Mortgage Deed 2 That The Mortgagor Is Also The Owner In: Fill & Download for Free

Banks generally take securities as a form of comfort towards lending of loans. Loans are generally lent with two types of securities.1. Primary securities and 2.secondary or collateral securities.The assets created out of loan is called the primary security.The crops in case of agriculture, stocks of raw material,stocks under process, finished goods and goods in transit, money receivable (book debt) on sale of goods in case of manufacturing industries and stock in trade in case of service sector (trading) are treated as primary securities. Up to certain loan limits, Banks are as a matter of policy confine to primary securities alone without insisting for secondary securities mostly to assist small men.In addition to primary securities Banks do take secondary or collateral securities also depending on the amount lent and the need to cover the loan amount.The value of collateral so taken normally exceed the loan amount.While for small amounts where assets are not created out of loan to form primary security,collateral like liquid assets namely fixed deposit, jewels, shares, LIC policies etc are taken by way of pledge/hypothecation, for bigger amounts generally mortgage of immovable assets like land and buildings are taken as collateral. In case of mortgage the interest in the property or assets is transferred from the owner to the Bank by creation of mortgage deed though the possession of the property lie with the mortgagor the owner. Mortgage in general is essentially a process of creation of interest in the immovable property by the owner in favor of the Bank for securing the loan as collateral security.

Transfer of property is an act of conveying property from one person to another, in present or future. According to section 8 of the Transfer of Property Act 1882 (The Act), by transferring property, transferor transfers all rights in a property. There are various modes of transferring ownership of property: permanently by 1) relinquishment 2) sale 3) gift; and temporarily by way of 4) mortgage 5) lease and, 6) leave and license agreement.Under Sec 54, the sale is a transfer of ownership by a deed (sale deed/transfer deed) for a price, paid or promised or part paid and part promised. The sale deed is compulsorily required to be stamped (stamp duty) and registered (before a Sub-Registrar) and is for consideration. Sale of property may result in long term, or short term capital gains tax liability, depending upon the period of holding of the property. This tax is payable by the seller of the property, and there are provisions under the Income Tax Act 1961 to save long term capital gains tax. Also, the tax implications are different when you have an under construction property and when you receive the possession of it. Also, the purchaser of a property is required to withhold 1% tax and deposit it with an authorized bank.Sec 105 of the Act defines lease as a transfer of the right to enjoy a property, for a certain period, express or implied, in consideration of a price paid or promised, money or any other thing of value, to be rendered periodically or on such occasions. Section 17 of the Registration Act, 1908 mandates registration of the rental agreement, if the lease period is for more than 11 months. In all other cases, oral agreement accompanied with the delivery of possession is sufficient. The registration process involves payment of stamp duty and registration fees. The lease deed should clearly specify the purpose of the tenancy whether residential or commercial. The contract should also clearly mention the provision for premature termination of the lease. Under a lease agreement, the tenant has exclusive possession of the property. A tenant can sub-let the premises to a third party unless prohibited or restricted under the rental agreement.Sec 58 of the Act defines Mortgage as the transfer of interest in the specific immovable property by way of a mortgage deed or deposition of title deeds for securing payment of a loan. The owner of the property creating a lien on an immovable property to the lender is the mortgagor. The lender is the mortgagee.In a mortgage, the mortgagor may either deposit title deeds of immovable property to the lender or his agent with intent to create security or execute a mortgage deed. If there is a debt and if the debtor deposits title deeds with an intention that the title deeds shall be security for the debt, then by the mere fact of deposit of those