What forms of security can be granted over immovable and movable property? What formalities are required and what is the impact if such formalities are not complied with?

Restructuring & Insolvency (3rd edition)

Canada Small Flag Canada

Since the scope of immovable property is a matter of provincial law, reference should be made to the applicable provincial laws in the jurisdiction where the property is situated and, in particular, if the property is situated in the Province of Québec. Generally, real estate is classified as immovable property, while fixtures attached to real property may or may not be considered immovable property.

Common Law Jurisdictions: Available Forms of Security and Required Formalities

Immovable/Real Property

In Canadian common law jurisdictions (all provinces except Québec), security over immovable property can be granted by way of a:

i) Mortgage. This is generally used where there is a single piece of real property that is financed by a single lender.

ii) Debenture. This is commonly used in commercial lending transactions to cover multiple pieces of real property, as well as movable property. Like a mortgage, there is often only one lender.

iii) Trust deed. This is commonly used in sophisticated bond financings and syndicated loan transactions where many lenders are involved.

In addition to the above, in very rare circumstances a person without a registered mortgage may be able to assert an equitable mortgage or interest in immovable property. This can occur where the original mortgage documentation is defective in some way and the court is asked to deem the mortgage as an equitable mortgage.

A security interest granted over immovable property must be in writing and registered against title to real property to be enforceable. Each Canadian province has its own real property legislation and registry system governing the validity and enforceability of mortgages registered in its jurisdiction. Registration of a charge in the applicable real property registry system constitutes notice of a security interest.

Movable/Personal Property

In Canadian common law jurisdictions (all provinces except Québec), creditors can take security over movable property pursuant to a properly executed and registered security agreement. Types of security agreements include:

i) General security agreements: whereby the debtor grants the secured party a security interest over all of the debtor's present and after-acquired personal property; or

ii) Chattel mortgages or equipment leases: using this method, the debtor grants a security interest over specific assets.

The most typical form of security over personal property is a general security agreement which is given legal effect by execution by the parties. Each provincial statute has rules governing how a security interest may attach to personal property. Perfection of a personal property security interest is governed by provincial statutes but typically takes the form of registration or possession.

For movable property, most Canadian provinces have adopted a personal property security act (“PPSA”), which is loosely modelled on Article 9 of the Uniform Commercial Code and which is structured to apply to every transaction which creates (in substance) a security interest in personal property without regard to the particular type of security involved.

To be enforceable against third parties, a security interest in the debtor's personal property must be both attached and perfected.

Attachment of a security interest occurs when all of the following are performed:

i) value is given;

ii) the debtor has acquired rights in the secured asset over which the security is being granted;

iii) a written security agreement is signed by the debtor; and

iv) the written security agreement provides a clear description of the secured asset over which the security interest has been granted.

Perfection of a security interest can be achieved through:

i) Registration under the PPSA in the applicable electronic registration system; or

ii) Possession by the secured party, if the secured asset is any of the following: (a) chattel paper; (b) tangible goods; (c) instruments; or, (d) negotiable documents of title.

Investment property can be perfected by control. Control is obtained when a secured party can sell the property without any further action by the debtor. Depending on the type of investment property, this can be achieved by either becoming the entitlement holder, or entering into a control agreement.

Investment property includes certificated or uncertificated securities, a security entitlement, securities accounts, future contracts and future accounts.

Québec: Available Forms of Security and Required Formalities

Under Québec private law, it is said that all property of a debtor, whether moveable or immoveable, tangible or not, present or future, is the “common pledge of its creditors”. This means that, in principle, creditors may institute judicial proceedings to cause the property of their debtor to be seized and sold to the extent required to satisfy their claims. The two main exceptions to this principle are (i) property exempt from seizure, either by contract or by statutory effect, and (ii) the existence of “legal causes of preference”. “Legal causes of preference” are prior claims and hypothecs, and they are the main forms of security which may attach to both immovable and movable property in Québec.

Prior claims and hypothecs are, in general terms, the Québec equivalent of “liens”. Some prior claims and all hypothecs are “real rights” in that they attach to property regardless of who holds it, whether it be the debtor or otherwise. A phrase often said is that they “confer on the creditor the right to follow the property into whatever hands it may come”, as long as the obligation whose performance they secure subsists.

Prior Claims

Prior claims are certain claims for satisfaction of which a creditor is preferred over all others, even the hypothecary creditors (discussed below). Under Québec private law, prior claims are the highest ranking claims, regardless of the moment at which they are created.

Prior claims exist by the effect of the law alone. One cannot contract into, or out of, prior claims, except, in that latter case, with the consent of the holder of the prior claim, which of course is rarely obtained without satisfaction of the entire claim.

Unlike hypothecs (with the exception of the “construction hypothec”, discussed hereafter), prior claims may exist even without being published in a public registry. This is why they are often called “occult security”, and why their existence sometimes poses great legal risks and is the subject of important legal opinions.

Among all prior claims, Government claims for amounts due under fiscal and taxation laws are those that are the most susceptible to attach to one’s property.

Hypothecs

The term “hypothec” is, outside of Europe, almost exclusively used in Québec. It encompasses the common law equivalents of, inter alia, mortgages, non-possessory liens over movables or immovables, and legal or equitable charges.

In Québec private law, hypothecary claims rank senior to unsecured claims but junior to prior claims. Between themselves, in principle, hypothecary creditors rank according to the date of publication of their hypothec: the older the publication, the higher the rank. One major exception to this principle is the “construction hypothec”, as will be discussed below.

Hypothecs may be “legal” or “conventional”, depending on whether they are created (i) by the effect of the law alone (“legal”), for example, a construction hypothec, a legal hypothec of the State for sums due under fiscal and tax laws, a legal hypothec for the holder of a claim resulting from a judgment, etc., or (ii) by contract (“conventional”).

Conventional hypothecs vary depending of the property on which they attach. The most common types of conventional hypothecs are immoveable hypothecs, hypothecs on movable tangible property (with or without delivery), hypothecs on claims, hypothecs on securities, and floating hypothecs. Some may only be granted by businesses and all must comply with their own specific requirements; for example, an immoveable hypothec is not valid if it is not granted by notarial act en minute. However, all conventional hypothecs must satisfy the following conditions in order to be valid and enforceable: (i) the grantor (which could be the debtor or a third-party) must be able to validly alienate the hypothecated property (e.g. has valid title and may validly consent to its alienation); (ii) the contract must be in writing and expressly state the maximum amount of the hypothec, regardless of whether or not the secured obligation’s amount may be precisely determined; and (iii) the hypothec must be published in the appropriate public registry.

Effects of Non-Compliance

In all Canadian jurisdictions, if the required registration requirements are not complied with, the creditor’s security interest could be ineffective against the debtor’s property. That creditor would then rank as an unsecured creditor (except in relation to certain specific types of secured assets that can be perfected by possession or control) should the debtor become insolvent or bankrupt.

