Security interest

In finance, a security interest is a legal right granted by a debtor to a creditor over the debtor's property (usually referred to as the ''collateral'') which enables the creditor to have recourse to the property if the debtor defaults in making payment or otherwise performing the secured obligations. One of the most common examples of a security interest is a mortgage: a person borrows money from the bank to buy a house, and they grant a mortgage over the house so that if they default in repaying the loan, the bank can sell the house and apply the proceeds to the outstanding loan.

Although most security interests are created by agreement between the parties, it is also possible for a security interest to arise by operation of law. For example, in many jurisdictions a mechanic who repairs a car benefits from a lien over the car for the cost of repairs. This lien arises by operation of law in the absence of any agreement between the parties.

Most security interests are granted by the person who owns the property to secure their own indebtedness. But it is also possible for a person to grant security over their property as collateral for the debts of another person (often called ''third party security''). So a parent might grant a security interest over their home to support a business loan being made to their child. Similarly, most security interests operate to secure debts or other direct financial obligations. But sometimes a security is granted to secure a non-financial obligation. For example, in construction a performance bond may secure the satisfactory performance of non-financial obligations.

The different types of security interest which can arise and the rights which they confer will vary from country to country.

Rationale

A secured creditor takes a security interest to enforce its rights against collateral in case the debtor defaults on the obligation. If the debtor goes bankrupt, a secured creditor takes precedence over unsecured creditors in the distribution.

There are other reasons that people sometimes take security over assets. In shareholders' agreements involving two parties (such as a joint venture), sometimes the shareholders . It is sometimes suggested that banks may take floating charges over companies by way of security - not so much for the security for payment of their own debts, but because this ensures that no other bank will, ordinarily, lend to the company; thereby almost granting a monopoly in favour of the bank holding the floating charge on lending to the company.

Some economists question the utility of security interests and secured lending generally. Proponents argue that secured interests lower the risk for the lender, and in turn allows the lender to charge lower interest, thereby lowering the cost of capital for the borrower.
Detractors argue that creditors with security interests can destroy companies that are in financial difficulty, but which might still recover and be profitable. The secured lenders might get nervous and enforce the security early, repossessing key assets and forcing the company into bankruptcy. Further, the general principle of most insolvency regimes is that creditors should be treated equally (or '' pari passu''), and allowing secured creditors a preference to certain assets upsets the conceptual basis of an insolvency.

More sophisticated criticisms of security point out that although unsecured creditors will receive less on insolvency, they should be able to compensate by charging a higher interest rate. However, since many unsecured creditors are unable to adjust their "interest rates" upwards (tort claimants, employees), the company benefits from a cheaper rate of credit, to the detriment of these non-adjusting creditors. There is thus a transfer of value from these parties to secured borrowers.

Most insolvency law allows mutual debts to be set-off, allowing certain creditors (those who also owe money to the insolvent debtor) a pre-preferential position. In some countries, "involuntary" creditors (such as tort victims) also have preferential status, and in others environmental claims have special preferred rights for cleanup costs.

The most frequently used criticism of secured lending is that, if secured creditors are allowed to seize and sell key assets, a liquidator or bankruptcy trustee loses the ability to sell off the business as a going concern, and may be forced to sell the business on a break-up basis. This may mean realising a much smaller return for the unsecured creditors, and will invariably mean that all the employees will be made redundant.

For this reason, many jurisdictions restrict the ability of secured creditors to enforce their rights in a bankruptcy. In the U.S., the Chapter 11 creditor protection, which completely prevents enforcement of security interests, aims at keeping enterprises running at the expense of creditors' rights, and is often heavily criticised for that reason. In the United Kingdom, an administration order has a similar effect, but is less expansive in scope and restriction in terms of creditors rights. European systems are often touted as being pro-creditor, but many European jurisdictions also impose restrictions upon time limits that must be observed before secured creditors can enforce their rights. The most draconian jurisdictions in favour of creditor's rights tend to be in offshore financial centres, who hope that, by having a legal system heavily biased towards secured creditors, they will encourage banks to lend at cheaper rates to offshore structures, and thus in turn encourage business to use them to obtain cheaper funds.

