If the title deed holder died, can legal heir mortgage his deed
1>Who can create equitable mortgage
An Individual or trust is financing a company. To secure loan, the lender (Individual/trust) wants to charge on an immovable asset of the company. The company is also ready to deposit title deeds of that property with the individual/trust. My question is can equitable mortgage be created in favour of an individual/trust
As I understand what you asking, can a person who inherits a property sell it to someone and carry the mortgage?
Sure. If they become the owner of the property, the bundle of rights included in “ownership” include the rights to sell, rent, or hypothecate, eg; pledge the property as collateral for a loan. (let’s not confuse the RIGHT to borrow against the property with the notion of SELLING the property and CARRYING the loan) The heir has the right to sell the property. He/she can sell it for cash, or, he/she can sell the property and agree to be “the bank” and accept payments from a buyer. That would be a nice thing to do if the heir wants a long term income stream.
I once bought a piece of property where I had rented half of a duplex for 10 months on a one year lease. 10 months in, the owner called me and said “I want to sell this property. You’ve made timely payments all this time. I own it outright. I want $300K. No bargaining. You write me a check for $30K and start making payments to me on a loan of $270K. I will be the bank. And that’s that. Want to buy it?” She DID engage a realtor, just to make sure the various disclosures and legalities were properly addressed.
As per my knowledge, Mortgage deed can be done by the title holder or power of attorney holder. It can not be done by legal heir.( in case of urban land, if village land, then the procedure is simple to transfer the property name)
In this case, you should transfer the property in legal heir’s name by doing all legal procudure completion.
I suggest you to meet your advocate in this regard and talk in details. He will guide you best option available (although it will cost you) and will be helpful in next course of action.
Equitable mortgage deed can be created.
An equitable mortgage in which the lender is secured by taking possession of all the original title documents of the property that serves as security for the mortgage. It gives the mortgagee the right to foreclose on the property, sell it, or appoint a receiver in case of nonpayment.
The biggest advantage of equitable mortgage is it doesn't attract stamp duty as it is an oral transaction. In certain states of India acts have been passed to register equitable mortgage to avoid fraudulent transactions.
n an equitable mortgage, the owner has to transfer his title deed to the lender, thereby creating a charge on the property. The owner also orally confirms the intent of creating a charge on the property. An equitable mortgage is also known as an implied or constructive mortgage. No legal procedure is involved in an equitable mortgage, but it is considered mortgage in the interest of justice (under equity). The borrower obtains money from the bank/lender with an agreement that his property, on which the equitable mortgage is created, will act as security for the loan.
The borrower has to submit his title deed to the lender as security for the money borrowed.
No formal, legal document is executed or registered in the records of the registrar, but it can be created at notified places. Stamp duty and charges are comparatively low, relative to a registered mortgage.
It is mostly created with banks and financial institutions being lenders but the said things are not mandatory. Individual should be registered money lender for advancing monies.
In an equitable mortgage, the owner has to transfer his title deed to the lender, thereby creating a charge on the property. The owner also orally confirms the intent of creating a charge on the property. An equitable mortgage is also known as an implied or constructive mortgage. No legal procedure is involved in an equitable mortgage, but it is considered mortgage in the interest of justice (under equity) . The borrower obtains money from the bank/lender with an agreement that his property, on which the equitable mortgage is created, will act as security for the loan.
The borrower has to submit his title deed to the lender as security for the money borrowed.
No formal, legal document is executed or registered in the records of the registrar, but it can be created at notified places. Stamp duty and charges are comparatively low, relative to a registered mortgage.
2>Equitable mortgage can be created at notified places. My doubt is perhaps this simple way of creating mortgage is available only when availing loan from Banks/Financial Institutions not from any individual or trust. Please clarify my doubt.1) The company should have power to borrow – any object clause as contained in the Memorandum of Association of the company
2) The Board of Directors should pass a resolution for borrowing and to mortgage the property
3) Only authorized Director/person should execute the mortgage documents
.4) Charge on the immovable property of the company is registered with the Registrar of Companies by filing E Form No.8 with the Registrar of Companies within 30 days of creation of charge.
5) equitable mortgage can be created in favour of individual
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