British Virgin Islands Small Flag British Virgin Islands

BVI companies are usually holding vehicles, either on a stand-alone basis or as part of a wider group structure. Where BVI companies are used in holding structures, the assets that are generally the subject of a security interest are shares in BVI companies. When seeking to raise capital through debt financing, there are a number of features of BVI law that make it particularly attractive to lenders to structure a transaction through a BVI entity, or to use a BVI company as a security provider.

There are seven types of security interest that can arise under BVI law: legal mortgage, equitable mortgage, equitable charge (fixed or floating), pledge, legal lien, equitable lien, and hypothecation or trust receipt. Of these, mortgages, equitable charges, and pledges are most commonly used in relation to shares.

There are several other arrangements that parties can put in place that have the effect of giving quasi security but which do not actually create a proprietary security interest. For example, it is possible to grant a power of attorney or conditional option in favour of the secured party relating to shares, to enter into a retention-of-title agreement, or to execute undated share transfers or director’s resignations/appointments. While these methods provide protection for the secured party, they do not confer a proprietary interest in the assets to which they relate, and for this reason they are not subject to the same legal considerations the courts have developed in the context of conventional proprietary security interests.

In order for a security interest to arise, it is generally necessary that six conditions be met:

  1. there must be an agreement for the creation of the security. In some cases this agreement must be in writing (as where the interest to be created is a legal mortgage), and in some it must be by deed (where a legal mortgage is created in relation to land);
  2. the collateral must be identifiable as falling within the security;
  3. the chargor must have the power to create the security interest;
  4. there must be an obligation of the chargor that the collateral is intended to secure;
  5. any contractual conditions for the creation of the security must be satisfied; and
  6. in the case of a pledge or a lien, possession of the collateral has been transferred.

A failure to comply with these requirements will generally mean that no security interest will arise.

In addition, if the security interest to be created is a legal mortgage, the security must be perfected by the transfer of title to the collateral to the mortgagee (though there are exceptions in relation to land, ships, and aircraft). A problem arises where the collateral for the mortgage is in the form of bearer shares, because BVI law requires that these be held at all times by a licensed custodian. In practice, this conceptual difficulty has been overcome by the custodian acting as nominee for the mortgagee rather than the mortgagor. The position is simpler in relation to registered shares: transfer instruments are executed and the register of members is updated to show the mortgagee as the new owner of the shares.

If a legal mortgage is not perfected, it will take effect as an equitable mortgage. An equitable mortgage may also be expressly created. In some cases, the mere deposit of title documents can give rise to an equitable mortgage; however, this rule does not apply in relation to shares or land in the BVI. The deposit of share certificates may, however, give rise to a pledge.

An equitable charge may be fixed or floating. Floating charges are more useful in the BVI than in some other jurisdictions: whilst they are subject to the costs of liquidation and the claims of preferential creditors, in reality there are rarely any preferential creditors and where there are, they are usually small. In addition, a properly executed and registered floating charge will take priority over fixed charges if the floating charge contains a negative pledge by the charger - and floating charges will only generally be voidable by liquidators if entered into at a time when the company was insolvent (on the cash-flow or balance sheet basis).

A pledge can only be created over a physical asset, because it requires that the secured creditor take possession of the collateral itself, in addition to the conditions outlined above. Again, a difficulty arises in relation to pledges over shares in BVI companies: as stated above, bearer shares must be deposited with a custodian, so cannot be given to the creditor; and creating a pledge by depositing a registered share certificate will create security over the certificate itself and not the shares which are located in BVI. As in relation to legal mortgages, however, the conceptual problem in relation to bearer shares may be overcome by the custodian’s agreeing to act as nominee or agent for the creditor.

Registration of security interests granted by companies is optional but not mandatory, unless the collateral is land, in which case, the security interest must be registered within three months. If this deadline is not observed, a fine is payable but the security remains valid; however, unregistered security rights will be subordinated to registered charges as well as to unregistered charges that were created before the BVI Business Companies Act 2004 (BCA) commencement date, and may encounter difficulties as against a liquidator: see section 166 of the BCA and Re Bond Worth Ltd [1980] Ch 228.

Failure to perfect a security interest, whether, e.g. by transfer of the asset in the case of legal mortgages, or by possession of the collateral in the case of pledges, does not render it void or even voidable. It does, however, increase the risk that subsequent interests may take priority, with the effect that the creditor will have little or no recourse to the collateral. As such, it is advisable for a creditor to protect their position, by registering their security interest.

Cayman Islands Small Flag Cayman Islands

Security rights that may be granted over property in the Cayman Islands include:

  • Legal mortgage. A legal mortgage arises when a creditor lends money to the debtor and holds legal title to the debtor's property as security for the debt. The debtor will retain possession of the property, and the mortgage is discharged upon full payment of the debt.
  • Equitable mortgage: An equitable mortgage arises where the beneficial or equitable interest in the debtor's property subject to the mortgage is transferred to the lender, but the debtor retains the legal title and possession of the property. An equitable mortgage will not take priority over a third party purchaser of the property, who purchases the property for value, in good faith, and without notice of the lender's interest in the property.
  • Charge. Unlike a mortgage, title to the debtor's property is not transferred to the lender pursuant to a charge. Rather, the lender is granted rights over the debtor's property as security for the debt, such as the right to take possession if the debtor defaults on the loan. A charge may be fixed or floating. A fixed charge attaches to specific assets which cannot be sold by the debtor without the lender's consent. Under a floating charge, the debtor can deal with the assets subject to the charge until a default occurs. Upon an event of default, the charge crystallises over the debtor's property at the time of default and becomes a fixed charge, with the lender having the power to sell the assets in order to satisfy the debt.
  • Lien. A lien arises by operation of law and may be used when a creditor is in possession of the debtor's property and is owed monies for services provided to the debtor. The creditor cannot sell the property to satisfy the debt, but can retain possession of the property until the debtor makes payment.
  • Pledge. Under a contract to pledge, the debtor's property is deposited with the lender as security for a debt. The right to the property vests in the lender to the extent necessary to secure the debt, and the lender has the power to sell the property in the event of a default by the borrower.

Legal mortgages must be created by deed and validly executed, and equitable mortgages and fixed charges must be in writing (and are typically created by deed). There may also be formalities in the debtor's articles of association in relation to the process to be followed for the company to grant security over its assets.

The Cayman Islands has centrally maintained ownership registers for land, ships, aircraft and motor vehicles on which mortgages or charges can be registered. Any third-party purchaser will be deemed to have notice of any interest registered at the time of the purchase of the asset and will acquire the asset subject to the creditor's security interest.

Cayman Islands companies are required to maintain a register of mortgages and charges, which is available for inspection by any creditor or member of the company but is not publicly searchable. The security does not have to be recorded on the register in order to be valid, and failure to record the security on the register will not automatically render the security void. However, the directors, managers or officers of the company can face a fine if the security is not recorded on the company's register. Any lender to a Cayman Islands company should review the company’s register of mortgages and charges prior to making a loan, and ensure that the register is updated following the loan being made.

