MORTGAGES DECREE, 1972 (NRCD 96)
As amended
ARRANGEMENT OF SECTIONS
Section
PART I—GENERAL PROVISIONS
1. Nature of a mortgage
2. Decree to govern all mortgages
3. Mortgages evidenced by writing
PART II—EFFECT OF A MORTGAGE
4. Extent of mortgaged property
5. Acts secured by mortgage
6. Personal liability of
mortgagor
7. Mortgage to more than one
person
8. Implied covenants on creation
of mortgage
9. Implied covenants joint and
several
10. Right to title documents
11. Insurance
12. Transfer by mortgagor
13. Transfer by mortgagee
14. Illegal, void and voidable
transactions
15. Remedies of mortgagee on
default
16. Appointment of receiver on
default
17. Mortgagee in possession
18. Judicial sale
19. Priorities
20. Methods of redemption
21. Judicial sale in lieu of
redemption
22. Discharge receipts
PART III—MISCELLANEOUS
23. Model precedents
24. Interpretation
25. Application
26. Commencement.
SCHEDULES
First Schedule—Implied covenants
Part I—Implied covenants by
mortgagor
Part II—Implied covenants by
mortgagor or leasehold property
Second Schedule—Model precedents
MORTGAGES DECREE, 1972
IN pursuance of the National
Redemption Council (Establishment)
Proclamation, 1972, this Decree is
hereby made:
PART I—GENERAL PROVISIONS
Section 1—Nature of a Mortgage.
(1) A mortgage for the purposes of
this Decree is a contract charging
immovable property as security for
the due repayment of debt and any
interest accruing thereon or for
the performance of some other
obligation for which it is given,
in accordance with the terms of
the contract.
(2) A mortgage shall be an
encumbrance on the property
charged, and shall not, except as
provided by this Decree, operate
so as to change the ownership,
right to possession or other
interest (whether present or
future) in the property charged.
(3) A mortgage may be created in
any interest in immovable property
which is alienable.
Section 2—Decree to Govern all
Mortgages.
A
mortgage of immovable property
shall only be capable of being
effected in accordance with the
provisions of this Decree, and
every transaction which is in
substance a mortgage of immovable
property, whether expressed as a
mortgage, charge, pledge of title
documents, outright conveyance,
trust for sale on condition,
lease, hire-purchase, conditional
sale, sale with right of
repurchase or in any other manner,
shall be deemed to be a mortgage
of immovable property and shall be
governed by this Decree.
Section 3—Mortgages Evidenced by
Writing.
(1) No mortgage shall be
enforceable unless—
(a) it is evidenced by a writing
signed by the mortgagor or by his
agent authorised in writing to
sign on his behalf; or
(b) it is excused from the
necessity of a writing by the
operation of the rules of equity
including the rules relating to
fraud, duress, hardship,
unconscionability and part
performance; or
(c) it is excused from the
necessity of a writing by any
enactment, in the case of a
customary law transaction.
(2) Every writing evidencing a
mortgage shall be deemed to be an
instrument which may be registered
in accordance with the Land
Registry Act, 1962 (Act 122).
(3) A registrar empowered to
register instruments in accordance
with the Land Registry Act, 1962
(Act 122) may, in addition to any
power given to him by that Act,
refuse to register any writing
evidencing a mortgage unless the
writing—
(a) states the name and address of
each mortgagor and each mortgagee;
(b) states the nature of the
mortgagor's interest in the
property which is mortgaged and
the extent to which that interest
is subject to the mortgage;
(c) identifies the mortgaged
property by reference to its
location and boundaries (which may
be by reference to an official
plan) or to a previously
registered writing describing the
same property;
(d) where the mortgage secures the
payment of money, states the date
on which payment is due and states
the principal sum lent or to be
lent or if the sum to be lent is
indeterminate the writing so
states, and if further advances
are to be made and secured by the
mortgage the writing so states.
(4) Every writing evidencing the
transfer or encumbrance of a
mortgage or any interest in a
mortgage shall be deemed to be an
instrument which may be registered
in accordance with the Land
Registry Act, 1962 (Act 122).
(5) Every writing evidencing a
discharge of a mortgage or any
part of a mortgage in accordance
with section 22 shall be deemed to
be an instrument which may be
registered in accordance with the
Land Registry Act, 1962 (Act 122),
and such a writing shall be
registered without payment of
stamp duty.
