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Exclusion of the Mortgagor s Rights to Possession

Although the Mortgagee may have an inherent right to take possession of a property, this action may be prohibited either by: -

  • The statutory right of restriction;

  • The mortgage terms which may reserve that right for the possession;

  • The express exclusion;

  • The implied inclusion;

  • The atonement clauses – whereby the Mortgagor acts as a tenant of the Mortgagee and the object here may make available to the Mortgagee additional possessory remedies open to the landlord.

The exercise of the Mortgagee’s rights to possession is in the agreement between the Mortgagor and the Mortgagee. However, the right to possession is to be exercised by the Mortgagor in all cases, except those of actual default.

There are certain factors, which inhibits or prohibits the actual exercise and execution of the Mortgagee’s rights. They are: -

  • The Mortgagee will never seek possession, unless default has already occurred;

  • The Mortgagee does not have a right to the remedy, but has an access to same;

  • Possession is only sought as the preliminary action before the Mortgagee exercises the power of sale.

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