The general position of the law is that, subject to the agreement of the parties to a mortgage transaction, both the mortgagor and mortgagee of a leased property have power to lease mortgaged property. The only condition that needs to be satisfied is that the party leasing must be in possession. While the rights and liabilities of the mortgagor and mortgagee in relation to the mortgage contract poses no problems, the various legislations on mortgage do not provide for the rights and liabilities of a lessee where the property, subject matter of a mortgage, is leased. It would seem that the lessee is subject to the terms of the contract between the mortgagor and mortgagee which he is not privy to. This situation may pose more challenges than is evident and recourse would be had frequently to equity. A threshold implies a boundary of a right. In the realm of property law, the Mortgagor, Mortgagee, Lessor, and Lessee have a multitude of individual rights. However, when these parties interact, not all of these rights are accommodated. Some are modified, and others are limited. The writer, in this paper, intends to conceptualize the interaction of leases in a mortgage transaction. The major jurisdiction explored is Nigeria, with a glimpse on how other jurisdictions comparatively handle similar transactions. This paper seeks to examine the limit of the rights and liabilities of a mortgagor, the mortgagee and lessee in relation to each other in the event of a valid lease of property subject to a mortgage with a view to proposing reforms in this important area of the law and property transaction.
| Published in | International Journal of Law and Society (Volume 7, Issue 4) |
| DOI | 10.11648/j.ijls.20240704.11 |
| Page(s) | 139-147 |
| Creative Commons |
This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited. |
| Copyright |
Copyright © The Author(s), 2024. Published by Science Publishing Group |
Mortgage Property, Lease, Rights and Liabilities, Threshold, Mortgagee, Lessor, Mortgagor, Lessee
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| [2] | B. O. N. Ltd. v Akintoye (1999) 12 NWLR (pt. 205) at 403; see also Maveyen Ewomazino Jemialu, Nigerian Property Law and Practice, Panaf Press, Nigeria, p. 229. |
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| [11] | E. Chianu, (2017) Law of Securities for Bank Advances (Mortgage of Land). (3rd Edn) Ambik Press. |
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| [13] | Robert Kratovil, Modern Mortgage Law and Practice, Prentice-Hall, New Jersey, U.S.A., 1972, p. 135. |
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| [15] | Maxims, (n.d) Kanoons https://www.indiankanoon.org/docfragment/627172/?formInput=maxims accessed 03 December 2023. See also Yaro v. Arewa Constructions Ltd (2008) AFWLR (pt 400) 603 at 634. |
| [16] | M. E. Jemialu, Nigerian Property Law and Practice, Panaf Press, Nigeria, 2023, p. 256, see also s. 33(10) MPL. |
| [17] | Aderoku v. United African Co. Ltd (1941) 7 WACA 39; Wema Bank PLC v. Bioku Investment & Property Co Ltd (987) FHCLR 275. |
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APA Style
Abdulrahman, S. T., Juwah, A. (2024). The Legal Threshold of Rights and Liabilities of the Mortgagor, Mortgagee, and Lessee of a Mortgage Property in Relation to the Validity of a Lease. International Journal of Law and Society, 7(4), 139-147. https://doi.org/10.11648/j.ijls.20240704.11
ACS Style
Abdulrahman, S. T.; Juwah, A. The Legal Threshold of Rights and Liabilities of the Mortgagor, Mortgagee, and Lessee of a Mortgage Property in Relation to the Validity of a Lease. Int. J. Law Soc. 2024, 7(4), 139-147. doi: 10.11648/j.ijls.20240704.11
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Download@article{10.11648/j.ijls.20240704.11,
author = {Saka Toyin Abdulrahman and Abigail Juwah},
title = {The Legal Threshold of Rights and Liabilities of the Mortgagor, Mortgagee, and Lessee of a Mortgage Property in Relation to the Validity of a Lease
},
journal = {International Journal of Law and Society},
volume = {7},
number = {4},
pages = {139-147},
doi = {10.11648/j.ijls.20240704.11},
url = {https://doi.org/10.11648/j.ijls.20240704.11},
eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20240704.11},
abstract = {The general position of the law is that, subject to the agreement of the parties to a mortgage transaction, both the mortgagor and mortgagee of a leased property have power to lease mortgaged property. The only condition that needs to be satisfied is that the party leasing must be in possession. While the rights and liabilities of the mortgagor and mortgagee in relation to the mortgage contract poses no problems, the various legislations on mortgage do not provide for the rights and liabilities of a lessee where the property, subject matter of a mortgage, is leased. It would seem that the lessee is subject to the terms of the contract between the mortgagor and mortgagee which he is not privy to. This situation may pose more challenges than is evident and recourse would be had frequently to equity. A threshold implies a boundary of a right. In the realm of property law, the Mortgagor, Mortgagee, Lessor, and Lessee have a multitude of individual rights. However, when these parties interact, not all of these rights are accommodated. Some are modified, and others are limited. The writer, in this paper, intends to conceptualize the interaction of leases in a mortgage transaction. The major jurisdiction explored is Nigeria, with a glimpse on how other jurisdictions comparatively handle similar transactions. This paper seeks to examine the limit of the rights and liabilities of a mortgagor, the mortgagee and lessee in relation to each other in the event of a valid lease of property subject to a mortgage with a view to proposing reforms in this important area of the law and property transaction.
},
year = {2024}
}
TY - JOUR T1 - The Legal Threshold of Rights and Liabilities of the Mortgagor, Mortgagee, and Lessee of a Mortgage Property in Relation to the Validity of a Lease AU - Saka Toyin Abdulrahman AU - Abigail Juwah Y1 - 2024/10/10 PY - 2024 N1 - https://doi.org/10.11648/j.ijls.20240704.11 DO - 10.11648/j.ijls.20240704.11 T2 - International Journal of Law and Society JF - International Journal of Law and Society JO - International Journal of Law and Society SP - 139 EP - 147 PB - Science Publishing Group SN - 2640-1908 UR - https://doi.org/10.11648/j.ijls.20240704.11 AB - The general position of the law is that, subject to the agreement of the parties to a mortgage transaction, both the mortgagor and mortgagee of a leased property have power to lease mortgaged property. The only condition that needs to be satisfied is that the party leasing must be in possession. While the rights and liabilities of the mortgagor and mortgagee in relation to the mortgage contract poses no problems, the various legislations on mortgage do not provide for the rights and liabilities of a lessee where the property, subject matter of a mortgage, is leased. It would seem that the lessee is subject to the terms of the contract between the mortgagor and mortgagee which he is not privy to. This situation may pose more challenges than is evident and recourse would be had frequently to equity. A threshold implies a boundary of a right. In the realm of property law, the Mortgagor, Mortgagee, Lessor, and Lessee have a multitude of individual rights. However, when these parties interact, not all of these rights are accommodated. Some are modified, and others are limited. The writer, in this paper, intends to conceptualize the interaction of leases in a mortgage transaction. The major jurisdiction explored is Nigeria, with a glimpse on how other jurisdictions comparatively handle similar transactions. This paper seeks to examine the limit of the rights and liabilities of a mortgagor, the mortgagee and lessee in relation to each other in the event of a valid lease of property subject to a mortgage with a view to proposing reforms in this important area of the law and property transaction. VL - 7 IS - 4 ER -
Property Law Practice Department, Nigerian Law School, Enugu Campus, Enugu, Nigeria
Corporate and Litigation Department, Aelex Partners Law Firm, Portharcourt, Nigeria
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