What is difference between mortgage and hypothecation?

Answer 1

Hypothecation is to pledge personal property, or a ship, as security for a debt without transferring possession or title.

A mortgage is a loan secured by real property. A person who grants a mortgage either transfers title to the lender or permits a voluntary lien on the property. Hypothecation Last modified on 24 May 2012 at 18:11

A Hypothecation is a charge, which is resorted to by the borrower, where transfer of possession of property from the borrower to the banker or creditor is either impracticable or inconveinient. In other words, the borrower retains the ownership of the security or collateral pledged to the banker. Possession remains witht the borrower, but the ownership of the property remains with the banker till the loan is closed in full.

For example, when a borrower takes a bank loan to purchase a laptop or colour TV, an equitable charge, known as hypothecation, is created in favour of the banker. Here, though the possession of the laptop and the TV will be with the borrower, the ownership remains with the banker till the entire loan is closed. In other words, it is "hypothetically" controlled by the banker or creditor who has the right to seize possession of the goods secured to him when the borrower defaults in making payment of the loan.

A mortgage is the transfer of interest in a specific immovable property by one person to another for the purpose of securing a loan or advance of money. The person who transfers the interest in a specific immovable property is known as the mortgagor and the person to whom it is transferred is called the mortgagee. The instrument or the note through which the mortgage is effected is called mortgage deed.

The main point to be noted is that, in a mortgage, the mortgaged property is not transferred to the mortgagee. It usually remains with the borrower or mortgagor. Only interest in the mortgaged property is transferred from the mortgagor (borrower) to the mortgagee (the banker).

On repayment of the loan, the interest in the property is re-transferred to the mortgagor (borrower). However, when the borrower fails to repay the loan dues, the mortgagee (banker) gets the right to sell the property and recover his loan dues from the sale proceeds of the property.

The differences between a hypothecation and a mortgage is as follows:

1. A Hypothecation refers to a movable property, whereas a mortgage generally refers to an immovable property.

2. A hypothecation can be created without executing a document. But for creating a mortgage, documents have to be executed.

3. In a hypothecation legal interest is not transferred to the creditor (banker) whereas, in a mortgage, legal interest in the mortgaged property is transferred to the creditor (banker).

M.J. SUBRAMANYAM, XCHANGING, BANGALORE