title deeds, a mortgage comes into being. A mortgage by deposit of title deed does not require registration. Sometimes, a memorandum accompanies the deposit of title deeds to evidence the purpose of deposition of title deeds by way of an aide memoir. Though a mortgage by deposit of title deeds can be created by a mere deposit of title deeds without any written contract between the parties, in case the bargain or contract is reduced to writing, then it has to be registered.Under section 122 of the Act, one can transfer immovable property through registered gift deed. The immovable property is transferred voluntarily without any consideration. To make the transfer valid it is mandatory to register a gift deed with the sub-registrar as per section 17 of the Registration Act, 1908, and section 123 of the Transfer of Property Act. A donor does not have the right to revoke or cancel the registered deed at a later stage unless there is a specific clause mentioned in the deed. Section 126 of the Act provides for a situation wherein a donor can revoke a gift deed. For instance, if the property was gifted so that the recipient can reside in it, upon the death of the recipient, the property will get transferred back to the donor if she is alive, else to the heirs of the recipient. The Income-Tax Act 1961 specifies that capital gains arising out of a gifted property to blood relations are exempted from tax. However, income accrued from the gifted asset may be taxable.Relinquishment is surrendering inherited or parental rights for another “legal heir”/ “another collateral” in the same property. In simple terms, relinquishment is a family arrangement where one legal heir surrenders his share in the property with or without monetary consideration for another legal heir. The relinquishment deed cannot be executed for another person who is not a legal heir. The relinquishment of property results in taxation of capital gains and on the basis of time horizon of holding the asset the gains are derived and taxes are calculated.Registration of transfer of ownership of propertyOnce a property has been transferred by way of relinquishment, sale, or gift deed in the “name” of the recipient. It is also important to have the transfer recorded in the municipal records by way of mutation.Stamp duty on transfer is payable as per applicable state laws. The stamp duty on gift deed may or may not be equal to the general stamp duty you pay on selling or relinquishing the property. It is different for different states in India.Circle rate is the minimum price at which stamp duty is payable in case of transfer of immovable property. These rates are an indicator of likely prices of properties in various areas. Circle rates differ within cities in the same state, and among various localities of a city.Where the actual price paid by a buyer is less than the circle rate, stamp duty is generally paid on the circle rate. However, a Sub-Registrar is required to allow registration of property even when the stamp duty paid is lower than the circle rate. However, it can impound the document and adjudicate proper stamp duty. The buyer can provide proof of the fact that the actual transaction is at the value stated in the deed, and that is the correct market value.State governments collect stamp duty and registration charges on the declared value or the circle rate, whichever is higher, on the property being transferred. These charges are usually defined as a percentage of the transaction value and differ across states. Besides stamp duty, typically 1% of the value of the property is charged as registration fee (to register the document). Stamp duty payable in case the purchaser is a woman is generally lower by about 1%-2% in most states. In Delhi, when purchasers are one or more women, its 4%, in case it’s only men or a corporate body, it’s 6% and in case it’s a man and woman it’s 5%. A further 1% is payable at registration charges.For the seller of the property capital gains tax would be calculated on the value of the property as fixed by the Stamp Valuation Authority especially when such value is higher than the declared value of the property as appearing in the sale deed. In the situation of individuals and Hindu Undivided Families receiving properties from non-relatives, the circle value rate of the property would be treated as the amount on which income-tax is payable according to the Income-tax Act. In case a buyer get’s it for a lower price, the difference would be chargeable to tax as “Other Income”.

