The statutory of the enforcement of residential mortgages : historical foundations and contemporary structures

The central concern of this work is to produce a detailed critique of the statutory framework for the enforcement of residential mortgages. It seeks to argue that the law relating to enforcement fails to meet the needs of the twenty-first century mortgage market. Rather, mortgage law is substantially affected by a remedial structure developed from medieval times, which is no longer relevant, applicable or desirable in the modern world. It is contended that the failure of the Legislature to innovate major reform ensures that the legal framework remains hopelessly outdated and needlessly fragmented. Despite the recommendations of the Law Commission, forthcoming financial services regulation, and the advent of human rights, the law as to mortgage enforcement remains securely tethered to centuries past. As regards the judiciary, the limitations of equitable intervention and the sanctity of common law principle continue to exert a restraining influence. In contrast with the law of landlord and tenant, the judiciary maintains a distorted approach to the rights and remedies of the parties entailing that undue respect is paid to the mortgagee's historical estate rights rather than to the borrower's need for home ownership. An analysis of decided cases concerning possession and sale will demonstrate the extent to which judicial creativity has been hampered by the historical development of mortgage law. In consequence, common law reform to meet the needs of a changing society has been stifled. Although the modern mortgagee is a secured creditor and simply requires mechanisms to safeguard its security interest, it continues to hold rights in relation to the mortgaged property that exceed those necessary for the enforcement of the security. It is simply unthinkable that, if the law of mortgages were to be completely remodelled, the institutional lender would be afforded those advantages that have been enjoyed over the past centuries.