HRS § 506-1 - Lien of mortgages of real property or fixtures; debts secured; priority
AI-assisted research summary: Some transfers of real property or fixture interests used as security are treated as mortgages, creating a lien only and not passing title.
(a) Every transfer of an interest in real property or fixtures made as security for the performance of another act or subject to defeasance upon the payment of an obligation, whether the transfer is made in trust or otherwise, is to be deemed a mortgage and shall create a lien only as security for the obligation and shall not be deemed to pass title. (b) A mortgage may secure the repayment of past debt, a debt incurred at the time the mortgage is executed, or a debt incurred for advances which may be made by the mortgagee subsequent to the execution of the mortgage even though the mortgagee is under no contractual duty to make these advances. Except as otherwise provided in sections 490:9-334 and 490:9-604 of the Uniform Commercial Code with respect to security interests in fixtures, a mortgage which secures future advances, up to but not exceeding the maximum amount of future advances stated in the mortgage, shall be superior to any subsequently recorded mortgage, lien, or other encumbrances or conveyance, other than liens for real property taxes and assessments for public improvements, even though the subsequently recorded mortgage, lien, or other encumbrance or conveyance is recorded prior to the date upon which any advance or advances have been made. [L 1939, c 255, pt of §1; RL 1945, §8871; am L 1951, c 202, §1; RL 1955, §196-1; am L 1966, c 18, §5(b); HRS ; am L 1986, c 28, §1; am L 1987, c 275, §1; am L 2000, c 241, §5] Law Journals and Reviews Hawaii 2000 Report Regarding Lawyers' Opinion Letters in Mortgage Loan Transactions. 22 UH L. Rev. 347. Case Notes Agreement of sale is not a mortgage. 324 F. Supp. 1314. Cited in connection with construction of bill of sale of automobile under prior law which included personal property under this section. 38 H. 279. Deed accompanied by lease-back with option to repurchase construed as mortgage under the circumstances. 49 H. 160, 413 P.2d 221, reh'g den. 49 H. 255, 413 P.2d 221. Mortgages for future advances; scope of coverage determined. 50 H. 304, 440 P.2d 262. Where an absolute conveyance contains a defeasance clause, the instrument is a mortgage. 50 H. 493, 443 P.2d 153. General creditor of mortgagor has standing to contest amount due mortgagee in foreclosure proceeding. 54 H. 107, 503 P.2d 424. Decree of foreclosure and order of sale as appealable final orders. 55 H. 414, 520 P.2d 431. Cited as authority for mortgages securing past debts. 60 H. 413, 591 P.2d 104. Foreclosure decree is deemed final for appeal purposes although many matters remain unsettled. 2 H. App. 140, 627 P.2d 296.