The Mortgagee's Power of Sale
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By: Clyde Croft, Robert S. Hay
The Mortgagee's Power of Sale, third edition, provides a detailed and scholarly coverage of the law and practice in relation to the mortgagee's power of sale for both Torrens Title and general Law. Clear statements of principles and legislation are detailed, and their application through the cases in practice explained. Using a transactional approach to provide the reader with an overview, together with a comprehensive treatment of each aspect of the mortgagee's sale, this work discusses issues in relation to the power becoming exercisable, the manner of its exercise and the mortgagee's duty to the mortgagor and others, priorities issues and the distribution of the proceeds of sale. User-friendly precedents of mortgagee's notices, court forms and other documents are also provided, with cross-references to the text.
AI Overview
"The Mortgagee's Power of Sale" is a legal textbook that provides a comprehensive guide to the law and practice surrounding the mortgagee's power of sale in both Torrens Title and general law systems. The book has been published in various editions, with the latest being the fourth edition.
Key Themes
Mortgage Law and Practice:
- The book covers the fundamental principles of mortgage law, including the nature of mortgages and the source of the power of sale under both general law and statutory provisions.
Conditions Precedent to Sale:
- It examines the conditions that must be met before a mortgagee can exercise their power of sale, such as default by the mortgagor.
Mortgagee's Right to Possession:
- The text discusses the mortgagee's right to possession and the methods by which possession can be recovered.
Exercise of Power of Sale:
- It provides a detailed analysis of the steps a mortgagee must take to obtain possession of and sell the land, including the mortgagee's duties during the sale process.
Mortgagor's Rights:
- The book also addresses the rights of the mortgagor, including the lodging of caveats and obtaining an injunction to prevent a sale.
Jurisdictional Differences:
- It highlights the legislative differences between state jurisdictions, which is crucial for practitioners advising clients across various jurisdictions.
Plot Summary
The book is structured to guide practitioners through the complex legal issues that arise when a mortgagor defaults under the terms of a mortgage. It sets out the common law and equitable principles as well as the statutory provisions applicable to each procedural element of a sale in a logical, transactional format. The text covers both registered and unregistered mortgages, discussing the unique issues that arise in the Torrens system and general land.
Critical Reception
The second edition of the book, authored by Clyde Croft and Jan Johansson, received positive reviews for its comprehensive coverage of relevant issues. The reviewer noted that the work would be of great assistance to practitioners, bankers, and other interested parties due to its detailed examination of the mortgagee's power of sale and the reconciliation of differences in approach between England and Australia.
Editions and Publication
- First Edition: The book originated in 1980.
- Second Edition: Published in 2004 by LexisNexis Butterworths, this edition was long overdue and provided a detailed analysis of the mortgagee's power of sale.
- Third Edition: Published in 2012, this edition continued to cover the law and practice of the mortgagee's power of sale for both Torrens Title and general law.
- Fourth Edition: The latest edition, also published by LexisNexis, provides an up-to-date, practical guide to the steps a mortgagee must take to obtain possession of and sell the land.
Overall, "The Mortgagee's Power of Sale" is a seminal work in the field of mortgage law, offering practitioners and legal professionals a comprehensive resource for navigating the complexities of mortgagee's rights and obligations.