to build on a defined portion of his land so as to ensure that
light continues to reach his neighbour’s windows (an easement of
light); or he may agree not to pull down his own portion of a
duplex house so as to withdraw support from his neighbour’s
portion (an easement of support)
Characteristics of an Easement

The easement must The dominant and The right claimed

There must be a accommodate the servient owners must be capable of
dominant and a dominant tenement, must be different forming the subject
servient tenement that is, it must be persons matter of a grant
connected with its
enjoyment and be for
its benefit
Presence of a Dominant
and Servient Tenement
There must be a servient tenement over which
the right is exercised. Where one has to use the
property belonging to another (servient
tenement) to access his land (dominant
tenement) this is an easement. So that, if there is
no dominant tenement, there is only the servient
tenement. If one is using the servient tenement
then that is a licence and not an easement.
There cannot be an easement in gross, that is,
an easement cannot exist where the claimant
has no interest in a dominant tenement, the
enjoyment of which is dependent on an
easement over a servient tenement
Accommodation of
Dominant Tenement
This rule requires that the right must confer an
advantage on the dominant land. It is not
sufficient that only a mere personal advantage is
being enjoyed but must be a right for the better
enjoyment of the dominant tenement. The
dominant and servient tenements need not be
adjacent to each other, though this is usually the
case. An example of this is where a utility
company is granted an easement to place its
pole and wires over X’s land, even though the
utility company’s land, the dominant tenement,
may be far away from X’s land, the servient
tenement.
Need for Difference Between
Dominant and Servient Owners

the two tenements must not be both owned and

occupied by the same person. An easement is
essentially a right over another’s land for the
benefit of one’s own, and one cannot exercise a
right against oneself. Thus, if a person owns two
pieces of land and has to walk across one to
reach the other, he is not exercising an
easement. However, this same situation can give
rise to a ‘quasi-easement’ as seen in Wheeldon v
Burrows, a potential easement which could
develop into an easement if the plots came into
separate hand
Right Must be Capable of
Forming a Grant The right must be sufficiently defined: it must
not be too vague

The basic principle is that all easements ‘lie in grant’;

that is, in theory, every easement is created by grant,
whether express, implied or presumed. Thus, no right The right must not substantially deprive the
can be an easement unless it is capable of being servient owner of possession of the servient
granted. This proposition is somewhat unhelpful, since tenement
it does not define what characteristics a right must
possess in order that it may be granted. However, it
appears from the case law that there are at least four There must be a capable grantor and grantee
requirements.

See Pages 176-180 in Kodilinye

An easement must be negative from the
point of view of the servient owner, that is, it
must not involve the servient owner in any
expenditure
Acquisition of Easements

An easement may be acquired by: Acquisition by Grant

(i) statute
Necessity
(ii) a grant

(iii) reservation

Intended Easement
A conveyance of land shall be deemed to include and shall by virtue of this
Act operate to convey with the land, all buildings, erections, fixtures,
commons, hedges, ditches, fences, ways, waters, watercourses, liberties,
privileges, easements, rights and advantages whatsoever, appertaining or
reputed to appertain to the land, or any part thereof, or at the time of
conveyance demised, occupied or enjoyed therewith, or reputed or known Quasi-Easement
as part or parcel of or appurtenant to the land, or any part thereof.

-Section 9 Jamaica Conveyancing Act

Acquisition By Reservation
Reservations occur when the owner of the given land B disposes of part of that land
to A, on condition that B will be able to nevertheless exercise an easement or profit
over that disposed land.

The reservation may also be expressed or implied:

(a) For the express reservation to apply it must be specifically stated in the
instrument of transfer or deed of conveyance

(b) In Wheeldon v Burrowes the claim was for an implied reservation of the right of
access to light. Such right was claimed as being impliedly reserved in the
conveyance. The Court of Appeal held that a reservation can only arise where it is
expressly stated in the conveyance.
 EXTINGUISHING EASEMENTS

BY UNITY OF
OWNERSHIP BY EXPRESS BY IMPLIED
AND RELEASE BY DEED
RELEASE
POSSESSION OF
(‘ABANDONMENT’)
THE DOMINANT
AND SERVIENT
TENEMENTS
01 02 03
Mortgages
 Mortgage???
A mortgage has been defi ned as ‘a conveyance or other disposition of an
interest in property designed to secure the payment of money or the
discharge of some other obligation’. A mortgage of land may be legal or
equitable, and it may relate to freehold or leasehold land.
Lindley MR in Santley v Wilde [1899] 2 Ch 474, defined a mortgage as a
disposition of an interest in land or other property as a security for the
payment of a debt or the discharge of some other obligation for which it is
given

Basically...
Mortgage = real security for the payment of money lent.

