Legislative impact on the mortgagee’s exercise of power of sale : the need for rationalisation

Lark, Anna (2012) Legislative impact on the mortgagee’s exercise of power of sale : the need for rationalisation. Australian Property Law Journal, 20(2), pp. 145-172.

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Abstract

Throughout Australia, regulation of the power of sale is highly inconsistent. In response to the uncertain nature of the mortgagee’s duty at common law, many legislatures have intervened. As a result, there has been a proliferation of statutory formula conferring varying degrees of protection on mortgagors. The differences in approach indicate a lack of consensus as to the best method of regulation. This article exposes the extent of the inconsistency and provides a comparative assessment of the various provisions with reference to the policy concerns that underpin legislative intervention. The article identifies a number of deficiencies associated with existing provisions and concludes that mortgagees and mortgagors alike would benefit from improved clarity and consistency. To that end, the article proposes a model provision that seeks to address the deficiencies identified.

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ID Code: 74674
Item Type: Journal Article
Refereed: Yes
Keywords: mortgages, power of sale, duty of care
ISSN: 1038-5959
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Corporations and Associations Law (180109)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Property Law (excl. Intellectual Property Law) (180124)
Divisions: Current > Research Centres > Commercial & Property Law Research Centre
Current > QUT Faculties and Divisions > Faculty of Law
Deposited On: 05 Aug 2014 02:49
Last Modified: 06 Aug 2014 01:41

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