China Small Flag China

Under Chinese law, the forms of security that can be granted over movable property are mortgage, pledge and statutory lien, whereas the very form of security over immovable property is mortgage. The effectiveness of a mortgage on immovable property is conditioned upon registration of the mortgage with the competent authority, and failure to complete the registration will disqualify the creditor from being compensated in priority. For movable property, registration of mortgage is not a prerequisite for its effectiveness, but a registered mortgage may protect the creditor from a claim of a bona fide third party. Pledge over movable property will not come into effect until the property is transferred to the pledgee, and without the transfer, the pledge will be deemed not granted. Lien can only be created under law, and the lien holder of movable property must legally take possession of the property.

Denmark Small Flag Denmark

Immovable property

In Denmark the three forms of security that may be granted over immovable property listed below are those most widely used:

  • mortgage

    The mortgage is typically issued by a creditor or a credit institution where a property is mortgaged with the payment of a specific amounty in favour of the creditor/credit institution for a loan. The debtor will typically service the debt.

  • indemnity bond

    The indemnity bond is a mortgage where the debtor’s property is mortgaged with the payment of a maximum sum in favour of a specific creditor in respect of a loan in respect of which the final amount owed has not yet been fixed. The indemnity bond is typically provided by the debtor as security for an overdraft facility.

  • owner’s mortgage

    An owner’s mortgage is a mortgage where the debtor reserves a mortgage of a fixed amount on its immovable property and provides this as security for an underlying debt owed to the creditor, if the underlying debt is repaid, the owner’s mortgage may serve as security for a new debt.

  • Movable property

    As a starting point, security granted over movable property depends on the type of movable property. The most widely used types of security over movable property are:

  • company charge

    Company charge means that the debtor grants a charge in favour of the creditor over, for instance, the inventory at any time, operating equipment, goodwill and amounts owing from sale of goods and services. The company charge is a type of a floating charge that does not prevent that assets under the charge are separated from the debtor’s business during operations.

  • Receivables charge

    Receivables charge means that the debtor provides security in favour of the creditor over receivables from sale of goods and services. The debtor’s receivables become included in the receivables charge as they are created and deleted from the charge as they are repaid.

  • chattel mortage

    The chattel mortgage may be created on a specific chattel, for instance a car or a machine. For traders that carry on their business activities from leased premises chattel mortgages may be created on the operating plant and operating equipment situated at the business’s address without any separate specification.

  • charges on rights

    By agreement charges may be created on rights, for instance amounts owing, instruments of debt, shares, securities etc.

  • pledge

    A pledge may be granted over assets in respect of which the security in favor of the creditor is created by transfer of physical assets to the creditor.

It is a characteristic of the above types of security model – except from the last two – that the creditor must register the security. If the creditor does not have the security registered, the creditor will not be protected against the debtor’s other creditors or assignees in good faith but only rely on the charge agreement between the parties.

In respect of a charge on rights the security is established by information to the issuer of the right in question.

In respect of a pledge the creditor’s security is established by physical dispossession of the pledged assets.

France Small Flag France

  • Security on real estate property

The two most common types of security over real estate property are the mortgage (hypothèque) and the lender’s lien (privilège du prêteur de deniers). Both require a notarial deed and must be registered in order to take rank. A mortgage only takes rank upon the date of its registration, while a lender’s lien takes rank from the date of the acquisition provided that it is registered within two months (if not, it takes rank upon registration, like a mortgage). In either case, enforcement is effected by means of a court-supervised public auction or by court-ordered attribution of the property to the secured creditor (subject to the creditor paying the amount, if any, by which the value of the property as appraised independently exceeds the secured amount). In the case of a mortgage only, enforcement may also, if agreed in the mortgage deed (or at the time of enforcement), result from the direct appropriation of the secured property by the secured creditor (subject to payment of any excess as in the case of court-ordered attribution). Direct appropriation is seldom agreed by borrowers in normal financing circumstances, but may more likely be imposed in a restructuring context.

A French trust arrangement (fiducie) may also be used for security purposes in relation to real estate. In a fiducie, one or several settlers transfer assets, rights or security interests to a trustee (fiduciaire) that manages those assets, according to the terms of the fiducie agreement, for the benefit of designated beneficiaries.The fiducie must be registered with the French tax authorities within one month of signing. Compliance with this filing obligation is necessary to ensure validity and perfection of the security.

  • Security on movable property

One of the main types of security over movable property is the pledge (known as gage in respect of tangible assets and nantissement in respect of intangible assets). Failing performance of the secured obligation, the pledged assets may be sold. Enforcement of the pledge against third parties is subject to a written instrument so enabling the debtor to gain priority in insolvency proceedings. A “Dailly assignment of professional receivables” or a French trust arrangement may also be used to secure a payment.

  • Security on shares

The most usual types of security are the pledge over shares (nantissement de parts) or over company’s securities accounts (nantissement de comptes-titres) depending on the corporate form of the company. As such, pledgors will fictitiously retain the shares/financial securities until they are fully paid up by the debtor.

Germany Small Flag Germany

Securities over immovable property

There are two alternative instruments to charge real estate as collateral:

  • Mortgage (Hypothek)
  • Land charge (Grundschuld)

Differences: While the land charge simply determines a specific amount to be paid out of the real estate, the mortgage is accessory to a specific secured payment claim. The mortgage thus elapses with the satisfaction of the secured claim and transfers together with the secured claim in case of an assignment. Therefore, the land charge is more flexible and the most common security instrument regarding real estate.

Generally speaking, any type of collateral over immovable property requires registration with the land register (Grundbuch). The security is void if it is not registered. Such registration requires a notarized authorization by the owner. If the collateral is registered as certificated, the completion of the security also requires the owner to hand over the certificate. Usually the secured party also requests that the real estate owner submits to immediate enforcement of the encumbrance by way of a notarial deed; otherwise, the secured party requires a judgement or other enforcement title in order to enforce its security.

Securities over movable property and receivables:

The retention of title right (Eigentumsvorbehalt) allows a seller to retain title over the respective movable property as security for its claims until the agreed secured claims have been settled. The seller and purchaser must agree on the retention of title right in the purchase agreement. Depending on the specific structure, the retention of title right can provide a right for segregation of the relevant asset if the purchaser becomes insolvent.

Transfer of ownership by way of security of movable property (Sicherungsübereignung) is the most common type of security over movable property, because the debtor / buyer may retain the possession of the movable asset and keep using and producing with it. Such arrangement requires both a transfer agreement and a security purpose agreement. Moreover, the assets serving as security must be clearly identifiable.

The (chattel) pledge (Faustpfandrecht) regarding movable property is less common, as the possession of the asset must not remain with the debtor. This arrangement requires a pledge agreement and the transfer of possession of the movable property, and the security is accessory to a specific secured payment claim.

The assignment of receivables for security purposes (Sicherungsabtretung) is an arrangement whereby security is granted over receivables owed to the debtor.

Receivables may also be pledged for security purposes. Such arrangement is less common, because– in contrast to security assignments, – third parties must be notified of the pledge in order to complete this security. Moreover, this arrangement is not practicable for rolling receivable portfolios.