I wrote this article some time ago:Don't Insure for the Mortgage Amount (Regardless of What the Bank Says)Author: Bill WilsonEvery agency has experienced this to one degree or another: A client buys a house and the replacement cost of the dwelling is considerably less than the mortgage amount. The insurer refuses to issue a policy with a Coverage A amount greater than the replacement cost, but the lender insists on a policy limit equal to the mortgage amount.Here's a typical situation:"We need your help! We're getting beat up by lenders insisting that we insure a home for the loan amount rather than replacement value. In our area, selling price values are soaring but replacement values are steady. People are refinancing with lower interest rates, starting a vicious battle between the loan officer (representing the lender) and us (representing the insurance company)."Here lies the problem: the loan officer will absolutely accept nothing short of the loan amount and they become angry and very threatening if we don't do exactly as they demand. The insurance companies demand some type of proof as to why we are requesting an increase (and a refinance is not the reason)."A typical situation is as follows: The bank faxes our office a request to change the mortgage clause and increase coverage to the loan amount. We respond that we need an appraisal showing replacement value from them to increase coverage. They normally supply an appraisal which agrees with our current coverage. We then advise them that we cannot increase coverage as we currently insure at replacement value and that their appraisal agrees. Now the trouble starts. We normally receive multiple calls from the loan officer calling us illegal, unprofessional, not serving our client, threatening to take the business away from us, and on and on. The calls start at the CSR level, then move up to the personal lines manager, and sometimes moves up to me, the owner, with each one of us explaining the same thing."This problem is only getting worse and I'm afraid it could get a lot worse. I'm concerned that banks will use this issue as leverage to rewrite our policies into their markets."I contacted the local insurance department office and he advised I could lodge an individual complaint on each situation with them. We're getting about 7 to 8 requests per day of which 1 or 2 can get real ugly."The lender's position is understandable, but misguided. Clearly, they want to protect their investment. That investment consists of two components: (1) the real estate (land, home, outbuildings, etc.), and (2) the loan itself. Insurance is the mechanism designed to protect against the pure risk of loss to the real property. However, the loan itself is a speculative business risk...that's not the function of insurance.As an example, let's say the purchase price and loan amount for a home is $200,000...for the sake of simplicity, we'll forget about any down payment. This $200,000 represents market value, not insurable value. The cost to rebuild the home itself might be $140,000, with the $60,000 balance being the value of the land and other structures. The purchase price includes the value of land, all structures, and even other property that may not be covered by a homeowners policy.The purchase price may also include the "value" of the location. I once looked at two new homes, both built from the same floor plan by the same contractor. The asking price for one of the homes was 50% higher than the other based SOLELY on the location of the home in a "preferred" neighborhood. The cost to rebuild the homes would be virtually identical.Under a homeowners policy, the insurance company would never pay more than $140,000 if the home was completely destroyed unless required to by a state's valued policy law (which is another reason for not insuring the loan amount). There has been no damage to the land or the "location value" (or at least the policy isn't going to pay that amount), so it would largely be pointless to insure the property for more than the structural replacement costs.It does not serve the bank's interest in any way to be the mortgagee on a policy with a policy limit equal to the loan amount because neither the insured nor the bank will ever collect that amount. The policy will only pay an amount based on the valuation method included in the contract. Again, this is the case if no valued policy law applies...if it does, then the insured could actually profit from the loss by insuring the loan amount rather than the replacement cost of the property. This would violate one of the fundamental tenets of insurance and, conceivably, could create a moral hazard.If an insurance company issues a replacement cost (or, worse, an ACV) policy with a limit greater than the actual cost to repair or replace, they may be in violation of the insurance laws in most states. I'm pretty sure all states require that rates/premiums be adequate, not excessive, and not unfairly discriminatory. What these banks are asking is that the insurance company issue a policy with an excessive premium (payment for coverage the insured can never collect without a total loss and triggering of a valued policy law, which has a likelihood of maybe 1-3%) and that's probably illegal.For example, TENNESSEE has an "Unfair Competition and Deceptive Practices" statute regarding loan amounts that exceed the value of a building or structure:"Lenders of money - Extenders of credit."