Property law (2022): Conveyancing: Mortgage (Part Two)

Mortgages in the United States.

The Three Theories of Mortgages.

There are three legal theories pertaining to mortgages: Title Theory, Lien Theory, and Intermediate Theory. These three theories pertain particularly to the operation of mortgages, and so provide the key to understanding the differences which exist in the operation of mortgages across jurisdictions.

Title Theory.

Title theory is "the idea that a mortgage transfers legal title of the mortgaged property from the mortgagor to the mortgagee, which retains it until the mortgage has been satisfied or foreclosed. Only a few American States...have adopted this theory." Under title theory, a mortgage has the effect of a deed passing legal title, though conditionally, of the mortgaged property to the mortgagee (the lender in a loan agreement being secured by the mortgage), with so-called "equitable title" (which is really equity of redemption) being retained by the mortgagor (the borrower in the loan). The fact of the mortgagor's retaining of the "equity of redemption" is the fact which renders the passing of title under title theory conditional. Mortgages within title theory jurisdictions, then, may be viewed as having the action of what might be called "conditional deeds". Though legal title is passed pursuant to a mortgage therein, the arrangement is generally construed by courts to recognize the mortgagor as "owner" of the mortgaged property within title theory jurisdictions. Even so, foreclosure of the property as a remedy for default under title theory is most often extrajudicial (non-judicial).