PART II—EFFECT OF A MORTGAGE
Section 4—Extent of Mortgaged
Property.
(1) Every mortgage is effectual to
create a charge upon all interests
and rights which the mortgagor has
in the property mortgaged, or
which he enjoys as an incident of
his interest in the mortgaged
property.
(2) Subsection (1) shall apply
only if and as far as a contrary
intention does not appear
expressly or by necessary
implication, and shall have effect
subject to the provisions of the
mortgage.
Section 5—Acts Secured by
Mortgage.
Unless a contrary intention
appears expressly, a mortgage
shall be security only for the
performance of the act or acts
provided in the mortgage and not
for any performance promised in
any past or future contract.
Section 6—Personal Liability of
Mortgagor.
Unless a contrary intention
appears expressly or by necessary
implication, the mortgagor shall
be personally liable, as well as
liable on the mortgage security,
for the performance of the act or
acts secured by the mortgage.
Section 7—Mortgage to More than
One Person.
(1) Unless a contrary intention
appears expressly or by necessary
implication, a mortgage made to
two or more mortgagees or
transferred to two or more
transferees or securing
performance to two or more
obligees shall, as against the
mortgagor or obligor or any person
deriving an interest through the
mortgagor or obligor and without
prejudice to the rights of the
mortgagees, transferees or
obligees among themselves, be
deemed to be made to the
mortgagees or transferred to the
transferees or secured to the
obligees as joint holders with
right of survivorship.
(2) Subsection (1) of this section
shall apply notwithstanding any
notice to the mortgagor or obligor
or person deriving an interest
through either or both of them of
a severance of the joint holding
after the mortgage.
Section 8—Implied Covenants on
Creation of Mortgage.
Unless a contrary intention
appears expressly or by necessary
implication, there shall be
implied the covenants relating to
the right to mortgage, quiet
enjoyment, freedom from
encumbrances, further assurance,
maintenance, repairs and
protection of the mortgage
security in the terms set out in
Part I of the First Schedule; and
where the mortgaged property
includes a leasehold as to that
leasehold there shall be implied
the further covenants relating to
validity and past and future
observance of the lease in the
terms set out in Part II of the
First Schedule.
Section 9—Implied Covenants Joint
and Several.
Unless a contrary intention
appears expressly or by necessary
implication, in a mortgage or
transfer of a mortgage where two
or more persons are expressed to
mortgage or transfer or to join as
covenantors, an implied covenant
on their part shall be deemed to
be a joint and several covenant by
them; and where there are two or
more mortgagees or transferees an
implied covenant with them shall
be deemed to be a covenant with
them jointly unless the
performance secured by the
mortgage is secured to them in
shares or distinct sums, in which
case the implied covenant shall be
deemed to be a covenant with each
in respect of the share or
distinct sum secured to him.
Section 10—Right to Title
Documents.
(1) Unless a contrary intention
appears expressly or by necessary
implication, as against the
mortgagor the prior mortgagee
shall be entitled to possession of
all of the mortgagor's title
documents which relate exclusively
to the mortgaged property.
(2) Unless a contrary intention
appears expressly or by necessary
implication, where during the life
of the mortgage the mortgagor
becomes entitled to possess any
title document relating
exclusively to the mortgaged
property it shall be the duty of
the mortgagor to deliver that
document to the then prior
mortgagee.
(3) A mortgagee having possession
of a mortgagor's title documents
shall keep them whole, uncancelled
and undefaced and shall be liable
in an action for damages for any
wilful or negligent failure so to
do, and shall deliver them upon
timely performance of the act or
acts secured by the mortgage or
upon redemption to the then prior
mortgagee, and if there be no
mortgagee then to the mortgagor or
person succeeding to title through
the mortgagor.
(4) Where the mortgagee has
possession of title documents, the
mortgagor at any reasonable time,
on his request and at his own
expense, shall be entitled in
person or through an agent to
inspect and make copies or
extracts from any such document.
Section 11—Insurance.
(1) Both the mortgagor and the
mortgagee have an insurable
interest in the mortgaged
property.
