ZAFAR & ASSOCIATES - LLP | Mortgage Law Services - Pakistan

Mortgage law signifies mortgage, a legal instrument which is used to create a security interest in real property held by a lender as a security for a debt, usually a loan of money, a mortgage in itself is not a debt, it is the lender's security for a debt.

Mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.

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Transfer of Interest

The first requisite of a mortgage is that there should be a transfer of an interest in immovable property, so where there is no actual transfer of some interest there is no mortgage. A mere agreement to transfer cannot create a mortgage.

Thus, when the borrower agrees not to alienate a specified property till the loan is repaid, the condition only imposes a restriction on his power of disposal of the property and does not amount to the transfer of an interest in it so as to create a mortgage of the property.

The mortgagee has an interest in the property as a security for his debt subject to the important limitation, that so long as that interest subsists, the mortgagor has the right to redeem the property.

The Deed of Trust

The deed of trust is a deed by the borrower to a trustee for the purposes of securing a debt. In most states, it also merely creates a lien on the title and not a title transfer, regardless of its terms. It differs from a mortgage in that, in many states, it can be foreclosed by a non-judicial sale held by the trustee. It is also possible to foreclose them through a judicial proceeding.

According to Transfer of Property Act, 1882 there are mainly six kinds of mortgages:

Simple Mortgage

Where, 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 failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be supplied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee. The essentials of a simple mortgage are:

• The mortgagor undertakes personal liability;

• No possession is delivered;

• There is no foreclosure;

• No power of sale out of Court, but a decree for the sale of mortgaged property must be obtained; and

• It must be effected by a registered document even if the consideration is below Rs. 100.

In the Punjab, registration, where the value is below Rs. 100, is not necessary because the Transfer of Property Act does not apply to the Punjab and under the Registration Act if an interest of the value of Rs.100 or more in immovable property is transferred, registration under the Act is essential.

In a simple mortgage two remedies are open to a mortgagee:

A suit for money decree; or

A suit for the sale of the property mortgaged.

If there is a provision in a simple mortgage that if default is made in payment of interest, the mortgagee will take possession of the property mortgaged, then this is not a simple mortgage but an anomalous mortgage combining in itself the incidents of both a simple and a usufructuary mortgage.

Mortgage by Conditional Sale

Where the mortgagor ostensibly sells the mortgaged property-

On condition that on default of the payment of the mortgage-money on a certain date the sale shall become absolute, or

On condition that on such payment being made the sale shall become void, or

On condition that, on such payment being made the buyer shall transfer the property to the seller.

The transaction is called a mortgage by conditional sale and the mortgagee by conditional sale:

Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.

In this mortgage:

• The mortgagor ostensibly sells the mortgaged property;

• The ostensible sale ripens into absolute proprietorship on default;

• There is no covenant for the personal liability, unless expressly stipulated;

• The remedy of the mortgagee is foreclosure and not sale; and

• The document should be registered if the consideration is Rs. 100 or more. If less than Rs. 100 it can be effected by delivery of the property or by a registered instrument.

Usufructuary Mortgage

Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee and authorizes him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee and usufructuary mortgagee.

English Mortgage

Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.

Mortgage by Deposit of Title-Deeds

A mortgage by deposit of title-deeds is commonly known as an equitable mortgage. The essentials of such a mortgage are:

• A debt;

• Deposit of Title-Deeds; and

• An intention that the title-deeds shall form security for the debt.

In a mortgage by deposit of title deeds, two questions are of importance: (1) What are title-deeds? (2) Where should they be deposited to create a valid mortgage?

When in a transaction of mortgage by deposit of title-deeds, such deeds are handed over accompanied by a document constituting a bargain between the parties, such document require registration but when it merely records an already completed transaction it does not require registration as law supposes that the scope of the security is the scope of the title.

Where a person in the town of Karachi, and in any other town which the Provincial Government concerned may, by notification in the official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.

Provided that, where a mortgage by deposit of title-deeds is to be created in favour of a banking company as defined in the Banking Tribunals Ordinance, 1984, the same may also be created by an entry in the record-of-right against the entry relating to such immovable property.

Anomalous Mortgage

A mortgage which is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.

Following are the kinds of sub-mortgage:

Pledge or Pawn

Pledge is a bailment to a creditor as security for some debt or engagement. A pledge, considered as a transaction, is bailment or delivery of goods or property by way of security for a debt or engagement, or as a transaction, is a bailment or delivery of goods or property by way of security for the performance of an act. Another definition is that a pledge is a security interest in a chattel or in an intangible represented by an indispensable instrument (such as formal, written evidence of an interest in an intangible so representing the intangible that the enjoyment, transfer, or enforcement of the intangible depends upon possession of the instrument), the interest being created by a bailment for the purpose of securing the payment of a debt or the performance of some other duty. A pledge is a promise or agreement by which one binds himself to do or forbear something.

Charge

Where immovable property of the debtor is used as security for the payment of money to the creditor, is said to have a charge on the property. It is different from the mortgage in that the charge does not involve the transfer of interest in the property, while the mortgage does.

