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45782
STANDARD SECURITIES
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Mapa Mental sobre STANDARD SECURITIES, criado por mary1503 em 14-04-2013.
Mapa Mental por
mary1503
, atualizado more than 1 year ago
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Criado por
mary1503
mais de 11 anos atrás
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Resumo de Recurso
STANDARD SECURITIES
statutory form of charge
introduced by Conveyancing Fuedal Reform (Scotland) Act 1970
abolished the bond & disposition in security
& ex facie absolute disposition
replaced with one very simple and very flexible basic form of standard security
normally most valuable asset you can own
land and buildings
without a mortgage beyond means of the individual
Lord Diplock - English case Pettit v Pettit
"that we are a real property mortgaged to a building society owning democracy"
reasonably accurate statement of position in Scotland, three decades on
flexibility of 1970 Act
statute provides for social and economic changes
take place over the life of secured loan
without need of discharging loan and creating new one
allows debtor transfer - more economically viable agreement
s14 assignation of transfer of standard security
all heritable loans since 1970 Act, constituted by standard security
s3 CFR(S) A 1970
part 11 s9-32 contains law of standard security 1970 Act
standard security either in terms of schedule 2 form A or form B 1970 Act
Form A - personal obligation and details of loan are connected in standard security
widely used by building societies
whether form A or B Albatown Ltd v Credential Group Ltd
Form B - where personal obligations and details of loan are in a separate unrecorded document
widely used by banks in housing loans or commercial lenders
loans in connection with trade (garahes/breweries)
& large loans over factory/office buildings
where parties don't wish to make details public
Form B security- express assignation of secured debt required
Watson v Bogue No 1
Personal bond
Bird v HBOS
PB properly regarded as a bond of caution my/not give defenders secuirty for the loan
bond of caution was irrelevant as absence of valid standard security
Deed of Variation s16
allows for a number of variations to be made
without creditors consent
used to release one of a number of original debtors from further liability
or introduce a new debtor
utilized where a single person, owns property subject to standard security
makes over one half share of property to their partner
partner in turn agrees - undertake joint and several liability for the secured loan
creditor will want to ensure the partner is a co-debtor to the change
before consenting to the change to the original obligation
where couple break up
one of them can take over the whole of the property
assume sole respnsibilty for the loan
partner can make over their share to the first and be released from any further liability
in either situation - a suitably worded deed of variation - easily give effect to these changes in debtor
deed of restriction
s15 form c&d - allows debtor to have portion of security subjects released from secuirty
usually on payment of a substantial amount of the original loan
useful when building company, purchase land for residential developement
gives standard security to bank in security of loan, covering development costs
developed plots subsequently sold to purchasers
buidling company obtains deed of restriction for each plot when sold
purchaser takes plot free of any debts of building company
area of original security subjects will be reduced
normal for company to repay its creditor - portioned amount of proceeds of sale of plot
provides flexible way of securing the financing of the development
Discharge s17 purpose is 2 fold
1) releases debtor from continuing personal obligation to the creditor
2) releases security subjects from the burden of the standard security as a real secuirty thereon
short statutory form provided for is CFR(S) A 1970
achieves both objectives by granting of discharge, following form F of the schedule 1970 Act
recording of discharge in statutory form, the subjects are disburdened thereof
Assignation s14 (1) - duly recorded standard security may be transferred
whole or in part, by a creditor by assignation in conformity
with Form A or B schedule 4 1970 Act.
upon the tranfer being duly recorded, the security or part thereof
shall be vested in the asignee as effectually as has been granted in his favour
(2) assignation of standard security shall except where otherwise stated
deemed to convey to the grantee
all rights competent to the grantor to the writs
effect inter alia of vesting in the assignee
a) full benefit of corroborative or subtantial debt obligation or part thereof
irrespective of whether obligations are contained in any deed or arise from operation of law or other wise
b) right to recover payment from debtor of all properly incurred expenses incurred by the creditor in connection with the security
c) entitlement to the benefit of any notices served and all procedure instituted by the creditor in respect of the security
effect that the grantee may proceed as if he had originally served or instituted such notices or procedures
Notice of default
1970 Act gives creditor range of remedies
personal action, summary diligence, poinding of the ground, adjudication
removing the debtor and letting the property
Scotland generally held to be 3 roads to sale
1) calling up notice s19 1970 Act, debtor once served required to pay whole of the debt within 2 months
failure creditor has automatic power of sale
1970 Act does not state circumstances justifying the service of the notice
No problem if loan is on demand or term loan
where there is an acceleration clause which has been activated
loan agreement defines circumstances which amount to default
procedure does not need to involve any court involvement
In practice common for Creditors to obtain Action of Declarator
the right to sell has crystallised
2)Notice of default s20 and 21 1970 Act, on default creditor serves Notice of Default, stating the default
calls upon debtor to cease to be in default within one month
failing which enforcement powers emerge. Act is not clear meaning of default
default usually failure to make periodic payment s9(1)(b)
merely requires the arrears are brought up to date
3) last - road to enforced sale by s24 warrant
application by creditors to the court, stating debtor is in default, requesting permission to sell
involves the court, rather rare to use this road
procedure may be used where creditor wishes to sell, not as a result of failure to pay but because debtor is insolvent
not as expensive as it might be, since creditors can prove statutory requirements have been met
court has no discretion to refuse the warrant
missives concluded in normal way, no moveables included, disposition granted by creditors
s26 1970 Act provides on sale by creditor, property automatically disburdened of security or pari passu security
joint and several obligations and rights of relief
often taken out by joint borrowers husband/wife
jointly and severally liable
each has one half pro indivisio share burdened by the whole loan
often standard security contains " all sums due and to become due"
in such a case all future loans from the same lender will be on the same footing as the original security of the house
problems when future loans made to only one of the parties
husband/wife as co-owners grant a standard security for joint loan
thereafter the husband (only) borrows money from the same lender
loan is made out to him in name only
wife may not know of the transaction
if the new loan is covered by the standard security, it will affect both the husband and wife
usually banks/building societies expressly provide that any debt incurred at any time
by either party will be burdened by the whole property
such a style will solve any problems that may occur
but should be noticed that it still allows one of the parties to create a loan without the knowledg of the other
may be unethical to construe the ignorant party as liable for the addtional debt
position may be challenged under Unfair Terms in Consumer Contracts Regulations 1999
odd situation occurred in Christie v Armstrong
bought house in common with survivorship destination
joint loan secured on the house
also assigned life policy in Mr Christies name
Mr Christie died shortly after buying house and was intestate
Mr C's daugher confirmed as executor dative
Life assurance paid the proceeds of life policy to the lender
discharged the debt
Ms C argued whole loan repaid from fathers estate, since life policy formed part of the estate
but only half of policy proceeds should have used to repay the debt as father was only liable for half the debt
father jointly and severally liable, Ms C entitled to claim relief from Ms Armstrong
Ms C claimed repayment of one half of policy proceeds from Ms A
stained by court in principle
court held proof was necessary to establish
intentions of the deceased
could have been deceased intention to repay all
therefore, no right of relief in circumstances
Royal Bank v Wilson
acknowledge bank failed on number of issues
1) where joint and several obligations, defaults/calling up notices must be served on all debtors
individually in addition to a letter addressed to the occupier
where borrowers have separated only one remains living in security subjects
party may continue to pay the mortgage payements
may wish to claim relief from non-paying party
non-paying party claims implied understanding
relief would not be claimed in this situation
as an implied term of the agreement to move out
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