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Renegotiation in the Common Law Mortgage and the Impact of Equitable Redemption

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  • Lynn Fisher

Abstract

This paper seeks to fill a gap in the real estate finance literature by linking the well-known history of the Anglo–American mortgage recorded by legal scholars with the recent literature on security design and incomplete contracting in order to explain and evaluate several unique features of the mortgage. In particular, we investigate how a conditional transfer of ownership to a lender and the institution called the equity of redemption affect mortgage renegotiation and therefore the value of mortgaged real estate. Given the governance of the common law mortgage, we show that a mortgagor may not be able to renegotiate his mortgage debt in order delay repayment when faced with a re-investment opportunity during the life of the mortgage. The failure to optimally renegotiate the mortgage does not necessarily result in foreclosure but may result in underinvestment. Therefore, an additional period of time between default and foreclosure, known as a period of equitable redemption, may allow the mortgagor to accrue sufficient cash flow to not only avoid foreclosure but to mitigate underinvestment in non-default states. Since this extra period of time may not be achievable ex post due to a hold-up problem, its inclusion ex ante may be welfare improving. Copyright Springer Science + Business Media, Inc. 2006

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  • Lynn Fisher, 2006. "Renegotiation in the Common Law Mortgage and the Impact of Equitable Redemption," The Journal of Real Estate Finance and Economics, Springer, vol. 32(1), pages 61-82, February.
    • Handle: RePEc:kap:jrefec:v:32:y:2006:i:1:p:61-82
    DOI: 10.1007/s11146-005-5178-8
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    References listed on IDEAS

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    1. John P. Harding & C.F. Sirmans, 2002. "Renegotiation of Troubled Debt: The Choice between Discounted Payoff and Maturity Extension," Real Estate Economics, American Real Estate and Urban Economics Association, vol. 30(3), pages 475-503.
    2. Matthew J. Baker & Thomas J. Miceli & C.F. Sirmans, 2008. "An Economic Theory of Mortgage Redemption Laws," Real Estate Economics, American Real Estate and Urban Economics Association, vol. 36(1), pages 31-45, March.
    3. Oliver Hart & John Moore, 1998. "Default and Renegotiation: A Dynamic Model of Debt," The Quarterly Journal of Economics, President and Fellows of Harvard College, vol. 113(1), pages 1-41.
    4. Ambrose, Brent W & Buttimer, Richard J, Jr, 2000. "Embedded Options in the Mortgage Contract," The Journal of Real Estate Finance and Economics, Springer, vol. 21(2), pages 95-111, September.
    5. James B. Kau & Taewon Kim, 1994. "Waiting to Default: The Value of Delay," Real Estate Economics, American Real Estate and Urban Economics Association, vol. 22(3), pages 539-551, September.
    6. Aghion, Philippe & Hermalin, Benjamin, 1990. "Legal Restrictions on Private Contracts Can Enhance Efficiency," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 6(2), pages 381-409, Fall.
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    8. Aghion, Philippe & Hermalin, Benjamin, 1990. "Why Legal Restrictions on Private Contracts Can Enhance Efficiency," Department of Economics, Working Paper Series qt4j76f10g, Department of Economics, Institute for Business and Economic Research, UC Berkeley.
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    Cited by:

    1. Matthew J. Baker & Thomas J. Miceli & C.F. Sirmans, 2008. "An Economic Theory of Mortgage Redemption Laws," Real Estate Economics, American Real Estate and Urban Economics Association, vol. 36(1), pages 31-45, March.
    2. Bruce Gordon & Daniel Winkler, 2015. "Statutory Right of Redemption and the Selling Price of Foreclosed Houses," The Journal of Real Estate Finance and Economics, Springer, vol. 51(3), pages 365-397, October.

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