Junior Mortgage

Junior mortgage

What effect does the first mortgage and junior mortgage consolidate on the prioritisation level of a freehold right for overheads not paid? The RPL Section 339-z provides that first mortgage loans covered before the rights of lien for overheads not paid (and other exempted charges) have an absolute precedence over such rights of lien. In general, the pledges of condominiums, unless excluded by law or in certain circumstances, are preferable to subordinated mortgage loans, regardless of which charge was first recognised.

The Court in 1993 went a wrong way in responding to the issue of the impact of consolidating on the primacy of a pledge on condominiums. The Court found that, despite the conclusion and recording of the first and junior loans consolidating for the purposes of creating a sole pledge before registration of the retention of title, only the first mortgage took precedence over the retention of title and the junior loans were still substandard. iii Although the Court interpreted rigorously the RPL Section 339-z in its possession terminology, it could not assess the inadequacy of its use.

Both in the Dime Savings case and later in 2000 in the Greenpoint Bank's case file, which followed the Dime Savings Holdings, the Court of First Instance examined the date of registration of the pledges and the explicit aim of including the subordinated mortgage in its rulings on the primacy of the pledge.

The facts in both cases indicated a determination that the junior mortgage exceeded the pledge.

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