(2) Unless a contrary intention
appears expressly or by necessary
implication, where the mortgagor
has covenanted to insure all or
any part of the mortgaged property
and fails to do so as required by
the terms of the mortgage, the
mortgagee shall be entitled, after
giving notice in writing to the
mortgagor, to insure and keep
insured the mortgaged property
against loss or damage by theft,
fire, earthquake or other natural
disaster; and the premiums paid by
the mortgagee for any such
insurance shall be secured with
the same priority as the mortgage
and, where the mortgage secures
payment of money, shall be added
to the principal sum with interest
at the same rate as on the
principal sum.
(3) Unless a contrary intention
appears expressly or by necessary
implication, where the mortgagor
has covenanted to insure all or
any part of the mortgaged property
and the insurance has been
effected by the mortgagor, or on
behalf of the mortgagor by the
mortgagee, all money received on
such insurance shall be applied in
making good the loss or damage in
respect of which the money is
received unless the mortgagor
elects to apply all or part of it
toward the performance of the act
or acts secured by the mortgage.
Section 12—Transfer by Mortgagor.
(1) Unless a contrary intention
appears expressly or by necessary
implication, a mortgagor may
transfer all or any part of his
interest in the mortgaged property
at any time without the
concurrence of the mortgagee.
(2) The transfer of all or any
part of his interest in the
mortgaged property shall not
relieve the mortgagor of his
personal liability on any covenant
in the mortgage.
(3) In a transfer of a mortgage
from a mortgagor for valuable
consideration, unless a contrary
intention appears expressly or by
necessary implication, the
transferee shall be deemed to have
covenanted to indemnify the
mortgagor's personal liability on
any covenant in the mortgage.
(4) Unless a contrary intention
appears expressly or by necessary
implication, it shall be implied
that the mortgagor covenants to
give notice to the mortgagee of
any transfer of all or any part of
the mortgagor's interest in the
mortgaged property by the
mortgagor subsequent to the
mortgage:
Provided that notwithstanding any
provision to the contrary, failure
to give such notice shall not
invalidate the transfer.
(5) In this section, a transfer
includes a sale, lease,
encumbrance or other disposition.
Section 12A—Mortgagor's Right to
Transfer Restricted.
A
mortgagor under a mortgage to
which this Decree applies shall
not transfer any interest in the
mortgaged property under section
12 of the Mortgages Decree, 1972 (NRCD
96) without the consent in writing
of the mortgagee.[Inserted and to
be cited as National Mortgages,
Financing and Guarantee Scheme
Decree, 1976 (SMCD 23), s.32]
Section 13—Transfer by Mortgagee.
(1) A mortgagee may transfer all
or any part of his interest in the
mortgage at any time without the
concurrence of the mortgagor, so
however that any transfer shall be
void and of no effect if it
purports to make any disposition
of the mortgagee's interest in the
mortgaged property without making
the same disposition of the right
to performance of the act or acts
secured by the mortgage.
(2) Unless a contrary intention
appears expressly or by necessary
implication, a transfer of a
mortgage by a mortgagee operates
to transfer the entire interest of
the mortgagee to the transferee,
including—
(a) the right to demand, sue for,
recover and give receipts for
performance of the act or acts
secured by the mortgage, including
performance then due or becoming
due thereafter; and
(b) the benefit of all securities
for performance including
collateral securities, and the
benefit of and right to sue on all
covenants with the mortgagee and
the right to exercise all powers
of the mortgagee.
(3) In this section, a transfer
includes a sale, lease,
encumbrance or other disposition.
Section 14—Illegal, Void and
Voidable Transactions.
(1) Where the performance of an
act or acts secured by the
mortgage is illegal, or derives
from a contract which is illegal,
the mortgage shall to that extent
not be enforceable, so however
that a court may order the return
of title documents or the removal
of any clog on the title to the
mortgaged property.
(2) Where the performance of an
act or acts secured by the
mortgage derives from a contract
which is void or voidable at the
mortgagor's option, the mortgage
shall to that extent not be
enforceable, so however that a
court may order restitution as a
condition to the return of title
documents or the removal of any
clog on the title to the mortgaged
property.
Section 15—Remedies of Mortgagee
on Default.
Upon failure of performance of an
act or acts secured by the
mortgage the mortgagee may do
either or both of the following:—
(a) sue the mortgagor or obligor
or both on any personal covenant
to perform;
(b) realise his security in the
mortgaged property in all or any
of the ways provided in this Part,
and in no other way
notwithstanding any provision to
the contrary in the mortgage.
Section 15A—Section 15 of NRCD 96
Modified.