Other transferable rights may be pledged, and the specifics depend on the nature of the right. For example, pledges over shares in a German limited liability company (GmbH) are only valid if notarized.

Bermuda Small Flag Bermuda

Forms of security granted over immovable property

Mortgages – of which there are two types:

Legal mortgage: This is where the mortgagee holds the legal title to the mortgagor’s property as security for the relevant debt. Although the mortgagor relinquishes legal title to the property it remains in possession of it, and legal title then reverts to the mortgagor once the secured debt has been fully extinguished.

Legal mortgages over certain property must be created by deed and validly executed.

Equitable mortgage: here the mortgagor merely transfers the beneficial or equitable interest in its property to the mortgagee and retains both possession of the property and legal title. The disadvantage of an equitable mortgage is that it does not take priority over a third party who acquires legal title to the property in good faith and for value (for example, where that third party was unaware of the security interest).

Equitable mortgages and fixed charges (see below) must be in writing and are frequently (though not exclusively) created by deed. Deeds can be executed either under company seal or by a duly authorised signatory or signatories.

Fixed charge

The holder of a fixed charge over an asset has the right to take possession of the charged asset, as well as a right to sell that asset, when a specified event of default occurs. The legal title over the charged asset is not transferred to the creditor, although (i) the charged asset is not deemed to be an asset of the debtor in the event of an insolvency; and (ii) the debtor cannot dispose of any property that is subject to a fixed charge without the creditor's consent.

If an event of default occurs, the creditor is at liberty to sell the charged property and use the proceeds to satisfy the outstanding debt. A creditor in possession of a fixed charge is entitled to sell the charged asset without reference or notice to other creditors and regardless of whether the debtor is subsequently liquidated.

The importance of registration of interests/effect of non-compliance

Mortgages and charges over real property in Bermuda should always be registered with the Registrar General. It is also possible for charges to be registered with the Registrar of Companies. This includes charges on assets located outside of the jurisdiction.

In the event that a mortgage or charge over real property is not registered with the Registrar General, that mortgage/charge will not have priority over a registered mortgage/charge over the same real property that has been created later in time.

With regard to companies, if a charge created over certain property and assets belonging to a company is not registered with the Registrar of Companies, then the relevant charge will not have priority.

Specific statutory registration rules apply to mortgages over certain assets, such as aircraft and ships.

An important point to note is that a failure to register a security interest in Bermuda does not affect the legal validity or enforceability of that security interest. Registration of the security interest only goes to the issue of priority.

Forms of security granted over movable property

Mortgages

As above.

Fixed charges

As above.

Floating charges

A floating charge can be taken over a class of assets that change periodically, and in many circumstances a floating charge is taken over a chargor’s entire business. A floating charge does not attach to a particular asset, but “floats” over one or a range of assets. A chargor subject to a floating charge can, subject to its terms, deal with any charged assets without the chargee’s consent, but on the occurrence of a specified event of default the floating charge will crystallise and convert into a fixed charge (and attach to the chargor’s assets).

In the event of the bankruptcy or liquidation of a debtor subject to a floating charge, the chargee’s claim will take priority over the claims of unsecured creditors.

As is the case for immovable property (see above, Immovable Property), the date of registration of the security governs the order of priority. Failure to register the applicable security over movable property may result in a mortgage or charge not having priority over register mortgages or charges that were created later in time. However, failure to register does not make the security invalid or unenforceable.

Lien

A lien gives a creditor the right to retain possession of an asset until the debt is satisfied. However, the creditor is not entitled to sell the asset if the debtor defaults.

Liens can be created by contract, statute (e.g. in the case of certain types of creditors), and at common law.

Pledge

A pledge gives a creditor the right to take possession of the pledged asset and to sell it in the event of the debtor's default.

Pledges are created by contract. They are then perfected by actual or constructive delivery of the pledged asset to the creditor (e.g. the physical delivery of the share certificates of pledged shares to the pledgee).

Guernsey Small Flag Guernsey

Immovable property is defined as property that cannot be moved from one place to another and which follows or is associated with the land.

Other than rentes foncières (that is, perpetual ground rents payable as a fixed annual sum and redeemable at the will of the debtor), security over real estate in Guernsey is taken as a hypothèque (that is, a legal right over the debtor's property in favour of the creditor), by either:

i. Rente hypothèque, securing a fixed annual sum; or

ii. Hypothèque conventionnel (bond).

In practice, rentes hypothèque are almost unknown and the bond has become the dominant form of security over real estate. The bond is a personal obligation to create a charge over the corpus of the debtor's assets (but in practice focused on immovable property) by acknowledging the debt to the creditor and (if appropriate) including a covenant to repay the sum with interest. The bond can be either a:

i. General charge: A general charge confers priority to the creditor over all other claimants to the immovable property belonging to the debtor at the time the bond is registered; or

ii. Specific charge: A specific charge confers priority to the creditor only over the immovable property specified in the bond.

A bond must be in writing and must be consented to by the debtor before the Royal Court of Guernsey sitting as a contract court (Contract Court) before being registered at the registry of the Royal Court (Greffe).

Documents (other than a testamentary disposition) consented to before the Contract Court do not need to be signed by the parties. However, this is frequently required by a creditor.

Following ratification by the Contract Court:

i. The bond is assessed for document duty of 0.5% of the secured amount, the fees of the Contract Court and registration fees.

ii. The document duty and fees are paid.

iii. The bond is registered in the Greffe, and available for public inspection to anyone wishing to conduct a search against the debtor.

A bond which is not ratified by the Contracts Court is invalid. Non-registration of the bond at the Greffe will render the security ineffective.

Movable property

Security may be taken over moveable property in Guernsey, with such property being either tangible or intangible in nature.

Tangible movable assets

The most common forms of security over tangible movable property are:

i. Lien. This is the right to retain another's property if an obligation is not discharged.

ii. Pledge. This is a bailment or deposit of personal property with a creditor to secure repayment for a debt or engagement.

iii. A landlord's right to priority for unpaid rent which is secured by movable property on the demised premises (tacite hypotheque).

iv. Reservation of title clause.

v. Mortgage (for example, over a ship and aircraft).

Intangible movable assets

The most common form of security over intangible movable property in Guernsey is a security interest under the Security Interests (Guernsey) Law, 1993 (the Security Interests Law). This can be created by a security agreement over any intangible movable property (other than a lease). The security interest can be created by the secured party being in possession of, under a security agreement:

i. certificates of title (such as securities); or

ii. policy documents (like a life insurance policy).

If title to collateral is assigned, express notice in writing of the assignment must be given to the assignees.

To be valid, a security agreement must:

i. be in writing;

ii. be dated;

iii. identify and be signed by the debtor;

iv. identify the secured party;

v. contain provisions regarding the collateral sufficient to enable its precise identification at any time;

vi. specify the events which constitute default; and

vii. contain provisions regarding the obligation, payment or performance to be secured, sufficient to enable it to be identified.

Failure to comply with any of these requirements does not necessarily render the security agreement void, but takes it outside of the scope of the Security Interests Law.

