CHAPTER 6.01. Formalities of Delaware Real Estate Mortgages

• Jurisdiction: United States

6.01. Formalities of Delaware Real Estate Mortgages

The form of a Delaware mortgage is much like the form of a deed: a mortgage identifies the grantor and grantee parties (typically identified as the mortgagor and mortgagee), contains a grant of the real property (in this case, the collateral), recites the "consideration" (in this case, the secured obligation),¹ and is signed, witnessed, and notarized. Delaware law also provides a statutorily sufficient form of a Delaware mortgage.² Although that statutory form need not be strictly followed, and a mortgage not made in that form is not necessarily invalid, the omission of a substantive term, such as the secured obligation, could render a mortgage unenforceable.³ More specifically, it is generally thought by practitioners that a Delaware mortgage must satisfy the following requirements and should conform to the following recommendations in order to be valid, enforceable, and accepted for recording:

• The mortgage must be in writing.⁴
• The mortgage must identify the parties to the mortgage.⁵
• Although not required, the mortgage should be dated.⁶
• The mortgage must be signed by the mortgagor.⁷
• The front page of the mortgage must contain in a conspicuous place the tax parcel number of each property secured by the mortgage and the name and address of the preparer of the mortgage.⁸
• The mortgage must contain an identification of the debt or obligation secured by the mortgage.⁹
• Although not required, the mortgage should state the maturity date of the secured obligation.¹⁰
• The mortgage must contain the conveyancing words "grant and convey" in the granting clause.¹¹
• The mortgage must contain a legally sufficient description of the mortgaged property.¹²
• Although not required, the mortgage should contain a "defeasance" clause whereby the mortgage is void upon complete payment or performance of the secured obligations.¹³
• Although not required, the mortgage should be properly acknowledged.¹⁴
• Although not required, the mortgage should be recorded to give record notice of the lien and to establish lien priority.¹⁵

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Notes:

^[1] See supra Section 4.03 for discussion of the need for consideration in a mortgage.

^[2] 25 Del. C. § 2101.

^[3] 25 Del. C. § 2101(c); Handler Construction, Inc. v. CoreStates Bank, N.A., 633 A.2d 356, 363 n.6 (Del. 1993).

^[4] 6 Del. C. § 2714.

^[5] 1 Williston on Contracts § 2:3 at 97, § 2:12 at 161, and § 3:2 at 263 (2007); Restatement (Second) of Contracts § 9 at 26 (1981).

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