GSL Conveyancing & Drafting study materials
GSL Conveyancing & Drafting study resources

GSL Conveyancing & Drafting: Mortgages, Charges and Lender Requirements

GSL Conveyancing & Drafting · Work through your exam, one topic at a time.

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Mortgages, Charges and Lender Requirements

This domain tests how a mortgage or charge is created, protected and released, and how the lender's instructions shape the conveyancing timetable.

Creation and priority

  • A legal mortgage of registered land takes effect as a registered charge and must be completed by registration (s.27(2)(f) LRA 2002).
  • For unregistered land, a charge by deed by way of legal mortgage (s.87 LPA 1925) is protected as a Class C(i) puisne mortgage.
  • Registered charges rank in order of registration, not creation; an unregistered charge ranks behind a registered disposition for value.

Lender requirements

  • The mortgage offer and part 2 requirements govern: title quality (absolute or good leasehold), restrictions requiring consent, adequate lease term, and buildings insurance.
  • The retainer includes reporting on title and certifying at completion; the certificate of title is a representation to the lender.
  • Prior charges must be redeemed and discharged at completion using DS1 for a whole charge, DS3 for part.
  • Lenders commonly require notice of the transfer and of the new charge, and a deed of postponement where a family charge ranks ahead.

Acting for lender and borrower

Conflict can arise where the lender requires joint tenants but the borrowers want a tenancy in common, or where the property also secures a third party's debt. Disclose, obtain informed consent, or decline.

Remedies

On default the lender may sue on the covenant, take possession (with a court order for residential property), appoint a receiver, or sell under s.101 LPA 1925 once the power has arisen and become exercisable after notice under s.103.

Worked example

A buyer's solicitor searches the register and finds the seller's charge and a restriction in favour of a relative who lent the deposit. Completion needs a DS1 from the seller's lender and either the relative's written consent or evidence the loan is repaid; otherwise funds cannot safely be released and the buyer's own lender will not complete.

Traps

  • Assuming a charge is effective before it is registered.
  • Failing to check part 2 of the offer before exchange.
  • Acting for lender and borrower where an unrepresented partner may be under influence, without Etridge-compliant independent advice.