Encumbrance Definition

GLOSSARY

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What does Encumbrance mean?

means a mortgage, claim, charge, pledge, lien, hypothecation, guarantee, right of set-off, trust, assignment, right of first refusal, right of pre-emption, option, restriction or other encumbrance or any legal or equitable third party right or interest, including any security interest of any kind or any type of preferential arrangement (or any like agreement or arrangement creating any of the same or having similar effect);

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Bank Recovery and Resolution Directive (BRRD)—timeline [Archived]

Bank Recovery and Resolution Directive (BRRD)—timeline [Archived] Archived:This timeline has been archived. For developments from January 2024 onwards, see EU Bank Recovery and Resolution Directive—timeline if they relate to the EU BRRD, or UK bank recovery and resolution regime—timeline if they relate to the UK bank recovery and resolution regime, For further guidance on the EU BRRD, see Practice Note: Bank Recovery and Resolution Directive (BRRD)—essentials. For further guidance on the UK bank recovery and resolution regime, see Practice Note: The UK bank recovery and resolution regime. Date Source Document Description 20 December 2023 European Banking Authority The EBA publishes amendments to disclosures and reporting on MREL and TLAC The European Banking Authority (EBA) has published its final draft implementing technical standards (ITS) on amendments to disclosure and reporting of the minimum requirement for own funds and eligible liabilities (MREL) and the total loss absorbency requirement (TLAC). The amendments reflect the new requirement to deduct investments in eligible liabilities instruments of entities belonging to the same resolution group, the...

Retiring from a general partnership—checklist

Retiring from a general partnership—checklist Identity of retiring partner What is the name and address of the retiring partner? Business details Will the business of the partnership remain the same after retirement of the retiring partner? Will the name of the partnership change after retirement of the retiring partner? Will the premises of the business change? If the partnership is registered for VAT, who will inform HMRC of a change of partners for VAT purposes? If the partnership is registered for PAYE and employer’s NICs, who will inform HMRC of a change of partners for these purposes? Will the new partner be required to register for employee’s NICs? Partnership agreement and other documentation How does the partnership agreement provide for the retirement of a partner? Are defined terms set out in the partnership agreement consistent with those in the proposed retirement deed? What restrictions are in place over the retiring partner post-retirement? Are the restrictions reasonable? Should they be added to? Will the retiring partner be required to give assistance...

Buyer’s contract negotiation guide—title and encumbrances

Buyer’s contract negotiation guide—title and encumbrances Are title clauses just standard ‘boilerplate’? Many commercial property contracts will deal with title matters in a similar way and often there is little scope or need to amend the clauses if the title is straightforward and nothing bespoke is required. However, it is important to be clear on the effect of the clauses, the legal background, how they apply in particular scenarios and their interaction with the buyer’s due diligence. Key legal principles for sellers and buyers of property We consider here the fundamental legal principles of the buyer-seller relationship. Implied obligation selling free from encumbrances There is an implied obligation that the seller is selling a freehold estate free from encumbrances. This can only be rebutted in three ways: • by express contractual provision • if the buyer knows (actual knowledge) that there is an irremovable encumbrance, or • if there is a patent (ie visible) defect in title (although this is overridden if the seller expressly agrees...

Kazakhstan merger control

Kazakhstan merger control A conversation with Amir Begdesenov, partner at Kazakhstani law firm Sayat Zholshy & Partners, on key issues on merger control in Kazakhstan. NOTE–to see whether notification thresholds in Kazakhstan and throughout the world are met, see Where to Notify. 1. Have there been any recent developments regarding the Kazakhstan merger control regime and are any updates/developments expected in the coming year? Are there any other ‘hot’ merger control issues in Kazakhstan? On 29 June 2020, the Law On Amendment of Certain Legislative Acts of the Republic of Kazakhstan Concerning the Improvement of Business Environment (the Law) amended the Entrepreneurial Code of the Republic of Kazakhstan (the Code), which was adopted on 29 October 2015. The Law abolished the requirement to submit certain documents when seeking consent to merger transactions. Further, at the beginning of September 2020, Kazakhstan President Kassym-Jomart Tokayev addressed the people of the Republic of Kazakhstan at a joint sitting of the Parliament chambers when he instructed the Government to set up an...