Subject to the provisions of this
Decree upon failure of performance
of an act or acts secured by a
mortgage to which this Decree
applies the mortgagee may exercise
all or any of the rights referred
to in section 15 of the Mortgages
Decree, 1972 or conferred by this
Decree and accordingly the words
"and in no other way
notwithstanding any provision to
the contrary in the mortgage"
appearing in paragraph (b) of the
said section shall not apply to a
mortgage to which this Decree
applies.[Inserted and to be cited
as National Mortgages, Financing
and Guarantee Scheme Decree, 1976
(SMCD 23), s.30]
Section 16—Appointment of Receiver
on Default.
(1) Upon failure of performance of
an act or acts secured by the
mortgage the mortgagee may apply
to the court for the appointment
of a receiver, and unless the
court is satisfied that no grounds
exist for the appointment of a
receiver the court shall appoint a
receiver.
(2) The court may empower a
receiver appointed under this
section to take possession of the
mortgaged property, to collect by
demand, action in the name of the
mortgagor or mortgagee, or
otherwise all income including
arrears accruing from the
mortgaged property, to give valid
receipts for all income collected,
and to do any other act necessary
or proper to manage the property
including the making of repairs
and improvements, so however that
no such repair or improvement
shall bind the mortgagor,
mortgagee or property until
approved by the court.
(3) A receiver appointed under
this section shall be liable to
account at any time ordered by the
court.
(4) A receiver appointed under
this section shall be entitled to
retain out of money received by
him, for his remuneration, and in
satisfaction of all costs, charges
and expenses incurred by him as
receiver, a fee or commission at
such rate as the court in its
discretion determines.
(5) Unless otherwise directed by
the court, a receiver appointed
under this section shall apply all
income received by him from the
property as follows and in the
order listed:—
(a) in discharge of all rents,
taxes, rates and other required
outgoings affecting the mortgaged
property;
(b) in payment of annual sums or
other payments, and the interest
on all principal sums, due and
having priority to the mortgage in
right whereof he is receiver;
(c) in payment of his fee or
commission, and of the premiums of
insurance payable in accordance
with the mortgage and the cost of
effecting necessary repairs;
(d) in payment of all interest
accruing due in respect of any
principal money due under the
mortgage;
(e) in or towards the discharge of
any principal money due under the
mortgage;
and shall pay the residue, if any,
to the person who, but for the
possession of the receiver, would
have been entitled to receive the
income or who is otherwise
entitled to the mortgaged
property.
(6) Any provision in a mortgage
authorising the appointment of a
receiver upon failure of
performance of an act or acts
secured by the mortgage other than
as provided in this section shall
be void and of no effect.
Section 17—Mortgagee in
Possession.
(1) Upon failure of performance of
an act or acts secured by the
mortgage the mortgagee shall be
entitled, as against the mortgagor
and any person deriving an
interest in the mortgaged property
through him whose interest is
subsequent to that of the
mortgagee, to possession of the
mortgaged property, except that in
the case of default in the payment
of principal or interest secured
by the mortgage, the mortgagee's
right to possession may be
exercised only after thirty days'
notice in writing to the mortgagor
or such longer period as the
mortgage may provide.
(2) A mortgagee entitled to
possession under this section
shall be entitled—
(a) to enter and take possession
of the mortgaged property if that
may be done peaceably, or
(b) to assert his right to
possession by an action for
possession.
(3) A mortgagee in possession
shall be liable to account to the
mortgagor for any income, whether
in cash or in kind, derived from
the mortgaged property which he
has received or without wilful
default might have received from
the time of taking possession, and
to pay over to the mortgagor any
excess on the amounts due on the
mortgage.
(4) In accounting under this
section the mortgagee in
possession shall be liable for any
failure to be diligent in
realising any sum due to the
mortgagee from the mortgaged
property.
(5) In accounting under this
section the mortgagee in
possession shall be liable at the
fair market value for his own
occupation rent if he occupies all
or part of the mortgaged property.
(6) In accounting under this
section the mortgagee in
possession shall be liable for any
unreasonable injury to or neglect
of mortgaged property caused by
his wilful or negligent act or
omission.
(7) In accounting under this
section the mortgagee in
possession shall not be entitled
to any compensation for personally
managing the mortgaged property.
