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Been looking into the right to redeem, and must confess that I’m confused to say the least. I sometimes struggle to explain my thoughts clearly, so bear with me please.
A Bank claims that it acted within the Law (LPA 1925) in exercising power of sale over a mentally incapacitated mortgagor’s property without a court order.
As its a basic principle of a mortgage that there must be no fetter on the mortgagor's right to redeem the mortgage and recover unencumbered enjoyment of the property by repaying in full the debt secured by the mortgage it seems (if the Bank’s claims are correct) that as the mentally incapacitated cannot redeem, that when the LPA 1925 was drafted the Statute unwittingly imposed a clog on redemption for the mentally disordered. As I understand it a clog on the equity of redemption renders a mortgage unenforceable.
I’m wondering if this could open up a can of worms if the Statute involved has made some mortgages unenforceable by imposing such a fetter?
A Bank claims that it acted within the Law (LPA 1925) in exercising power of sale over a mentally incapacitated mortgagor’s property without a court order.
As its a basic principle of a mortgage that there must be no fetter on the mortgagor's right to redeem the mortgage and recover unencumbered enjoyment of the property by repaying in full the debt secured by the mortgage it seems (if the Bank’s claims are correct) that as the mentally incapacitated cannot redeem, that when the LPA 1925 was drafted the Statute unwittingly imposed a clog on redemption for the mentally disordered. As I understand it a clog on the equity of redemption renders a mortgage unenforceable.
I’m wondering if this could open up a can of worms if the Statute involved has made some mortgages unenforceable by imposing such a fetter?
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