Analysing Mortgagor Protections in Equity and Under Statute

Abstract

The non-fraudulent registered mortgagee of Torrens system land obtains an immediately indefeasible title that is immune from challenge by adverse claims. The validating effect of registration extends to all terms in the mortgage that are integral to the mortgagee’s interest in the land. However, standing against this indefeasibility is the mortgagor’s right to challenge terms in a registered mortgage on the grounds of the equitable doctrine against clogging the equity of redemption and the equitable doctrine that prohibits unconscionable and or oppressive terms in a mortgage. In addition to these equitable doctrines, the Torrens mortgagor is also protected against unconscionable mortgagee practices under various statutes. This article analyses the bases of these equitable and statutory mortgago protections and considers their rightful place within the Torrens construct.