Overview

Under English law and in most common law jurisdictions derived from English law (the United States is the exception as explained below), there are nine major types of proprietary security interests:

#'true' legal mortgage;
#equitable mortgage;
#statutory mortgage;
#fixed equitable charge, or bill of sale;
#floating equitable charge;
#pledge, or pawn;
#legal lien;
#equitable lien; and
#hypothecation, or trust receipt.

The United States also developed the conditional sale of personal property as another form of security interest, which is now obsolete.

Security interests at common law are either ''possessory'' or '' nonpossessory'', depending upon whether the secured party actually needs to take possession of the collateral. Alternatively, they arise ''by agreement'' between the parties (usually by executing a security agreement), or ''by operation of law''.

The evolution of the law of nonpossessory security interests in personal property has been particularly convoluted and messy. Under the rule of '' Twyne's Case'' (1601) transferring an interest in personal property without also immediately transferring possession was consistently regarded as a fraudulent conveyance. Over two hundred years would pass before such security interests were recognized as legitimate.

The following discussion of the types of security interest principally concerns English law. English law on security interests has been followed in most common law countries, and most common law countries have similar property statutes regulating the common law rules.

Types

Security interests may be taken on any type of property. The law divides property into two classes: personal property and real property. Real property is the land, the buildings affixed to it and the rights that go with the land. Personal property is defined as any property other than real property.

"True" legal mortgage

A legal mortgage arises when the assets are conveyed to the secured party as security for the obligations, but subject to a right to have the assets reconveyed when the obligations are performed. This right is referred to as the " equity of redemption". The law has historically taken a dim view of provisions which might impede this right to have the assets reconveyed (referred to as being a "clog" on the equity of redemption); although the position has become more relaxed in recent years in relation to sophisticated financial transactions.

References to "true" legal mortgages mean mortgages by the traditional common law method of transfer subject to a proviso in this manner, and references are usually made in contradistinction to either equitable mortgages or statutory mortgages. True legal mortgages are relatively rare in modern commerce, outside of occasionally with respect to shares in companies. In England, true legal mortgages of land have been abolished in favour of statutory mortgages.

To complete a legal mortgage it is normally necessary that title to the assets is conveyed into the name of the secured party such that the secured party (or its nominee) becomes the legal titleholder to the asset. If a legal mortgage is not completed in this manner it will normally take effect as an equitable mortgage. Because of the requirement to transfer title, it is not possible to take a legal mortgage over future property, or to take more than one legal mortgage over the same assets. However, mortgages (legal and equitable) are nonpossessory security interests. Normally the party granting the mortgage (the ''mortgagor'') will remain in possession of the mortgaged asset.

The holder of a legal mortgage has three primary remedies in the event that there is a default on the secured obligations:

#they can foreclose on the assets,
#they can sell the assets, or
#they can appoint a receiver over the assets.

The holder of a mortgage can also usually sue upon the covenant to pay which appears in most mortgage instruments. There are a range of other remedies available to the holder of a mortgage, but they relate predominantly to land, and accordingly have been superseded by statute, and they are rarely exercised in practice in relation to other assets. The beneficiary of a mortgage (the ''mortgagee'') is entitled to pursue all of its remedies concurrently or consecutively.

Foreclosure is rarely exercised as a remedy. To execute foreclosure, the secured party needs to petition the court, and the order is made in two stages (''nisi'' and ''absolute''), making the process slow and cumbersome. Courts are historically reluctant to grant orders for foreclosure, and will often instead order a judicial sale. If the asset is worth more than the secured obligations, the secured party will normally have to account for the surplus. Even if a court makes a decree ''absolute'' and orders foreclosure, the court retains an absolute discretion to reopen the foreclosure after the making of the order, although this would not affect the title of any third party purchaser.

The holder of a legal mortgage also has a power of sale over the assets. Every mortgage contains an implied power of sale.'' Deverges v Sandeman, Clark & Co''