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All you need to know about hypothecation

February 16, 2022
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This article has been written by Pooja Wagh, pursuing a Diploma Course in Advanced Contract Drafting, Negotiation, and Dispute resolution from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho), and Arundhati Das (Intern at Lawsikho). 

This article has been published by Shoronya Banerjee.

Introduction

Goods financed by banks in India are often hypothecated to the bank as security/ collateral till the loan covering it is repaid by the borrower. Hypothecation is used when a debtor wants to obtain a loan and use a certain property or asset as a security or collateral. It can help reduce mortgage fees and interest and help those who may not look their best on paper to obtain a loan. This article deals with everything you need to know about hypothecation. If you are someone who wonders if hypothecation is the best route for you to secure financing, this article is for you!

What is hypothecation?

Hypothecation generally means a fixed or floating charge on certain types of immovable properties and tangible movable properties, whether existing or future, which is created by a security provider in favour of a lender without actual delivery of possession of the underlying asset to the lender. Hypothecation comes into the picture when an asset is pledged as collateral to secure a loan. Income generated by the asset such as title, possession or ownership rights, etc is not given up by the owner of the asset. However, if the terms of the agreement are not met, the lender can seize the asset.

For example, a rental property may undergo hypothecation as collateral against a mortgage issued by a bank. The bank has no claim on rental income that comes in while the property remains collateral. However, the bank may seize the property if the landlord defaults on the loan.

You can ease your lender’s concerns and receive mortgage approval by offering other assets as collateral. You do entertain the risk of losing your piece of collateral when you are entering into a hypothecation agreement, whether it is for commercial or residential investments. Therefore, you need to be prepared to lose the asset if you are unable to repay your lender.

When are hypothecation agreements used?

The hypothecation agreement between the borrower and the lender isn’t a verbal agreement. Rather it is done through a document called hypothecation deed. A hypothecation agreement or hypothecation letter specifies the terms of the hypothecation and conclusively determines the rights and liabilities of parties to the agreement. The most common use of hypothecation is in the financing of cars and motorcycles in India as well, as while purchasing commercial real estate property. Often, hypothecation is used when a debt is to be secured and the creditor asks for collateral or security of sorts to help mitigate his risk. Hypothecation is also widely used in consumer and business finance, in the financial industry as well as in the investment market. 

Hypothecation in investing

Hypothecation is most commonly used for real estate investments. Lenders often require additional collateral with commercial real estate investments. These types of investments and properties can pose a higher risk because the loan payment relies on the success of a commercial business. The lender may request collateral of higher monetary value depending on the perceived value of the investment location or type of property. There are several reasons why you will want to make a hypothecation agreement instead of other agreements. The reasons include the following:

1. Reduction of down payment

The amount of down payment that a borrower owes can be reduced by hypothecating an asset because the borrower is pledging a high-value asset to guarantee his loan, rather than in a traditional mortgage, which uses loan-to-value ratios and credit score to vet a borrower. Hence, borrowers choosing to hypothecate an asset to secure a loan may be eligible for reduced down payments and this can make it easy to secure financing.

2. Retain the title

Borrowers can retain the title, i.e. total ownership rights of their hypothecated assets. If you are sure that you will be able to pay off your loan, you don’t need to worry about the possibility of a third party holding the title to your asset.

3. Greater security for lenders

Hypothecation provides security for lenders on high-risk loans, especially for commercial mortgages where the loan payment relies on the success of a commercial business.

Difference between hypothecation, pledges, and mortgage

Hypothecation is creating a charge against the security of movable assets. The possession of the security remains with the borrower. In case of default by the borrower, the lender (i.e. to whom the goods/security has been hypothecated) will have to first take possession of the security and then sell the same. For example, cars/vehicles remain with the borrower but the same is hypothecated to the bank or financer. In case, the borrower defaults, the bank takes repossession of the vehicle after following due process of law. Generally, hypothecation also covers loans against stock and debtors. Sometimes, borrowers may, without authorisation, sell goods hypothecated to a bank in which case a bank may convert the goods to a pledge.

Pledge is used when the lender (pledgee) takes actual possession of assets (i.e. certificate, goods). Pledge is movable security and the possession of the security remains with the lender (i.e. the pledgee). In this case, the pledgee retains the possession of the goods until the pledgor (i.e. the borrower) repays the entire debt amount. In case there is default by the borrower, the pledgee has a right to sell the goods in his possession and recover outstanding dues. Some examples of pledging are gold/jewellery loans, advance against goods/ stock, advances against National Saving Certificates, etc.

A mortgage is immovable security, which may include land, buildings, factory premises, godown/ warehouse, or anything that is attached to the earth or something permanently fastened to anything that is attached to the earth. The possession of the security in the mortgage usually remains with the borrower. Hypothecation is movable security (e.g. stocks, accounts receivables, small machines, etc) and the possession of the security remains with the borrower. The tenure of hypothecation is generally shorter than the tenure of home mortgage loans, like in the case of the tenure of a vehicle, and it is renewable after a year or half-year. In a mortgage, loans are of longer tenure as compared to loans against hypothecation and the tenure varies from 10 to 20 years.

Indian laws covering hypothecation

Previously, hypothecation was not defined for a long time under Indian law and it was more on the basis of practice and usage. However, now under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests Act (SARFAESI), hypothecation is defined as “a charge in or upon any movable property, existing or future, created by a borrower in favour of a secured creditor without delivery of possession of the movable property to such creditor, as a security for financial assistance, and includes floating charge and crystallization into fixed charge on movable property.”

Formalities for creation of hypothecation

In hypothecation, a “deed of hypothecation” is executed by the security provider in favour of the lender. The charge created under the deed of hypothecation is governed by the terms of the document, which provides in detail the powers and provisions safeguarding the interest of the lender. Hypothecation over a motor vehicle must be noted on the registration certificate of the motor vehicle.

The other formalities for hypothecation include payment of appropriate Stamp Duties as per rates in each state and in case of companies, filing with ROC will be required. After 2016 and the formation of CERSAI (under SARFAESI) Central Registry of Securitisation and Asset Construction and Security Interest of India, a government body set up for such purpose, it is mandatory to file creation, modification, or satisfaction of security interest in hypothecation of plant and machinery, stocks, book debts, and receivables.

How is hypothecation removed?

You can remove the hypothecation by paying off the entire loan amount. The bank will issue a No Objection Certificate (NOC) to you. This document will state that no dues are pending. You can submit the copies to the Regional Transport Authority and the insurance company so that the registration and insurance can be converted in your name instead of the bank’s name.

Conclusion

Hypothecation is a way in which the borrower can raise funds by providing movable security as collateral. The borrower still gets to use it since the possession usually remains with the borrower himself. This loan (hypothecation) is provided by either the bank or the financer at a rate lower than the unsecured loan as it provides a sense of security to the lender. However, the lender takes a risk as there may be instances where the borrower sells off the hypothecated asset without the knowledge of the lender. To provide protection to a large extent to both, i.e., the borrower and the lender, the lender shall conduct periodic checks and the parties shall add proper clauses in the hypothecation agreement.

References

  1. https://www.investopedia.com/terms/h/hypothecation.asp
  2. https://www.upnest.com/1/post/hypothecation-agreement/
  3. https://www.masterclass.com/articles/hypothecation-real-estate-explained#3-advantages-of-hypothecation-agreements

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