Ireland Small Flag Ireland

The most common forms of security granted over property in Ireland are summarised below:

  • Fixed Charge: this is a charge created by an obligor in favour of a creditor over a specifically identifiable asset to secure compliance with a debt or obligation owing by that obligor.
  • Mortgage: this involves the transfer of an obligor’s legal or equitable title to a property to a creditor or mortgagee to secure a debt or other obligation of the obligor, but subject to the obligor’s right to the return of the legal title once the secured obligation has been satisfied or the relevant debt has been redeemed (known as the “equitable right of redemption”).
  • Floating charge: this is an equitable charge created over all or specific categories of assets of a company only which converts or “crystallises” into a quasi-fixed charge either automatically or on notice of the occurrence of a specified event of default - a floating charge is usually granted over trading assets which change in quantity and value from time to time, such as stock, cash or receivables.
  • Pledge: this arises where the debtor delivers possession of goods to a creditor pending satisfaction of the debtor’s obligations – a creditor will usually have the power to sell the pledged assets where an event of default occurs.
  • Lien: a lien arises where a creditor has a lawful right to retain possession of an asset owned by another until the creditor has been paid in full by that person for services rendered – possession is critical to the existence of a lien and once possession is relinquished so is the lien.
  • Security assignment: this arises where a debtor assigns its rights under a contract to a creditor as security for a debt or obligation owing to that creditor – the assignment can be equitable (i.e. not on notice to the contractual counterparty) or legal in which case the assignment is perfected and notice is given to the counterparty.

Security over certain types of property must be filed with the Companies Registration Office in Ireland (the “CRO”) within 21 days of its creation. Failure to do so renders the charge void against any creditor or liquidator of the company. Where charges of the same nature are created over the same asset in favour of multiple creditors, priority is given to the creditor who files the notice first in time.

In the case of registered land, security interests must be registered with the Land Registry in Ireland. A floating charge over registered land is not registrable until after the charge has crystallised. Where security is provided in respect of unregistered land a notice must be registered in the Registry of Deeds. These registration give notice to third party purchasers that the property is secured in favour of a creditor.

Jersey Small Flag Jersey

Intangible movable property

  1. Financing international investment structures continues to be one of Jersey's principal business activities and Jersey remains a popular choice for both issuers or investment holding vehicles. For that reason Jersey has a well-developed legal framework designed to assist the UK and international secured lending industry.
  2. The focus for the finance industry is lending to Jersey special purpose vehicles, with wide ranging security interests being granted over shares in borrower vehicles, securities' accounts, contact rights and/or local bank accounts. A security interest may be created over all present and after-acquired intangible movable property or may be limited to specific items and accounts.
  3. Although not common, some pre-2014 security interest agreements are still in force. These are governed by the Security Interests (Jersey) Law 1983. Further advice should be taken in respect of these agreements.
  4. Post-12 January 2014 a security interest can only be created in Jersey situs property (commonly termed collateral) pursuant to the Security Interests (Jersey) Law 2012 (the "SIL"). A valid security interest must attach to the collateral and in order to be protected from third party interests on insolvency, must also be perfected.
  5. A security interest attaches when:

    (i) value has been given in respect of the security agreement;

    (ii) the grantor has rights in the collateral or has the power to grant such rights to the secured party; and

    (iii) either;

    (a) the secured party has possession or control of the collateral; and/or

    (b) the security agreement is in writing, signed by the grantor and contains an adequate description of the collateral. (SIL Part 3)

    (c) A security interest which has attached can be perfected by possession, control or by registration (SIL Part 3)

  6. A security interest perfected by registration requires a financing certificate to be lodged in the on-line and searchable Jersey security interest registry.
  7. A possessory security interest only operates to perfect a security interest in a documentary intangible movable.
  8. A security interest in securities perfected by control requires that the secured party becomes the registered holder of the securities (subject to an equity of redemption) or takes possession of the certificate issued in respect of the security.
  9. A security interest in a bank account perfected by control will typically require:

    (i) the account to be transferred into the name of the secured party with the written agreement of the grantor;

    (ii) the parties and the bank to agree that the bank will act on instructions from the secured party;

    (iii) for the account to be assigned by way of a security with notice of the assignment having been given to the bank; or

    (iv) the secured party is the bank which holds the account.

  10. A security interest in a securities' account perfected by control will typically require:

    (i) the securities' account to be transferred into the name of the secured party with the written agreement of the parties and the custodian of the securities' account;

    (ii) the parties and the custodian agree in writing that the custodian will act on instructions from the secured party; or

    (iii) the secured party is the custodian.

  11. Ships and aircraft

  12. The Jersey aircraft registry allows for the registration of private and corporate aircraft, aircraft engines and aircraft mortgages, and permits registration of aircraft engine mortgages. The register does not cater for commercial air transport aircraft. There is a separate regime for mortgages of ships. The mechanisms for creation and enforcement of ship and aircraft mortgages are not addressed herein.
  13. Other tangible movable property

  14. A Jersey law security interest can only be granted in respect of tangible movable property by way of pledge, which requires actual rather than deemed delivery. This maintains the customary law position of preserving the doctrine of apparent wealth, such that movables subject to existing security interests should not remain in the possession of the debtor as to do otherwise would give a misleading impression of a debtor’s credit-worthiness and apparent availability of the assets for further security.
  15. Failure to comply with formalities of creation of security interests

  16. In respect of intangible movables, a failure to comply with the formalities for attachment renders the security interest void. Failure to comply with the formalities for perfection means that the security interest is only effective between the grantor and the secured party, and not as against third parties including but not limited to insolvency appointees.
  17. In respect of tangible movables, failure to comply with the formalities for creation of an interest by way of pledge renders the security interest void.
  18. Immovable property

  19. Security can be taken over Jersey situs real estate interests by way of a hypothec. A hypothec is a registered interest in freehold property, leases of more than 9 years known as a contract lease, or an undivided share in a freehold property or a contract lease owned in common as opposed to jointly.
  20. The two principle forms of the hypothec are:
  21. A hypotheque judiciaire (an "HJ")

  22. This is created by registering an obligation with the Jersey Public Registry typically in the form of a:

    (i) promissory note;

    (ii) bond; or

    (iii) judgment debt, usually a consensual judgment debt.

  23. A hypotheque conventionnelle simple (an "HCS")

  24. The creation of an HCS typically occurs in the following limited circumstances:

    (i) when a property is sold and part of the purchase price is not paid to the seller but the HCS arises as an encumbrance representing the debt owed to the seller by the purchaser; or

    (ii) when the terms of borrowing in a real property transaction, with provision for security are sworn to before the Court. That the terms of the borrowing are before the Court makes them liable to be registered in the Public Register so that the HCS is unattractive for commercial or complex lending.

  25. It is notable that the HCS is itself immovable property, but an HJ is not.
  26. The Jersey Public Registry is a register of various interests including almost all immovable property transactions in Jersey created since it was established by Act of the States of Jersey (the Jersey Parliament) in 1602. The Public Registry is available for public inspection.
  27. Creation of any hypothec is approved by the Royal Court such that a failure in process is unlikely to occur. To the extent that there are any failures the Court retains a discretion to amend its own process.