(8) In accounting under this
section the mortgagee in
possession shall be allowed the
cost of any reasonable repairs or
improvements made to protect the
value of the mortgaged property or
to maintain or increase the income
from the mortgaged property; and
to the extent that any such sums
exceed the income from the
mortgaged property they shall be
secured with the same priority as
the mortgage and where the
mortgage secures the payment of
money shall be added to the
principal sum with interest at the
same rate as on the principal sum.
(9) A mortgagee in possession
shall have power from the date of
his possession to collect by
action or otherwise any income
from the mortgaged property,
including arrears to which he
would have been entitled had he
owned the mortgaged property since
the date of the mortgage.
(10) A mortgagee in possession,
unless he otherwise agrees, is not
bound by any lease, profit or
licence entered into by the
mortgagor subsequent to the
mortgage unless the tenant, profit
holder or licensee took his
interest as a purchaser for value
without notice of the mortgage.
(11) A mortgagee in possession
shall be entitled to transfer all
or any part of his interest in the
mortgaged property, including his
right to possession, as provided
in section 13.
Section 18—Judicial Sale.
(1) Upon failure of performance of
an act or acts secured by the
mortgage the mortgagee may apply
to the court for an order for the
judicial sale of the mortgaged
property, and upon being satisfied
as to the existence of grounds for
the application the court shall,
upon such conditions as it deems
just and equitable, grant an order
for judicial sale of all or part
of the mortgaged property.
(2) In considering what conditions
if any to attach to an order for
judicial sale the court shall have
regard to what opportunity if any
the mortgagee has afforded to the
mortgagor or obligor or both to
remedy the failure of performance.
(3) A judicial sale ordered under
this section shall be by public
auction unless the mortgagor and
all encumbrancers subsequent to
the mortgagee requesting the
judicial sale and of whom he has
notice at the time of the sale
agree to a private sale and the
terms of the sale are approved by
the court.
(4) Prior to a judicial sale
ordered under this section the
mortgagee requesting the judicial
sale shall give reasonable notice
of the sale to the mortgagor and
every encumbrancer of whom he has
notice.
(5) Failure to give such
reasonable notice shall not affect
the judicial sale but shall render
the mortgagee personally liable
for any loss caused thereby.
(6) Neither the mortgagor nor any
encumbrancer, including the
mortgagee who requested the
judicial sale and any mortgagee
prior or subsequent to him, shall
be precluded from purchasing the
mortgaged property at a judicial
sale ordered under this section:
Provided that a purchase by the
mortgagee who requested the
judicial sale or his nominee shall
not take effect until approved by
the court.
(7) The court ordering the
judicial sale may make any order
for conveyance, or vesting order,
proper for giving effect to the
sale, and the court may authorise
the registrar or other officer of
the court to execute on behalf of
the mortgagor and the mortgagee
who requested the judicial sale, a
conveyance granting the interests
of the mortgagor and mortgagee in
the mortgaged property to the
purchaser at the judicial sale.
(8) The purchaser at a judicial
sale ordered under this section
shall take title to the mortgaged
property free of all interests to
which the mortgage of the
mortgagee who requested the
judicial sale has priority, and
free of that mortgage, but subject
to all interests which have
priority to that mortgage, and
shall be entitled as against any
person to all title documents
relating exclusively to the
mortgaged property other than
those title documents held by a
person with an interest having
priority to the mortgage of the
mortgagee who requested the
judicial sale.
(9) Notwithstanding any provision
to the contrary in the mortgage a
judicial sale ordered under this
section shall be the only manner
in which a mortgagee may foreclose
rights to redeem the mortgaged
property.
(10) The proceeds from a judicial
sale ordered under this section
shall, as the court directs,
either be deposited in court for
distribution as ordered by the
court or shall be held in trust
for distribution by the mortgagee
who requested the judicial sale.
(11) Proceeds from a judicial sale
shall be distributed first, in
payment of all expenses properly
incurred as incident to the
judicial sale or any prior
attempted judicial sale, secondly,
in payment of all sums secured by
the mortgage or with the same
priority as the mortgage, thirdly,
in payment in the order of
priority of any encumbrances
subsequent to that of the
mortgagee who requested the
judicial sale, and the residue to
the mortgagor or his successors in
interest.
(12) Where a mortgagee holding in
trust for distribution proceeds
from a judicial sale ordered under
this section is in doubt as to the
proper distribution of all or part
of those proceeds he may apply to
the court for direction and may if
the court so orders deposit the
proceeds in court.
