Enforcement of Registered & Unregistered Mortgages
Our firm is in a unique position, in that we have the capability and knowledge to enforce both registered and unregistered mortgages. Many large firms with mortgage lending departments understand how to enforce registered mortgages; however, not as many understand the requirements and nuances associated with enforcing caveats and unregistered mortgages.
The concept of an unregistered mortgage (commonly referred to as an equitable mortgage) is one that many practitioners have little of no exposure to. However, Elliott May have developed a body of precedents and expertise in enforcing equitable mortgages and have enjoyed much success to date.
In almost every case, an equitable mortgage is protected by lodgement of a caveat on title of the security property, but the mortgage itself is never actually registered. There is a common misconception that you cannot enforce an equitable mortgage because it is not registered (and hence a caveat does not actually provide you with any rights). However, this is not the case. A lender still has rights in accordance with the mortgage document executed by the borrowers and is still able to enforce those rights by seeking orders for possession via the superior courts.