Mortgagor is a creditor who has rights over property of the debtor who
is a mortgagee.
Legal mortgage of unregistered land may be created by a conveyance of
the mortgagor’s fee simple estate to the mortgagee subject to a proviso
that, upon redemption (that is, repayment of the debt), the property
should be reconveyed to the mortgagor

A legal mortgage arises where all legal formalities in terms of registering

a mortgage has been observed. The title will also reflect the fact of
registration

An equitable mortgage is one in which the lender is secured by taking the

deposit of title-deeds given by the owner of an estate, for money
borrowed with an accompanying agreement to execute a regular
mortgage, or by the mere deposit of the title without any further
arrangements.
An equitable mortgage may arise where
1. the owner of an equitable interest in land assigning his interest to a
mortgagee
2. The owner of a legal interest effecting an informal mortgage
3. The deposition of title deeds by owner with the intention that the
mortgagee should hold them as security for the loan
 Rights of a Mortgagor
The mortgagor has a legal right to redeem...
A mortgage deed refers to the loan and conveys the mortgaged property to
the mortgagee subject to the right of the mortgagor to redeem (that is, to
repay the loan plus interest and recover his property) on a fixed date, which
is, by tradition, normally six months from the date of execution of the
mortgage. There is, therefore, a contractual right to redeem on the stipulated
date. At common law, if the mortgagor failed to redeem his property on the
exact day fi xed by the agreement, then the estate of the mortgagee became
absolute and the mortgagor’s interest in the land was extinguished. In
modern mortgages, on the other hand, principal and interest are normally
repayable by monthly instalments over a long period: for example, 25 years.
 Rights of a Mortgagor
The mortgagor has a...

Equitable right to redeem or equity of redemption according to Lord

Hardwicke LC in an old case, Casborne v Scarfe [1738] is “[and] has always
been considered as an estate in the land, for it may be devised, granted, or
entailed with remainders . . . the person therefore entitled to the equity of
redemption, is considered as the owner of the land ... The interest of the land
must be somewhere, and cannot be in abeyance, but it is not in the
mortgagee, and therefore must remain in the mortgagor”
Key to note
1. Once a mortgage always a mortgage- equity of redemption is for the
mortgagor and terms that are at odds with a mortgage and are
favourable to the mortgagee are generally void.
2. There should be no clogs on the equity of redemption- any term in
the mortgage agreement that constitutes a ‘clog’ on the equity of
redemption will be void; nothing should prevent the equity of
redemption from returning to the mortgagor
3. Collateral advantages after redemption (restricting redemption)- A collateral
advantage in the mortgagee’s favour denotes some benefit conferred on him
by the mortgagor in addition to repayment of the loan plus interest: for
instance, where the mortgagor of a public house agrees to sell on the premises
only beer brewed by the mortgagee. Two general rules apply: (a) the collateral
advantage must not be unfair or unconscionable; and (b) the collateral
advantage must not unfairly restrict redemption.

4. Restraint of trade- Under this doctrine, any stipulation in a contract that

imposes an unreasonable restriction on the freedom of a person to engage in
trade or to pursue a profession will be prima facie void.
Rights of Mortgagor in
Possession
The mortgagor, though obligated to pay the monthly installments to
the mortgagee, retains rights over the property without having to
account to the mortgagee. Some of these retained rights are:

1. A right to rents and profits obtained from the property

2. A right to sue for trespass against a trespasser
3. A right to grant valid leases
Rights of a Mortgagee
There are five of these, viz:
(a) right to sue on the personal covenant;
(b) right to enter into possession of the mortgaged property;
(c) right to appoint a receiver;
(d) right to sell the mortgaged property; and
(e) right to foreclose the mortgage.

These remedies are both concurrent and cumulative: the mortgagee

can pursue all or any simultaneously as soon as the mortgagor is in
default, and, if one remedy proves insuffi cient to