(a) No person who lends money or extends credit may:"(8) Require, in connection with a loan or extension of credit secured by real property, that the debtor procure insurance for the protection of the property for an amount that exceeds the replacement cost of the structures existing on the secured property at the time of the loan or extension of credit or, in the case of a construction or improvement loan, insurance which exceeds the value the structures are expected to have upon completion of the construction or improvements."This law was enacted by an initiative of IIABA's state affiliate, the Insurors of Tennessee, in response to the situation described above.So, as you can see, a lender should not be permitted to demand an insurance limit that exceeds the value of the property insured as defined by the insurance contract. The insured or lender should never receive more than the actual value of the damaged property. In addition, "over-insuring" the property could be illegal, by statute or contract.Note: For another excellent article on this subject, and specific to FLORIDA law, check out Insuring for the Mortgage Amount on the Florida Association of Insurance Agents web site. As the article explains, Florida Administrative Code prohibits a mortgage lender from requiring insurance in an amount that exceeds the replacement cost of the home:"4-167.009 Mortgage Fire Insurance Requirements LimitedNo mortgage lender shall, in connection with any application for a mortgage loan in this state which is secured by a mortgage on residential real estate located in this state, require any prospective mortgagor to obtain by purchase or otherwise a fire insurance policy in excess of the replacement value of the covered premises as a condition for granting such a mortgage."Another state that has responded to this situation via insurance department directive is GEORGIA. According to Georgia Directive 98-PC-1, Establishment of Property Values and Corresponding Insurance Amounts on Mortgaged Properties Insured in Georgia (June 26, 1998):"Land values may not be included in the computation when determining the amount of appropriate homeowners insurance because homeowners insurance does not insure the land on which the home is located. Therefore, such activities are in violation of O.C.G.A. 33-6-5(6)(A) which provides as follows: 'No person shall knowingly collect any sum as premium or charge for insurance, which insurance is not then provided or not in due course to be provided subject to acceptance of the risk by the insurer by an insurance policy issue by an insurer as permitted by this title.'"The directive goes on to say that agents engaged in this practice can be fined from $1,000-$5,000 for each act and/or have his licensed suspended, revoked or placed on probation. Any insurer in violation of the law may have its certificate of authority suspended, revoked or placed on probation.Following the publication of this article, we heard from several other states who have similar "over insurance" laws besides Florida, Georgia, and Tennessee...below is a summary listing of the other states we're aware of with "over insurance" prohibitions.ArizonaARS 44-1208. Loans secured by real estate; prohibited practices; insurance. Except for consumer lender loans regulated pursuant to section 6-636, for any loan that is secured by real property, a person shall not require as a condition of the loan that the borrower obtain property insurance coverage in an amount that exceeds the replacement cost of the improvements as established by the property insurer.[Note: The statute covers only real property (not mobile homes) and does not include commercial buildings. For more information, go to: http://www.azleg.state.az.us/ars/44/01208.htm]CaliforniaCalifornia Civil Code § 2955.5 says, in part:(a) No lender shall require a borrower, as a condition of receiving or maintaining a loan secured by real property, to provide hazard insurance coverage against risks to the improvements on that real property in an amount exceeding the replacement value of the improvements on the property.(b) A lender shall disclose to a borrower, in writing, the contents of subdivision (a), as soon as practicable, but before execution of any note or security documents.(c) Any person harmed by a violation of this section shall be entitled to obtain injunctive relief and may recover damages and reasonable attorney's fees and costs.(d) A violation of this section does not affect the validity of the loan, note secured by a deed of trust, mortgage, or deed of trust.ConnecticutStatute 360-757 originated with public act PA 84-212 which prohibits a mortgage lender from requiring a prospective home buyer to obtain a fire insurance policy in excess of the home's replacement value, as a condition of granting a mortgage loan on residential property located in the state and secured by such a mortgage. The act was effective on October 1, 1984. On October 1, 2000, the statute was broadened by PA 00-95 to include flood insurance, extended coverage insurance, or any combination of insurance, including fire insurance.IllinoisPublic Act 093-1021 Effective August 24, 2004:Section 5. The mortgage Insurance Limitation and Notification Act is amended by adding Section 17 as follows:Sec. 17. Insurance coverage.(a) No lender shall require a borrower, as a condition of receiving or maintaining a loan secured by real property, to provide hazard insurance coverage against risks to the improvements on that real property in an amount exceeding the replacement value of the improvements on the property.