Lien

Lien is a charge or security or encumbrance upon property. Lien is a charge against or interest in property to secure payment of a debt or performance of an obligation. Lien is a "right in one man to retain that which is in his possession, but belongs to another, till certain demands of the person in possession are satisfied." It can arise in one of three ways: (1) By Common Law. (2) By express or implied contract. (3) By the general course of dealing in the trade in which to retain the property is claimed for a general balance of accounts while particular lien is a right to retain property "for a charge on account of labour employed or expenses bestowed upon the identical property detained." It describes the right to retain property until some debt in claim is paid. Thus an inn-keeper has a lien on a lodger's property until the bill for board and lodging is paid.

Registration of Mortgages, Charges etc.

Transfer of Property Act, 1882

According to the Section 59 of the Transfer of the Property Act, 1882, where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title-deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.

Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.

Registration must be in accordance with the provisions of the Registration Act, 1908 and a defective registration would vitiate the mortgage transaction. The document will be inadmissible in evidence for want of registration, though it can be received in evidence for a collateral purpose to prove the nature of the possession of the mortgagee, or the personal obligation of the mortgagor for the purpose of granting a simple money decree.

Companies Act, 2017

According to the Companies Act 2017, every mortgage, charge or other interest created by a company and being either:

• a mortgage or charge for the purpose of securing any issue of debentures; or

• a mortgage or charge on uncalled share capital of the company; or

• a mortgage or charge on any immovable property wherever situate or any interest therein; or

• a mortgage or charge on any book debts of the company; or

• a mortgage or charge, not being a pledge, on any movable property of the company; or

• a floating charge on the undertaking or property of the company, including stock-in-trade; or

• a mortgage or charge on a ship or any share in a ship; or

• a mortgage or charge on goodwill, on a patent or license under patent on, a trade mark, or on a copyright or licence under a copyright; or

• a mortgage or charge or other interest based on agreement for the issue of any instrument in the nature of redeemable capital; or

• a mortgage or charge or other interest based on a mushrika agreement; or

• a mortgage or charge or other interest based on hire-purchase or leasing agreement for acquisition of fixed assets;

shall, so far as any security on the company's property or undertaking is thereby conferred, be void against the liquidator and any creditor of the company, unless the prescribed particulars of the mortgage or charge, together with a copy of the instrument, if any, verified in the prescribed manner, by which the mortgage or charge is created or evidenced are filed with the registrar for registration in the manner required by Companies Act within twenty-one days after the date of its creation, but without prejudice to any contract or obligation for repayment of the money thereby secured, and when a mortgage or charge becomes void under this section the money secured thereby shall immediately become payable.

Effect of Non-Registration

If a mortgage or charge, which requires registration under the Companies Act 2017, is not registered, it does not mean that the transaction is altogether void or the debt is not recoverable. The only consequence is that the security created by the mortgage or charge become void as against the liquidator and other creditors. The omission to register does not prejudice any contract or obligation for repayment of the money secured by the charge, and where the charge becomes void for want of registration, the money secured by it immediately becomes payable. It must, however, be noted that as against the company itself, so long as the company does not go into liquidation, the mortgage or charge is good, and may be enforced.

Prohibition of Floating, Charge on Assets

• According to the Banking Companies Act, no banking company shall create a floating charge on the undertaking or any property of the company or any part thereof, unless the creation of such floating charges is certified in writing by the State Bank as not being detrimental to the interests of the depositors of such company.

• Any such charge created without obtaining the certificate of the state Bank shall be invalid.

• Any Banking Company aggrieved by the refusal of a certificate, may within ninety days from the date on which such refusal is communicated to it, appeal to the Federal Government.

• The decision of the Federal Government where an appeal has been preferred to it or of the State Bank where no such appeal has been preferred shall be final.

At common law, an estate created by a conveyance absolute in its form, but intended to secure the performance of some act, such as the payment of money, an the like, by the grantor or some other person, and to become void if the act is performed agreeably to the terms prescribed at the time of making such conveyance. The mortgage operates as a conveyance of the legal title to the mortgage, but such title is subject to defeasance on payment of the debt or performance of the duty by the mortgagor.

The above definitions are applicable to the common law (i.e. estate or title) conception of a mortgage. Such conception is still applicable in certain states. But in many other states, a mortgage is regarded as a mere lien, and not as creating a title or estate. It is a pledge or security of particular property for the payment of a debt or the performance of some other obligation, whatever from the transaction may take, but is not now regarded as a conveyance. Still other states have adopted a hybrid or intermediate theory or category of mortgage.

