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Mortgagee Sales 2010

NZ $65.00
Mark Hopkinson Justin Toebes
Mark Hopkinson
Justin Toebes

This book is only available in PDF format

Published: 22 June 2010
Pages: 119


In recent months it is said that up to 25% of all transfers registered with Land Information New Zealand (LINZ) are transfers in exercise of power of sale.  The context is a lower than usual number of overall sales in such months, but even so there is a clear reinforcement that we have:

  • some properties with significant re-rating of values downwards; and/or
  • a visible percentage of mortgagors who are either unable to service their secured borrowings and/or themselves effect a sale of the mortgaged property.

This is relevant for legal practitioners, not only the increased number of conveyancing practitioners that will be exposed to the mortgagee sale process; but also litigators because of the angst that is caused by properties selling for less than the value of the secured debt or for which they were recently purchased for by the mortgagor.  This angst is heightened because of the easy availability over the last few years of substantial loan monies for all types of purchasers and for all types of property.

The November 2007 NZLS CLE Mortgagee Sales seminar and booklet were prepared, by happy coincidence, at the time of the enactment of the new Property Law Act 2007 (“PLA”) which came into force on 1 January 2008.  Accordingly that seminar booklet concentrated very much on the provisions of the new act in relation to the mortgagee sales process and some of the new rights of and obligations imposed on mortgagees.
Two and a half years later, the 2010 seminar and booklet deal with the experiences since then, including a substantial increase in the litigation that has occurred in relation to clearing the title; obtaining vacant possession; and suing mortgagors and guarantors for shortfalls.

As a necessity, because the booklet is intended to deal with all the aspects of mortgagee sale, there are some parts that are carried over from the 2007 booklet with simply a brief update, but otherwise we hope that the new seminar and booklet will provide a more rounded and practical resource for practitioners including litigation practitioners involved in mortgagee sales.

As was noted in the introduction to the 2007 booklet, the PLA deals with not only mortgages of lands, but property of all kinds – including goods.  Certain parts of the PLA contain mirror sections that apply to the mortgagee’s enforcement of rights under a mortgage over goods as distinct from a mortgage over land.  Unfortunately there is a tortuous interface between these provisions contained in the PLA on the one hand and in the Personal Properties Securities Act (“PPSA”) on the other hand.  We have added a chapter to this booklet where we attempt to set out a pathway through that interface.

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