Problems of reconciling the mortgagee's debt guarantee and the mortgagor's powers over the mortgaged property - a comparative study

Abstract

Abstract: The mortgage represents a solid guarantee mechanism for the mortgagee to recover his debt from the mortgaged property. The legislator has attempted to reconcile the preservation of his right with the mortgagor's authority to dispose of and other powers over the mortgaged property. However, the legislator's study of this protection for the mortgagee has revealed shortcomings in some cases. Many problems have been identified that the mortgagee faces in obtaining his right from the debt secured by the mortgage, including those related to the mortgagor's rights over the mortgaged property to dispose of and exploit it, and others related to the mortgagee's exercise of the right of priority. He may be exposed to competition from those with privileged rights, which are enforced before the mortgagee's debt, even if he is prior in rank. In addition, he may exercise the right to track the mortgaged property in the hands of the possessor and carry out procedures to release the mortgaged property. Therefore, the mortgagee's implementation of procedures to obtain his right to recover the debt is fraught with problems, and ultimately he is exposed to harm that does not lead to his full right being obtained, but rather leads to the termination of the mortgage designated for the payment of the debt.