Discover our 76 Practice Notes on Encumbrance

Property warranties (short-form) in an asset purchase

Property warranties and definitions to include in a short-form asset purchase agreement 1 Definitions In this Agreement, unless the context otherwise requires: Encumbrance means any mortgage, claim, charge (fixed or floating), pledge, lien, hypothecation, guarantee, right of set-off, trust, assignment, right of first refusal, right of pre-emption, option, restriction or other encumbrance or any legal or equitable third party right or interest including any security interest of any kind or any type of preferential arrangement (or any like agreement or arrangement creating any of the same or having similar effect) and Encumbrances means more than one of them; Freehold Properties ...

Representations and events of default plug-in clauses for loan agreements and security documentation: individual borrower or chargor

Representations and events of default plug-in clauses for loan agreements and security documentation: individual borrower or chargor DEFINITIONS The following definition needs to be added to Clause 1.1 (Definitions) of Precedent: Facility agreement (term loan): single company borrower—bilateral—with or without security or a guarantee. Mental Incapacity • means in relation to a person: (a) any unsoundness of mind—they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain whether the impairment or disturbance is permanent or temporary; (b) any order being made or receiver appointed under the Mental Health Act 1983, the Mental Health Act 2007 or any analogous step or procedure being taken in any other jurisdiction; or (c) any step or procedure being taken in any jurisdiction which would restrict the capacity of the Borrower to enter into [this Agreement OR the Finance Documents to which they are a party] or would require the approval...

Dive into our 105 Precedents related to Encumbrance

A judgment creditor has a charging order over a property that was protected by a unilateral notice. A mortgagee in possession has sold the property and the Land Registry has served a B160 notice of an application for registration of a transfer made under a power of sale. What are the mortgagee in possession’s duties in relation to other creditors of registered entries on the title when it enters into possession and exercises its power of sale?

A judgment creditor has a charging order over a property that was protected by a unilateral notice. A mortgagee in possession has sold the property and the Land Registry has served a B160 notice of an application for registration of a transfer made under a power of sale. What are the mortgagee in possession’s duties in relation to other creditors of registered entries on the title when it enters into possession and exercises its power of sale? A mortgagee in possession has the power pursuant to sections 101 and 103 of the Law of Property Act 1925 (LPA 1925) to sell a property, ordinarily after taking possession, though this statutory power can be excluded by agreement by the parties. Upon exercising the power of sale, the equitable right of the mortgagor to redeem is extinguished but the mortgagee becomes a trustee of the surplus proceeds of sale for the mortgagor and any other interested parties. If the statutory power of sale is exercised, LPA 1925, s 105 provides that...

Is there an implied term that developed or licensed software does not infringe a third party’s intellectual property rights?

Is there an implied term that developed or licensed software does not infringe a third party’s intellectual property rights? Generally, terms may only be implied into contracts governed by the laws of England and Wales: • by statute, or • where common law tests are successfully applied Statutory implied terms relevant to intellectual property infringement Section 12 of the Sale of Goods Act 1979 (SGA 1979) implies the following terms, among others and subject to some exceptions, into relevant contracts: • goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance—SGA 1979, s 12(1) • the buyer will enjoy quiet possession of the goods—SGA 1979, s 12(2) Accordingly, a seller may be in breach of SGA 1979, s 12 if contrary third party property rights existed at the time of entering into contract or are subsequently enforced. See Microbeads v Vinhurst Road Markings, a patent case, which confirmed that both SGA 1979, ss 12(1) and 12(2)...

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Chinese Court Grants First Ever Investigation Order Assisting Taking of Evidence in Arbitration ((2023) Hu 0112 Xie Zhong Diao No 1)

Arbitration analysis: The Shanghai Minhang District People’s Court has issued a groundbreaking investigation order, granting the arbitral tribunal, when faced with difficulties in obtaining certain evidence, access to property records kept by a third party. The case offers helpful guidance as to what considerations the Chinese court should take into account in providing judicial assistance in the taking of evidence in arbitration. It also establishes a useful precedent for future practices on the proper formulation and execution of such an order. The application of an investigation order in the arbitration context marks a pioneering step made by the Chinese court to explore the method of taking evidence, strengthening its pro-arbitration approach as a supportive judiciary. Written by Han Li, associate at Llinks Law Offices.

ECB publishes consolidated banking data for end-March 2023

The European Central Bank (ECB) has published consolidated banking data for end-March 2023. As well as figures and statistics on the aggregate of total assets of EU-headquartered credit institutions, it includes data on non-performing loans and Common Equity Tier 1 ratios.

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