The impact of possession on legality of mortgage registered on a building under construction: With case law

Abstract

The expansion of the subject of a mortgage to buildings under construction is a considerable step forward in regulating mortgages. It is not possible to register ownership rights on buildings under construction. A person acquiring ownership does not have the possibility to protect his rights. Acquiring ownership rights to a building under construction is tied to possession. This is detrimental to the principle of publicity which in turn erodes the principle of reliance. Validity of the mortgage is tied to the possession over the mortgaged real estate at the time of its registration. Such position of the courts challenges the very essence of mortgage.

Keywords

• property law
• mortgage
• possession
• real estate
• annotation
• ownership
• nullity