98Facilitation of redemption in case of deceased, absent or unknown mortgagees

98 Facilitation of redemption in case of deceased, absent or unknown mortgagees

98 Facilitation of redemption in case of deceased, absent or unknown mortgagees

(1) Where land is subject to a mortgage and the person empowered to reconvey the land or, where the land is under the provisions of the Real Property Act 1900, to execute in respect thereof a discharge referred to in section 65 of that Act, is out of the jurisdiction, cannot be found or is unknown, or if it is uncertain who the person is, or if the person is dead and no personal representative has been or is likely to be appointed for the person or it is uncertain who the personal representative is, the court may, upon the application of the person for the time being entitled to redeem the mortgaged land, determine in such manner as the court thinks fit whether or not all amounts due under the mortgage have been paid and, if not, the amount thereof outstanding.

(1A) Where the court has made a determination under subsection (1) in relation to a mortgage, the mortgagee is, to the extent provided by this section, liable to pay the costs of the applicant incurred in obtaining the determination, any rule of law or stipulation to the contrary notwithstanding.

(1B) The amount of costs that a mortgagee is liable under subsection (1A) to pay in respect of a determination under subsection (1) is the amount by which—

(a) the amount certified by the court when making the determination as reasonable costs of the applicant incurred in obtaining the determination,

exceeds—

(b) the reasonable costs that would have been incurred by the mortgagee in discharging the mortgage, whether or not they would have been payable by the mortgagee.

(1C) The amount of costs that a mortgagee is liable, under subsection (1A), to pay to an applicant shall, except to the extent that it is extinguished or reduced by the operation of this section, be deemed to be a specialty debt recoverable by the applicant and incurred at the time of the making of the determination to which the costs relate.

(1D) Where the court determines under subsection (1) that the amount due under a mortgage has not been repaid and the amount thereof determined by the court to be outstanding exceeds the amount of costs calculated under subsection (1B) in respect of the determination, the applicant for the determination may pay into court the difference between the amount so determined and the amount so calculated and, upon the amount of that difference being so paid—