The History of Mortgage Law

Mortgage Law originated in the English feudal system as early as the 12th century. At that time the effect of a mortgage was to legally convey both the title of the interest in land and possession of the land to the lender. This conveyance was 'absolute', that is subject only to the lender's promise to re-convey the property to the borrower if the specified sum was repaid by the specified date. If, on the other hand, the borrower failed to comply with the terms, then the interest in land automatically became the lender's and the borrower had no further claims or recourses at law. There were, back in feudal England, basically two kinds of mortgages: 'ad vivum vadium', Latin for 'a live pledge' in which the income from the land was used by the borrower to repay the debt, and 'ad mortuum vadium', Latin for 'a dead pledge' where the lender was entitled to the income from the land and the borrower had to raise funds elsewhere to repay the debt. Whereas at the beginning only 'live pledges' were legal and 'dead pledges' were considered an infringement of the laws of usury and of religious teachings, by the 14th century only dead pledges remained and were all very legal and very religious. And, apparently, they are still very religious in the 21st century.

A mortgage is an interest in land created by a contract, not a loan. Although almost all mortgage agreements contain a promise to repay a debt, a mortgage is not a debt by and in itself. It can be better characterized as evidence of a debt. More importantly, a mortgage is a transfer of a legal or equitable interest in land, on the condition sine qua non that the interest will be returned when the terms of the mortgage contract are performed. A mortgage agreement usually transfers the interest in the borrower's land to the lender. However, the transfer has a condition attached: if the borrower performs the obligations of the mortgage contract, the transfer becomes void. This is the reason why the borrower is allowed to remain on title as the registered owner. In practicality, he retains possession of the land but the lender holds the right to the interest in said land.

In essence, therefore, a mortgage is a conveyance of land as a security for payment of the underlying debt or the discharge of some other obligation for which it is given. In a mortgage contract, the borrower is called 'mortgagor' and the lender 'mortgagee'.

Express Contractual Terms of a Mortgage

Following is an analysis of the clauses contained in most mortgage contracts. It should be emphasized, however, that the wording varies from contract to contract, and that the types of clauses change to conform to the particular types of securities mortgaged.

Redemption

When the mortgagor fails to fulfill his obligations under the contract, the mortgage will be void and the mortgagee will be bound to recovery the legal interest to the mortgagor.

Transferability

All the covenants made by the mortgagor will be binding upon him, his heirs, executors and administrators. This is the case whether the legal interest is held by the mortgagee, or by the mortgagee's heirs, executors, administrators or assignees.

Personal Covenant

The contractual promise made by the borrower is his personal covenant. Because of this, it does not run with the land, so that the lender can sue the borrower on his personal covenant even in the eventuality that the borrower has sold the interest in land to someone else who has assumed the mortgage. In practicality, this means that until the original mortgage contract is valid, in full force and effect the original mortgagor is always liable.

Title Integrity

The mortgagor confirms and guarantees that he is the owner in fee simple and holds all rights and powers that such ownership entails, including the right to convey the land to the mortgagee.

Free and Clear

This is the very essence of the security for the debt: the title must be free and clear of all encumbrances (subject to certain statutory rights, such as taxation), so that conveyance can take place. Upon conveyance, the interest is transferred to the lender while the borrower retains possession. But on default, the borrower will deliver also possession to the lender subject to any encumbrance in priority. This can be a tax lien or, in the case of default on a second mortgage, a first mortgage.

Further Assurances

In the event of default, the mortgagor promises to do all that is necessary to allow the lender to obtain title of the property.

Prior Encumbrances

Except for statutory encumbrances, the mortgagor must make a declaration of any and all charges that have priority over the mortgage being contracted, otherwise the lender expects and has the right to be registered in first priority.

Insurance

The mortgage covenants to either keep the buildings located on said land insured at all times or, in the alternative, to provide a cash bond covering the replacement cost of said buildings.

Release of all Claims

The borrower gives up any claims he may have against the lender with respect to the property, except the borrower's right to demand reconveyance when the underlying debt is repaid.

Acceleration on Default

Acceleration is a proviso stipulating the on default the principal and interest of the underlying debt will both become due and payable forthwith at the option of the mortgagee.

Quiet Possession

A stipulation that, until default, the mortgagor shall have quiet possession of said lands.

Omnibus Clause

In default of any payment of money to be paid by the mortgagor under the terms of the mortgage contract, the mortgagee may pay the same and the amount so paid shall be added forthwith to the principal debt secured by the contract and carrying interest at the same rate stipulated by the contract.

Repairs

The mortgagor has a duty and an obligation to keep the lands and the buildings thereon in good conditions and in a reasonable state of repair and, furthermore, he will not abandon or commit waste anywhere on the mortgaged property. This clause is intended to safeguard the value of the lender's security.

Advances

The mortgagee shall not be bound to advance any part of the money intended to be secured by the mortgage contract. For example, where part of the money has been advanced and subsequently a builder's lien is filed against the land, the lender will require the lien to be removed before advancing further funds. Note that builder's liens have priority over mortgages.

Sale Clause

Also known as 'Due on Sale' the mortgagor agrees to pay, at the option of the mortgagee, all principal and interest of the underlying debt upon sale of the property. This clause effectively prevents the mortgage from being assumed by anyone unacceptable to the lender. Obviously, the other option of the lender is not to call the loan if the mortgagor sells to a Buyer acceptable to the lender. In the absence of this clause, the mortgage is always assumable.

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