(13) The title of a purchaser at a
judicial sale ordered under this
section shall not be impeachable
on the ground that the order for
the judicial sale was improperly
or irregularly ordered.
(14) Any sale ordered by the court
under this section shall not take
place until the expiration of
thirty days after the date of the
order.
Section 19—Priorities.
(1) Except as otherwise provided
by this or any other enactment or
by express agreement among
encumbrancers, priorities among
encumbrances shall be in order of
time, the first encumbrance in
time having priority, subject to
the operation of the rules of
equity including the rules
concerning fraud, estoppel for
gross negligence or otherwise,
purchasers for valuable
consideration without notice of
prior interests and the priority
of legal over equitable interests
where equities are equal.
(2) For the purposes of this
section, including application of
the rules of equity, notice may be
actual or constructive; and a
purchaser shall be deemed to have
constructive notice of any fact
which would have been disclosed by
a reasonable inquiry as to:—
(a) the possession and contents of
title documents,
(b) the title to the property back
to a good root of title more than
20 years old; and
(c) the rights of any person
occupying the property.
(3) In determining priority among
mortgages no tacking shall be
allowed, except that a mortgage
expressed to secure further
advances shall have priority to
the full extent of the advances
secured over any subsequent
encumbrancer unless that
encumbrancer was a purchaser for
valuable consideration without
notice of the prior mortgage.
(4) In determining priorities
among encumbrances there shall be
no consolidation of encumbrances
so that a mortgagor seeking to
redeem any one mortgage shall be
entitled to do so without
performing any act secured by any
separate mortgage made by him or
by any person through whom he
claims, solely on the property
mortgaged by the mortgage which he
seeks to redeem.
(5) In determining the incidence
of obligations secured by mortgage
the rules of equity relating to
contribution, exoneration and
marshalling shall apply.
Section 20—Methods of Redemption.
(1) Any person entitled to redeem
mortgaged property may redeem by—
(a) performing all of the acts
secured by the mortgage which have
yet to be performed; and
(b) compensating the mortgagee by
payment of interest, costs and
other expenses due in respect of
any failure to have timely
performance of the acts secured by
the mortgage.
(2) A tender of performance and
compensation sufficient to redeem
the mortgaged property shall, if
refused by the mortgagee, have the
effect of relieving the person
offering to redeem from any
obligation to pay compensation for
any further delay in performance
of the acts secured by the
mortgage.
(3) Redemption may, but need not,
be by an action for redemption.
Section 21—Judicial Sale in Lieu
of Redemption.
Any person entitled to redeem
mortgaged property may have an
order for judicial sale instead of
an order for redemption in an
action brought by him either for
redemption alone, or for judicial
sale alone or for judicial sale or
redemption in the alternative.
Section 21A—Section 21 of NRCD 96
Disapplied.
Section 21 of the Mortgages
Decree, 1972 (NRCD 96) shall not
apply to any mortgage to which
this Decree applies.[Inserted and
to be cited as National Mortgages,
Financing and Guarantee Scheme
Decree, 1976 (SMCD 23), s.31]
Section 22—Written Discharge.
(1) A mortgage shall be redeemed
upon acceptance of a tender of
performance and compensation under
section 20 or upon an order for
redemption; but a person who
redeems shall be entitled to
require the mortgagee to issue a
written discharge.
(2) Where a written discharge is
issued to a person other than the
mortgagor or the successor to his
entire interest in the mortgaged
property, it shall operate as a
transfer of the mortgagee's
interest in the mortgage.
(3) In a written discharge given
under this section the same
covenants shall be implied as if
the person who executes the
discharge had been expressed to
transfer as mortgagee subject to
any interest prior to the
mortgage.
PART III—MISCELLANEOUS
Section 23—Model Precedents.
Instruments in the form of the
model precedents contained in the
Second Schedule, or in similar
form or using expressions to a
similar effect, shall, in regard
to form and expression, be
sufficient.
Section 24—Interpretation.
