ABSTRACT
There is no doubt that, for the ordinary person, the purchase of a house is their most direct contact with the law of real property. For this event most people require a mortgage, and the subsequent repayment of the mortgage becomes one of their most pressing economic concerns. However, the use of the mortgage as a device to acquire property is a relatively modern development. In fact, for so long as people have been capable of owning land (or more precisely, an interest in it), the mortgage has been a way of converting a fixed economic asset (the land) into a flexible economic asset (its monetary value). The mortgage is, in essence, a way of realising and releasing the capital value of the land. Fundamentally, therefore, a mortgage is a security for a loan. This rather bland statement hides a multitude of consequences, not least the idea that a mortgage – being a proprietary right – is subject to controls not otherwise found in ‘ordinary’ loan contracts. Indeed, one of the most frequent examination questions asks the student to assess the extent to which a mortgage really is a right in property or just another species of contract.