Mexico Small Flag Mexico

Security interest may come in the form of in rem rights on collateral (mortgages or pledges), or other devices that are the functional equivalent thereof (eg, guaranty trusts).

Secured claims are those covered by an in rem security interest. Only mortgages and pledges qualify as in rem security interests for purposes of bankruptcy ranking. These claims are paid out of the proceeds of the property that have been collateralized against the mortgage or pledge, and generally in the order that the pledges or mortgages have been registered in accordance with applicable law. Other security devices do not qualify as an in rem security interest.

Priority claims are those from creditors with a privilege or a retention right (e.g., a mechanics lien). These claims are paid out of the proceeds of the retained property and are generally paid in the order of privilege that has been registered in accordance with applicable law or by the date of the claims.

Peru Small Flag Peru

Securities granted over immovable property are governed by the Peruvian Civil Code, Book V, Section 4, and include the mortgage, the antichresis and lien. Securities granted over movable property are governed by Legislative Decree No. 1400 enacting the Regime of Chattel Mortgages (Régimen de Garantía Mobiliaria or RGM) and Peruvian Civil Code by lien.

Immovable Property

Mortgage

A mortgage encumbers a real estate property to secure or guarantee the performance of an obligation. Under a mortgage, the security provider or mortgagor retains ownership of the secured asset; however, the mortgage gives the secured creditor or mortgagee a security interest in the secured asset which gives the mortgagee enforcement, priority, and court-ordered selling rights on the mortgaged asset. A mortgage is indivisible and therefore it encumbers all secured assets. A mortgage may also secure a future or contingent obligation; however, a mortgage cannot be granted over future assets.

Formalities: To perfect a mortgage, a mortgage agreement must be executed as a public deed and be registered in the National Registry of Real Property. In addition, the encumbrance shall be for a specified or specifiable amount, with earlier encumbrances having a higher rank of priority than later ones as shown by their registration dates, unless a creditor waives his priority rank.

Antichresis

The antichresis grants the creditor the right to make a profitable use of the secured property. The antichresis agreement must also be executed as a public deed; failure to do so will render the agreement null and void. The antichresis agreement has to specify the rent to be paid for the secured property and the interest rate agreed. The creditor’s obligations are the same as a tenant’s, except for paying a rent.

Lien

Finally, a lien (derecho de retención) gives the creditor the right to be in possession of the secured property if the credit granted is not sufficiently secured. Ownership is not transferred to the secured party even where the debtor fails to satisfy the secured obligation, and any arrangement providing otherwise is null and void, except for the cases of transfer of the secured asset to the creditor as specified in under RGM. For the lien to be enforced vis-à-vis third parties, it must be registered in the Registry of Real Property.

Movable Property

A securities granted on personal property (or chattel mortgage) encumbers personal property in order to secure the performance of obligations of any nature, whether present or future, whether determined or determinable, whether conditioned or not. Under a personal property security the secured creditor may or may not be in possession of the secured asset.

Formalities: A chattel mortgage is attached by a security agreement witnessing the will of both parties, which must be executed as a public deed or notarized signatures (whether digital or handwritten, as agreed by the parties). Perfecting a security interest creates a priority that can be opposed to other parties with a security interest in the secured asset. When the secured party is in possession of the secured asset, the possession itself is deemed to perfect his security interest, without prejudice to his right to register it in the Personal Property Security Information System (Sistema Informativo de Garantías Mobiliarias or “SIGM”). When the secured party is not in possession of the secured asset, the security interest is perfected by registering the security agreement with the SIGM.

Immovable and Movable Property

Lien

A lien (derecho de retención) gives the creditor the right to be in possession of the secured property if the credit granted is not sufficiently secured. Ownership is not transferred to the secured party even where the debtor fails to satisfy the secured obligation, and any arrangement providing otherwise is null and void, except for the cases of transfer of the secured asset to the creditor as specified in under RGM. For the lien to be enforced vis-à-vis third parties, it must be registered in the Registry of Real Property, this rule is only applicable for immovable property.

Poland Small Flag Poland

Registered pledge

Registered pledge may be established on movable property and transferable property rights. It is regulated by Act on registered pledge and Register of Pledges (O.J. 1996, No 149, item 703, as amended). The pledge agreement and entering the pledge into the Register od Pledges are required in order to successfully establish registered pledge. The pledge agreement should be made in writing.

Mortgage

Mortgage may be established on immovable property. It is regulated by Act on Land and Mortgage Registers and Mortgage (O.J. 1982, No 19, item 147, as amended). The mortgage is established effective under the condition that relevant entry has been made in the Land and Mortgage Register. It is also necessary to comply with requirements as to the document that constitutes the basis for entering mortgage into the Land and Mortgage Register (e.g. notarial deed, Court’s decision in the case of compulsory mortgage), as well as requirements as to the form of the document (drawn up in writing with a signature certified by notary). There are several types of mortgages regulated under the Act on Land and Mortgage Registers and Mortgage, in particular: contractual mortgage, compulsory mortgage, etc.

Mortgage and registered pledge become valid provided that competent Court makes relevant entry into the Land and Mortgage Register or the Register od Pledges respectively.

If the application for entering mortgage or registered pledge into respective register does not comply with formal requirements set out in Polish law, depending on gravity and type of failure (in particular errors and omissions), the Court requests applicant to remedy any errors or omissions, or dismisses the application if given failure is irremediable.

There also exist less popular securities like pledge, treasury pledge or ship's mortgage.

Singapore Small Flag Singapore

Singapore adopts the common law forms of security interests. Mortgages and charges (both fixed and floating) are the most common types of security, while pledges and liens are less common. Each type of security requires different legal formalities. Where a charge or mortgage has been created by a company, it must be registered with the Accounting and Corporate Regulatory Authority in Singapore. Failure to register will result in the security becoming void against the liquidator and other creditor upon liquidation. In addition, officers of a company who fail to comply with the registration requirements specified in the Companies Act may be fined.

Mortgages

Mortgages (both legal and equitable) are typically used to secure immovable property. Mortgages must be created by deed, and most comply with the formalities in the Land Titles Act.

Charges

Charges are often used to secure chattel (e.g. plant and machinery), as well as choses in action (e.g. streams of income). A charge by itself does not transfer a legal or equitable interest in the charged property, although it is not uncommon for a fixed charged to be fortified by a legal or equitable assignment.

Whether a charge is construed as a fixed or floating charge will depend on the terms of the debenture – where a chargor has the power to dispose of the charged assets without the chargee’s consent, a charge will be found to a floating charge notwithstanding any labels to the contrary.

Pledges

A pledge is created when a debtor transfers possession of goods owned by him to the creditor until payment for the debt. While there are no formalities for the creation of a pledge at common law, pledges with pawnbrokers are regulated by the Pawnbrokers Act.