(1) In this Decree, unless the
context otherwise requires—
"encumbrance" includes a mortgage,
a lien and a charge;
"encumbrancer"
includes any person entitled to
the benefit of an encumbrance;
"mortgagee" includes any person
from time to time deriving title
through the original mortgagee;
"mortgagor" includes any person
from time to time deriving title
through the original mortgagor or
entitled to redeem a mortgage
according to his interest in the
mortgaged property;
"purchaser" means a purchaser in
good faith for valuable
consideration and includes a
lessee or mortgagee who acquires
an interest for valuable
consideration.
(2) In this Decree—
(a) a reference to a prior
mortgage or encumbrance is a
reference to one that ranks in
priority above another mortgage or
encumbrance on the same property;
(b) a reference to a subsequent
mortgage or encumbrance is a
reference to one that ranks in
priority below another mortgage or
encumbrance on the same property.
Section 25—Application.
This Decree shall apply to all
mortgages created after the
commencement of this Decree.
Section 25A—Mortgages Decree to
Apply except where otherwise
Provided.
Except as otherwise provided in
this Decree the Mortgages Decree,
1972 (NRCD 96) shall apply to a
mortgage under this
Decree.[Inserted and to be cited
as National Mortgages, Financing
and Guarantee Scheme Decree, 1976
(SMCD 23), s.36]
Section 26—Commencement.
This Decree shall come into force
on the 1st day of January, 1973.
FIRST SCHEDULE
(Section 8)
IMPLIED COVENANTS
PART I— IMPLIED COVENANTS BY
MORTGAGOR
There shall be implied the
following covenants by the
mortgagor:—
1. That the mortgagor alone, or
with the consent or concurrence of
all other persons whose consent or
concurrence is required, has full
power to mortgage the property
expressed to be mortgaged by him
in the manner in which it is
expressed to be mortgaged.
2. That if either or both the
mortgagee and persons deriving
title through the mortgagee
lawfully enter into possession of
the mortgaged property, the
mortgagor and every person
concurring in the mortgage by his
direction and every person
deriving title through the
mortgagor (other than a person
having an interest to which the
mortgage is expressly made
subject) shall not interfere with,
interrupt or disturb the lawful
possession of such person in
possession.
3. That the mortgaged property is
freed and discharged from, or
otherwise by the mortgagor
sufficiently indemnified against,
all interests, encumbrances,
claims and demands whatsoever,
other than those to which the
mortgage is expressly made
subject.
4. That the mortgagor and every
person concurring in the mortgage
by his direction, and every person
deriving title through any of
them, and every other person
having or rightfully claiming any
interest in the mortgaged property
other than an interest to which
the mortgage is expressly made
subject will, from time to time
and at all times on the request of
the mortgagee or any person
deriving title through him,
execute and do all such lawful
assurances and things for further
or more perfectly assuring the
title to the security interest as
such person may reasonably
request, the expenses in respect
of this covenant to be borne by
the mortgagor during the life of
the mortgage and thereafter by the
person making the request.
5. That the mortgagor and every
person deriving an interest
through the mortgagor, other than
a person having an interest to
which the mortgage is expressly
made subject, will at all times
during the life of the mortgage
preserve, protect, repair and
maintain the mortgaged property so
as not to diminish its value below
what is reasonably required as
security for the performance of
any act secured by the mortgage
but which has yet to be performed.
PART II—IMPLIED COVENANTS BY
MORTGAGOR OR LEASEHOLD PROPERTY
There shall be implied the
following covenants by the
mortgagor:—
1. That the lease is at the date
of the mortgage a good, valid and
effectual lease of the mortgaged
property and is in full force,
unforfeited and unsurrendered, and
has not become void or voidable.
2. That all the rents reserved by,
and all the covenants, conditions
and agreements contained in, the
lease and to be paid, observed or
performed by the mortgagor and
persons deriving title through him
have been paid, observed and
performed up to the time of the
mortgage.
3. That the mortgagor, or the
person deriving title through him,
will at all times during the
continuance in force of the
mortgage pay, observe and perform
or cause to be paid, observed and
performed, all rents reserved by
the lease and all covenants,
conditions and agreements
contained in the lease, which he
or they are bound to pay, observe
and perform.
SECOND SCHEDULE
(Section 23)
MODEL PRECEDENTS
FORM I—FORM OF MORTGAGE
THIS MORTGAGE is made the 1st day
of January, 1974 between the
mortgagor JOHN MENSAH of 1,
Adabraka Road, Accra in the
Eastern Region of Ghana and the
mortgagee PHILIP ARCHER of
Cantonments Hill, Accra aforesaid.