(b) Any person harmed by a violation of this Section shall be entitled to obtain injunctive relief and may recover damages and reasonable attorney's fees and costs.(c) A violation of this Section does not affect the validity of the loan, note secured by a deed of trust, mortgage, or deed of trust.MassachusettsGeneral Law, Chapter 183, Section 66 says, in part:A bank, lending institution, mortgage company or any mortgagee doing business in the commonwealth, when making a mortgage loan, shall not require, as a condition of a mortgage or as a term of a mortgage deed, that the mortgagor purchase casualty insurance on property which is the subject of the mortgage in an amount in excess of the replacement cost of the buildings or appurtenances on the mortgaged premises.MichiganMORTGAGE LENDING PRACTICES (EXCERPT)Act 135 of 1977445.1602a Property/casualty Insurance as condition to loan; limitation on amount required; amount as condition of sale, transfer, or assignment. [M.S.A. 23.1125(2a)]Sec. 2a. (1) Except as provided in subsection (2), a credit granting institution that requires a mortgagor to maintain property/casualty insurance as a condition to receiving a mortgage loan shall not require the amount of the property/casualty insurance to be greater than the replacement cost of the mortgaged building or buildings.(2) A credit granting institution may require an amount of property/casualty insurance that is required of the credit granting institution as a condition of a sale, transfer, or assignment of all or part of the mortgage to a third party. This subsection does not require that the credit granting institution anticipate a sale, transfer, or assignment at the time the mortgage loan is made.History: Add. 1995, Act 214, Imd. Eff. Nov. 29, 1995MontanaIn 2009, SB 375 amended MCA 32-1-430, 32-3-604, and 32-10-401 to provide that a “lender may not require insurance on improvements to real property in an amount that exceeds the reasonable replacement value of the improvements..”New HampshireRSA 417:4 printed 01-12-2006 from NH Insurance Dept websiteXVI. COERCION IN REQUIRING INSURANCE.(a) No creditor or lender engaged in the business of financing the purchase of real or personal property or of lending money on the security of real or personal property may require, as a condition to such financing or lending, or as a condition to the renewal or extension of any such loan or to the performance of any other act in connection with such financing or lending, that the purchaser or borrower, or the purchaser's or borrower's successors shall negotiate through a particular insurance company or companies, insurance agent or agents, broker or brokers, type of company or types of companies, any policy of insurance or renewal of a policy insuring such property. This provision does not prevent the exercise by any mortgagee of the right to approve on a reasonable nondiscriminatory basis only insurance companies authorized to do business in this state, selected by the borrower.(b) There shall be no interference either directly or indirectly with such borrower's, debtor's or purchaser's free choice of an agent and of an insurer which complies with the foregoing requirements, and the creditor or lender may not refuse the policy so tendered by the borrower, debtor or purchaser. Upon notice of any refusal of such tendered policy, the insurance commissioner shall order the creditor or lender to accept the tendered policy, if the commissioner determines that the refusal is not in accordance with the foregoing requirements of this subparagraph. Failure to comply with such an order of the insurance commissioner is a violation of this section.(c) Whenever the instrument requires that the purchaser, mortgagor, or borrower furnish insurance of any kind on real or personal property which is being conveyed or which is collateral security to a loan, the mortgagee or lender shall refrain from disclosing or using any and all such insurance information to its own advantage and to the detriment of either the borrower, purchaser, mortgagor, insurer, or company or agency complying with the requirements relating to insurance.(d) Notwithstanding any other law to the contrary, a creditor or lender of a loan secured by an interest in real property shall not require the borrower to keep the mortgaged property insured under a property insurance policy in a sum in excess of the value of the buildings on the real property.(e) Notwithstanding any other law to the contrary, no creditor or lender shall require as a condition to closing a loan that the borrower provide an original insurance policy at said closing; provided, however, that the creditor or lender may require the borrower to produce at closing a binder showing the borrower as a named insured and creditor or lender as mortgagee, and confirming that insurance has been issued, is in force, and will remain in full force until a copy of the final policy is delivered to the creditor or lender or until the creditor or lender has received notice of cancellation in accordance with the policy conditions.