Liens

A lien is a right to retain possession of a property until full payment is made by a debtor. A lien may arise from the application of the common law, contract, or certain provisions in the Sale of Goods Act.

Sweden Small Flag Sweden

Security over immovable real estate, and over ships and aircraft is created by way of a mortgage. This security is perfected by possession of a mortgage deed and registration in public registers.

Security can also be created over practically all moveable assets either in the form of a pledge over specific property or a floating charge over the assets in a business (a floating charge will not include cash and shares).

A pledge over specific movable property is normally written (but may be an oral agreement) and will be perfected by way of taking possession over the pledged asset. There is no registration procedure available in Sweden for this purpose, at least not in respect of tangible assets. A pledge over intangible assets such as trademarks and patents, however, will created and perfected by a written agreement and registration with the Swedish Patent and Registration Office.

A floating charge over the assets of a business (Sw. företagshypotek) is created by way of a mortgage deed being pledged and transferred to the pledge holder. Registration is not required, unless it is a digital mortgage certificate.

Unless the different formalities described above are not complied with, the security in question will not be perfected and, if so, the security will not be protected against the debtor’s creditors and will thus not give any priority to the claim in insolvency proceedings.

Switzerland Small Flag Switzerland

The main types of security interests for movable property are pledges and transfers or assignments for security purposes. Pledges come in two forms, i.e. regular pledges with no transfer of ownership and irregular pledges with a transfer of ownership and an obligation to return collateral of the same amount and quality. An irregular pledge is assumed where a secured creditor benefits from a right of rehypothecation or similar right of use. Security over immovable property is taken in the form of mortgages and, more often, by way of a pledge or transfer for security purposes of mortgage certificates. Pledges and mortgages are so-called accessory security interests which implies, inter alia, that (i) the valid existence of the pledge or mortgage is dependent on the continuing valid existence of the secured obligations and (ii) the holder of the secured obligations must be identical with the holder of the relevant security interest. In turn, a transfer or assignment for security purposes is a non-accessory security interest where the aforementioned principles do not apply.

The concept of a pledge is frequently used for the following asset categories:

  • Certificated shares: The valid creation requires a written pledge agreement and the transfer of possession of the share certificate (with an endorsement for registered shares). The articles of association of the pledged company may establish additional requirements for the creation and/or perfection of a right of pledge.
  • Other securities: Uncertificated securities are pledged by way of a written pledge agreement. If the securities are in the form of book entry / intermediated securities either of the following must occur for the creation of a valid security interest: (i) a transfer to an account of the pledgee or (ii) an irrevocable instruction from the pledgor to the intermediary regarding adherence of the intermediary to instructions from the pledgee without consent or cooperation from the pledgor.
  • Bank accounts: The valid creation requires a written pledge agreement. Enforceability of the pledge vis-à-vis the account bank further requires notification of the pledge to the account bank.
  • Intellectual property rights: The valid creation requires a written pledge agreement. Registration of the pledge in the relevant registers for patents, trademarks and designs is not required for the valid creation but for perfection of the right of pledge.
  • Movable assets: In addition to a pledge agreement (for which the written form is not required but strongly recommended) the creation of the security interest requires the depossession of the pledgor. A security interest is not validly created as long as the pledgor has unrestricted access to the relevant assets. This makes the security unattractive in many instances.

An assignment for security purposes is the standard form of security for uncertificated receivables. The assignment must be in writing. Notice to debtors is required for perfection of the assignment and to preclude the debtors from making payments to the assignor.

A transfer for security purposes is regularly chosen for the creation of a security interest with respect to mortgage certificates over real estate. The creation of the mortgage certificate requires an act in the form of a public deed. In addition to a transfer agreement (for which the written form is generally not required but strongly recommended) the valid creation of the security interest requires the transfer of the relevant mortgage certificate (if it is issued in certificated form) or an application to the land registry to record the secured party as a holder of the mortgage certificate (if the mortgage certificate is a register mortgage certificate). If the mortgage certificate is issued in certificated form in the name of a specific creditor and not to the bearer, an endorsement is required. The endorsement must not be in blank.

Failure to comply with the aforementioned requirements to create a valid security interest will result in the security not having been validly created and, therefore, not being enforceable. In turn, non-compliance with perfection requirements may have the effect that security may not be fully enforceable with respect to certain specific third parties only or that such security may have limited effects.

Spain Small Flag Spain

In the Spanish legal system, exist the followings forms of security over immovable and movable property:

  • Mortgage property: It is regulated by article 1857 and subsequent of the Spanish Civil Code (“SCC”) and article 104 and subsequent of the Spanish Mortgage Act (“MA”). In order to establish a mortgage property it is required:

    • The mortgage must guarantee a legal obligation (art. 1857 SCC).
    • The encumbered immovable property must be property of the debtor (it also exists the non-debtor mortgagor) (art. 1857 SCC).
    • The mortgagor has not restrictions about his free disposal of the immovable property. Or he has the appropriate authorization (art. 1857 SCC).
    • It is mandatory to register the mortgage property in the Property Register. If the mortgage property is not registered, the mortgage will not exist (art. 1875 SCC).
  • Antichresis: It is regulated by article 1881of the SCC. This form of security implies that (i) the debtor or the owner of the immovable property has to make a profitable use of the asset and that (ii) the debtor has to allocate the obtained results to pay to the creditor. The results will be firstly destined to satisfy the interests and then the capital.
    In order to establish a chattel mortgage it is required:

    • Signature in a public deed before Public Notary. If the antichresis is not registered, it will not produce effects against third parties.
  • Chattel mortgage: It is regulated by the Law on Chattel Mortgages and Non-dispossessory Pledges (“CMNDP”). It is only possible to establish this type of mortgage over (i) commercial establishments, (ii) cars and others motor vehicles, tram and private carriage, (iii) aircraft, (iv) industrial machinery and (v) Intellectual and/or Industrial Property (art. 1 and 12 CMNDP).

    In order to establish a chattel mortgage the following requirements must be fulfilled:

    • It must be signed in a public deed before Public Notary (art. 3 CMNDP).
    • It is mandatory to register the chattel mortgage in the Moveable Property Registry (art. 3 CMNDP). If the chattel mortgage is not registered, the creditor shall not enjoy of his rights as a creditor(1).
  • Non-dispossessory Pledges: It is only possible to establish this type of pledges over (i) pending fruits and harvests expected within the agricultural year in which the contract is concluded, (ii) individual fruits and the products of the misuse, (iii) animals, their offspring as well as their products, (iv) machines and tool, (v) merchandise and raw materials, (vi) objects of artistic and historic value, (vii) credits, license, concession, administrative subsidiaries and (viii) credit claim (art. 52, 53, 54 CMNDP).
  • In order to establish a Non-dispossessory Pledges the following requirements must be fulfilled:
    • It must be signed in a public deed before Public Notary (art. 3 CMNDP).
    • The pledge over bank transactions could be established by commercial policy.
    • It is mandatory to register the chattel mortgage in the Moveable Property Registry (art. 3 CMNDP). If the chattel mortgage is not registered, the creditor shall not enjoy of his rights as a creditor(2).
  • Pledges: It is regulated by article 1857 and subsequent of the Spanish Civil Code. It is only possible to establish this type of pledges over any asset subject to be possessed and commercialized.