1. By a conveyance made the 1st
day of June, 1965 between James
Bruce of Accra and the mortgagor
(registered number 6543/65) the
property known as James Fort,
Accra (hereinafter called "the
property") was conveyed to the
mortgagor for ever.
2. In consideration of the sum of
five thousand cedis (¢5,000) now
paid by the mortgagee to the
mortgagor (the receipt of which
the mortgagor hereby
acknowledges), the mortgagor
covenants with the mortgagee to
pay [here state the terms for
repayment of principal and
interest].
3. The mortgagor hereby mortgages
the property to the mortgagee to
secure payment of the principal
money, interest and other money
hereby covenanted to be paid by
the mortgagor.
4. [Add covenant to insure
buildings and any other provisions
desired]
5. The property consists of a
house and land bounded
[description of boundaries] and is
indicated by the colour red on the
plan attached to the
aforementioned conveyance which
shows the relevant measurements.
.........................................
Signed by JOHN MENSAH
in the presence of:
.........................................
Signed by PHILIP ARCHER
in the presence of:
Customary Loan Transactions to be
in Accordance with Mortgages
Decree.
Every customary loan transaction
in respect of which any farmland
is given as security for a loan
shall be made in accordance with
the Mortgages Decree, 1972 (N.R.C.D.
96).[As inserted by Mortages
(Amendment) Decree, 1979 (AFRCD
37)].
Existing Transactions.
Where at the commencement of this
Decree any agricultural farmland
stands as security for a loan
under any customary loan
transaction whether or not
recorded in writing, such
transaction shall forthwith be and
is hereby converted into a
mortgage under the Mortgages
Decree, 1972 (N.R.C.D. 96) and
accordingly all the provisions of
that Decree shall apply to such
transaction as far as may be
necessary.[As inserted by Mortages
(Amendment) Decree, 1979 (AFRCD
37)].
FORM II—FORM OF TRANSFER OF
MORTGAGE
THIS TRANSFER OF MORTGAGE is made
the 1st day of June, 1974 between
the transferor PHILIP ARCHER of
Cantonments Hill, Accra in the
Eastern Region of Ghana and the
transferee WILLIAM ARCHER of 99,
Marine Drive, Accra aforesaid.
1. This Transfer is supplemental
to a mortgage made the 1st day of
January, 1974 between John Mensah
of Accra and the transferor
(registered number 100/74) upon
the property known as James Fort,
Accra.
2. In consideration of the sums of
four thousand cedis (¢4,000) and
five hundred cedis (¢500) now paid
by the transferee to the
transferor, being the respective
amounts of the principal money and
interest now owing in respect of
the said mortgage (the receipt of
which sums the transferor hereby
acknowledges), the transferor
hereby transfers to the transferee
the benefit of the said mortgage
and all his rights thereunder.
......................................
Signed by PHILIP ARCHER
in the presence o
........................................
Signed by WILLIAM ARCHER
in the presence of:
FORM III—FORM OF DISCHARGE OF
MORTGAGE
THIS DISCHARGE OF MORTGAGE is made
the 1st day of January, 1980 by
WILLIAM ARCHER of 99, Marine
Drive, Accra in the Eastern Region
of Ghana.
1. This Discharge is supplemental
to a mortgage made the 1st day of
January, 1974 between John Mensah
of Accra and Philip Archer of
Accra (registered number 100/74)
upon the property known as James
Fort, Accra, and to a transfer of
the said mortgage made the 1st day
of June, 1974 between the
aforesaid Philip Archer and myself
(registered number 250/74).
2. I, William Archer of Accra
hereby acknowledge that I have
this 1st day of January, 1980
received the sum of one hundred
cedis (¢100) representing the
balance remaining owing in respect
of the principal money secured by
the said mortgage together with
all interest and costs.
3. The property is accordingly
discharged from the said mortgage.
.........................................
Signed by WILLIAM ARCHER
in the presence of:
Made this 4th day of August, 1972.
COLONEL I. K. ACHEAMPONG
Chairman of the National
Redemption Council
Date of Gazette Notification: 18th
August, 1972.
amended
by
NATIONAL MORTGAGE, FINANCING AND
GUARANTEE SCHEME DECREE, 1976 (SMCD
23).1
MORTGAGES (AMENDMENT) DECREE, 1979
(AFRCD 37)2 |