(f) No insurer may automatically write insurance on a debtor who has contracted credit based on the principle that the insurance is applicable unless specifically rejected by the debtor, unless the premium or such other identifiable charge as may be applicable is paid in full by the creditor.New JerseyNJAC 3:1-13.1Insurance tie-in prohibition(c) No lender shall, in connection with any application for a loan secured by a mortgage on real property located in New Jersey, require any mortgagor to obtain by purchase or otherwise a fire insurance policy in excess of the replacement value of the covered premises as permitted under N.J.S.A. 17:36-5.19 as a condition for granting such mortgage loan.New York3 NYCRR 38.9 Limitation on excess insurance and required disclosures(a) Limitation on excess insurance.No mortgage banker or exempt organization shall require any mortgagor, in connection with the granting of a mortgage loan, to obtain a hazard insurance policy in excess of the replacement cost of the improvements on the property as a condition for the granting of such mortgage loan.North Carolina58-63-25 "Unfair methods of competition" or "unfair and deceptive acts or practices"The following are hereby defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance:(13) Overinsurance in Credit or Loan Transactions. In connection with a loan or extension of credit secured by real or personal property or both, requiring the applicant to procure property and casualty insurance against any one risk which results in coverage which exceeds the replacement value of the secured property at the time of the loan or extension of credit. In connection with a secured or unsecured loan or extension of credit, requiring the applicant to procure life or health insurance against any one risk which exceeds the amount of the loan. In connection with a loan secured by both real and personal property, requiring credit property insurance, as defined in G.S. 58-57-90, on the personal property. For the purposes of this subsection, "amount of loan" shall be deemed to be the amount of the principal and accrued interest to be paid by the debtor including other allowable charges.PennsylvaniaHere is a paper written by our Pennsylvania association on this issue relative to PA laws.Rhode IslandCHAPTER 27-5 - Fire Insurance Policies and Reserves - SECTION 27-5-3.2§ 27-5-3.2 Property insurance. No person, bank, or lending institution doing business in this state, whether acting under state or federal authority, which includes but is not limited to (1) a bank, savings bank, or trust company, as defined in this title, its affiliates or subsidiaries, (2) a bank holding company, as defined in 12 U.S.C. § 1841, its affiliates or subsidiaries, (3) mortgage companies, and (4) any other individual, corporation, partnership, or association authorized to take deposits and/or to make loans of money under the provisions of chapters 20, 21, 22, 23, 24, 25, 25.2, and 25.3 of title 19, making a mortgage loan, shall, as a condition of the mortgage or as a term of the mortgage deed, require that the mortgagor carry property insurance on the property which is the subject of the mortgage in excess of the replacement cost of any buildings or appurtenances subject to the mortgage; provided, that if a mortgage is sold, transferred, conveyed, or assigned, it shall be the responsibility of the holder of the mortgage to notify the insurance producer issuing the property insurance policy in writing of that sale, transfer, conveyance, or assignment. This notice shall be made in writing and shall be sent to the insurance producer within thirty (30) days of the sale, transfer, conveyance, or assignment by registered mail. In the event that the holder of a mortgage shall fail to notify the insurance producer who issued the property insurance policy that is in force, in writing, of that sale, transfer, conveyance, or assignment within thirty (30) days, the holder shall indemnify and hold the insurance producer harmless.VirginiaThe question posed was if a bank could force the consumer to have an insurance policy with the insured amount being the loan value even if this exceeds the value of the building. Under Virginia Banking code banks are not allowed to do this. The statutes does not reference personal or business loan so we would assume it applies to both.VA Code- 6.1-2.6:1. Fire insurance coverage under certain loans not to exceed replacement value of improvements.A. No lender shall require a borrower, as a condition to receiving or maintaining a loan secured by any mortgage or deed of trust, to provide or purchase property insurance coverage against risks to any improvements on any real property in an amount exceeding the replacement value of the improvements on the real property.In this section, 'property insurance coverage' means insurance against losses or damages caused by perils that commonly are covered in insurance policies described with terms similar to 'standard fire' or 'standard fire with extended coverage.'In determining the replacement value of the improvements on any real property, the lender may:1. Accept the value placed on the improvements by the insurer; or2. Use the value placed on the improvements that is determined by the lender's appraisal of the real property.B. A violation of this section shall not affect the validity of the mortgage or deed of trust securing the loan."Wisconsin632.07  Prohibiting requiring property insurance in excess of replacement value. A lender may not require a borrower, as a condition of receiving or maintaining a loan secured by real property, to insure the property against risks to improvements on the real property in an amount that exceeds the replacement value or market value of the improvements, whichever is greater.For an example of a related article regarding flood insurance prohibitions on this practice, "Flood Insurance Mandatory Purchase Guidelines".Last Updated: May 17, 2014Source:https://www.independentagent.com/Education/VU/Education/VU/Insurance/Personal-Lines/Homeowners/Conditions/WilsonMortgageAmount.aspx