    In order to establish a pledge the following requirements must be fulfilled:

    • The pledge has to guarantee a legal obligation (art. 1857 SCC).
    • The encumbered object shall to be property of the debtor (it also exists the non-debtor mortgagor) (art. 1857 SCC).
    • The mortgagor has not restrictions with respect to the free disposal of the immovable property; or counts with the appropriate authorization (art. 1857 SCC).
    • It is not mandatory register the pledge in the Moveable property registry. If the pledge is not registered, it will not produce effects against third parties.
    • The owner of the encumber object must deliver the possession to the creditor or a third party (art. 1863 SCC).

According to article 90 of the Spanish Insolvency Act (“SIA”) all the credits guaranteed by these securities shall be qualified as claims with special preference. However, it is necessary that these securities have been established fulfilling the mandatory provisions that are required by the correspondent specific Act. If the security does not respect the requisites established by the applicable Act, the credit will not be qualified with a special preference. As a consequence, the credit will not enjoy the benefits of this condition.

(1)The lien (art. 1866 CC), ius distrahendi (art. 1872 CC and 332 Commercial Code), right of first refusal (art. 1922 CC), the right of refunding the cost of conservation the object (art. 1867 CC), the right of receiving interest (art.1868 CC) and exercise actions in order to defend his rights as a creditor.

(2)The lien (art. 1866 CC), ius distrahendi (art. 1872 CC and 332 Commercial Code), right of first refusal (art. 1922 CC), the right of refunding the cost of conservation the object (art. 1867 CC), the right of receiving interest (art.1868 CC) and exercise actions in order to defend his rights as a creditor.

United States Small Flag United States

Article 9 of the Uniform Commercial Code, as enacted in each state in the U.S., is the primary statute regarding the consensual granting of a security interest in personal property (i.e., movable property). Security interests in real property (i.e., immovable property) are granted through a deed of trust or mortgage filing in the public records where the real property is located. Security can be granted over immovable and movable personal property by filing a financing statement (in the case of interests in personal property) or a mortgage or deed of trust (in the case of immovable or real property), taking possession of collateral, or obtaining control over the collateral. Security interests are not enforceable and do not attach unless: (i) the collateral is in the possession of the secured party pursuant to agreement, or the party granting the security interest has signed a security agreement (or other agreement which clearly expresses the intention of the grantor to grant a lien or confer control to the grantee/secured party) which grants the security interest and contains a description of the collateral, (ii) value has been given; and, (iii) the party granting the security interests has rights in the collateral. A security interest in personal property is perfected by the filing of a financing statement in the public records of the state in which the debtor is incorporated. If a creditor fails to properly perfect its interest, the interest may be avoided.

United Kingdom Small Flag United Kingdom

The type of security granted over an asset in England and Wales largely depends on whether legal title (i.e. ownership in the ordinary sense) to the secured asset is intended to be transferred to the secured party. Security can be in the form of a mortgage or security assignment (transfer of title, security provider retains possession) or a charge (no transfer of title, security provider retains possession). There are also other types of security which apply where the secured party is in possession of the secured asset, e.g. liens and pledges.

To create a mortgage, the legal or beneficial title to the secured asset must be transferred to the security-holder. Mortgages are most commonly granted over real estate, but are also seen in movable property such as ships and airplanes. Legal mortgages must be in writing and executed as a deed by the security provider (the mortgagor). To take effect as a legal mortgage, a mortgage over registered title must be registered at the Land Registry. If the security is not registered, it will usually take effect as an equitable mortgage, which can undermine the strength of the security in the case of competing claims.

A charge may be either “fixed” or “floating”; secured lenders will usually aim to ensure that as much of their security is fixed as possible. A fixed charge requires the security provider (the chargor) to hold the charged asset (e.g. shares) to the order of the secured party (the chargee); while a floating charge permits the chargor to deal with the asset in the ordinary course of business (the floating charge hovers above a shifting pool of assets such as cash, stock and inventory). Charges are easier to grant than legal mortgages as there are fewer formalities involved. Charges must be in writing and signed by the security provider.

Security granted by an English company or LLP must be registered at Companies House within 21 days of creation or it may be void on insolvency and against third parties. Other types of security, e.g. over intellectual property, require further formalities; certain mortgages and charges over interests in land must be executed as a deed.

Hungary Small Flag Hungary

(a) Immovable Property

The security instruments in respect of immovable property are:

(i) mortgage over real estate;

(ii) call option over real estate; and

(iii) prohibition of alienation and encumbrance.

All the above security instruments need to be registered in the Land Registry and for such registration they need to be either in the form of a notarial deed or a document countersigned by an attorney-at-law.

(b) Movable Property

The security instruments in respect of movable property is the pledge which has the following sub-categories

(i) pledge (registered in the security instrument register) over assets identified individually (specifying the relevant asset);

(ii) pledge (registered in the security instrument register) over assets identified by circumscription (pledge over group of assets similar to floating charge or enterprise charge used in other jurisdictions); and

(iii) possessory charge (whereby the pledgee has possession over the relevant asset).

The movable pledge agreement must be made in writing.

Belgium Small Flag Belgium

- Security over immoveable property

In Belgium, a security interest over real estate is created by way of a mortgage. A mortgage can cover ownership of real property, e.g. land, buildings and constructions, including bare ownership rights freehold interests as well as other real property rights, such as long term lease rights. A mortgage needs to be established by notarial deed and registered (the timing of the registration determines the ranking). The cost of the mortgage amount to approximately 1.30% of the mortgage amount to be increased with notary fees and costs. To reduce costs the mortgage can be taken for a lower amount in combination with a mortgage mandate for the remaining portion of the secured claim. A mortgage mandate is an irrevocable mandate to establish a mortgage, in addition to the existing mortgage. While it reduces the cost, it will only create effective security from the moment it is converted into a regular mortgage and properly registered at which time also the registration fee will be due.

- Security over movable property

The right of pledge gives the pledgee the right to be paid in priority over the other creditors from the encumbered goods. Most common pledges are pledges on the business, shares, IP, bank account and receivables. The right of pledge is opposable to third parties through a registration in the national pledge register (https://financien.belgium.be/nl/E-services/pandregister). Such registration triggers a registration fee of up to 500€ and is valid for ten years.

Retention of title refers to the sale of movable property with a clause that suspends the transfer of ownership to the buyer until full payment of the price is made. The movable property can be reclaimed if the buyer fails to pay the purchase price insofar as it is agreed in writing at or prior to the time of delivery of the good. Under the new insolvency law, holders of retention of tile will benefit from a super priority therefore prevailing over any pledgee or assignee of the same receivables. The retention of title clause is not subject to any requirement of registration or publication, but if registered in the national pledge register, the retention of title will continue to apply to assets sold by the debtor even if they became immovable by incorporation in real estate.

Updated: May 17, 2019