87 Charges by way of legal mortgage.E+W
(1)Where a legal mortgage of land is created by a charge by deed expressed to be by way of legal mortgage, the mortgagee shall have the same protection, powers and remedies (including the right to take proceedings to obtain possession from the occupiers and the persons in receipt of rents and profits, or any of them) as if—
(a)where the mortgage is a mortgage of an estate in fee simple, a mortgage term for three thousand years without impeachment of waste had been thereby created in favour of the mortgagee; and
(b)where the mortgage is a mortgage of a term of years absolute, a sub-term less by one day than the term vested in the mortgagor had been thereby created in favour of the mortgagee.
(2)Where an estate vested in a mortgagee immediately before the commencement of this Act has by virtue of this Act been converted into a term of years absolute or sub-term, the mortgagee may, by a declaration in writing to that effect signed by him, convert the mortgage into a charge by way of legal mortgage, and in that case the mortgage term shall be extinguished in the inheritance or in the head term as the case may be, and the mortgagee shall have the same protection, powers and remedies (including the right to take proceedings to obtain possession from the occupiers and the persons in receipt of rents and profits or any of them) as if the mortgage term or sub-term had remained subsisting.
The power conferred by this subsection may be exercised by a mortgagee notwithstanding that he is a trustee or personal representative.
(3)Such declaration shall not affect the priority of the mortgagee or his right to retain possession of documents, nor affect his title to or right over any fixtures or chattels personal comprised in the mortgage.
[F1(4)Subsection (1) of this section shall not be taken to be affected by section 23(1)(a) of the Land Registration Act 2002 (under which owner’s powers in relation to a registered estate do not include power to mortgage by demise or sub-demise).]
Textual Amendments
F1S. 87(4) inserted (13.10.2003) by Land Registration Act 2002 (c. 9), ss. 133, 136(2), Sch. 11 para. 2(8) (with s. 129); S.I. 2003/1725, art. 2