equitable assignment of equitable property

Equitable Assignment: Everything You Need to Know

An equitable assignment is one that does not fulfill the statutory criteria for a legal assignment, but is binding and upheld by the courts in the interest of equability, justice, and fairness. 3 min read updated on February 01, 2023

An equitable assignment is one that does not fulfill the statutory criteria for a legal assignment, but is binding and upheld by the courts in the interest of equability, justice, and fairness.

Equitable Assignment

An equitable assignment may not appear to be self-evident by the law's standard, but it presents the assignee with a title that is protected and recognized in equity. It's based on the essence of a declaration of trust; specifically, essential fairness and natural justice. As long as there is valuable consideration involved, it does not matter if a formal agreement is signed. There needs to be some sort of intent displayed from one party to assign and the other party to receive.

The evaluation of a righteous equitable assignment is completed by determining if a debtor would rationally pay the debt to another party alleging to be the assignee. Equitable assignments can be created by:

• The assignor informing the assignee that they transferred a right to them
• The assignor instructing the other party to release their obligation from the assignee and place it instead on the assignor

The only part of an agreement that can be assigned is the benefit. Generally speaking, there is no prerequisite for the written notice to be received or given. The significant characteristic that separates an equitable assignment from a legal assignment is that most of the time, an equitable assignee may not take action against a third party. Instead, it must rely on the guidelines governing equitable assignments. In other words, the equitable assignee must team up with the assignor to take action.

The Doctrine of Equitable Assignment in Wisconsin

In Dow Family LLC v. PHH Mortgage Corp ., the Wisconsin Supreme Court issued in favor of the doctrine of equitable assignment. The case was similar to many other foreclosure cases, except this one came with a twist. Essentially, Dow Family LLC purchased a property and the property owner insisted the mortgage on the property had been paid off. However, in actuality, it wasn't. 

Prior to the sale, the mortgage on the property was with PHH Mortgage Corp. When PHH went to foreclose on the mortgage, Dow Family LLC contested it. There was one specific rebuttal that caught the attention of the Wisconsin Supreme Court. The official mortgage on record was with MERS, an appointee for the original lender, U.S. Bank.

Dow argued that PHH couldn't foreclose on the property because the true owner was MERS. Essentially, Dow was stating that the mortgage was never assigned to PHH. Based on this argument, PHH utilized the doctrine of equitable assignment.

Based on a case from 1859, Croft v. Bunster, the court determined that the security for a note is equitably assigned when the note is assigned without a need for an independent, written assignment. Additionally, Dow contended that the statute of frauds prohibits the utilization of the doctrine, mainly because it claimed every assignment on a property must be formally recorded.

During the case, Dow argued that the MERS system, which stored the data regarding the mortgage, was fundamentally flawed. According to the court, the statute of frauds was satisfied because the equitable assignment was in accordance with the operation of law. Most importantly, the court avoided all consideration regarding the MERS system, concluding it was not significant in their decision. 

The outcome was a major win for lenders, as they were relying on the doctrine specifically for these types of circumstances.

Most experts agree that this outcome makes sense in the current mortgage-lending environment. This is due to the fact that it is still quite common for mortgages to be bundled up into mortgage-backed securities and sold on the secondary market.

Many economists claim that by not requiring mortgages to be recorded each time a transfer is completed, the loans are more easily marketed to investors. Additionally, debtors know who their current mortgage company is because the new lender must always notify the current borrower in order to receive payment. It was determined that recording and documenting the mortgage merely provides a signal to the rest of the world that the property owner secures a debt.

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Equitable assignment

Practical law uk glossary 2-107-6540  (approx. 3 pages).

• The assignor can inform the assignee that he transfers a right or rights to him.
• The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.
• General Contract and Boilerplate
• Breach of Lease Covenants
• Security and Quasi Security

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What Is an Equitable Assignment?

An equitable assignment is a transfer of future interest that doesn’t fully meet legal standards, but will still be honored by courts. This is an example of a situation covered by equity, or fairness, rather than specific legal doctrine. Courts will enforce such agreements when they are not covered by existing laws, as long as they appear reasonable, fair, and without coercion. The standards for an equitable assignment to pass court scrutiny can depend on the region and the situation.

In such assignments, people can reassign future income in several different ways. One option can be to transfer interest, like part of a trust, to another person; the trust is guaranteed income, but the assignor waives the right to it, allowing the assignee to benefit from it. Another way to perform an equitable assignment is to have third parties transfer anticipated payments to the assignee. In all cases, the transfer involves future income or benefits, not current ones.

Expectations do not count as an equitable assignment. If a child believes she will inherit her father’s house, for example, she cannot transfer her interest in the house to another party. This is because the inheritance is an expectation, not a guarantee. In the event she does not inherit the house, the person she transferred the interest to has no recourse. Thus, someone cannot ask to have a debt written off in exchange for a future expectation.

Due consideration also needs to be part of an equitable assignment transaction to prevent fraud and ensure a transaction is legitimate. In the example of assigning rights to a trust, for instance, the assignor would need to receive something in exchange. That might be a bulk payment to buy the right to proceeds from the trust later. If due consideration is not present, the court may not uphold the agreement, on the grounds that it could be suspect. A special concern can be attempts to transfer rights to future earnings for the purpose of avoiding tax liability, in which case the assignee might be planning to transfer the funds back or allow the assignor to use them.

Specific legal standards for equitable assignments can depend on the nation. People with concerns can consult an attorney for advice in these situations. Attorneys with expertise in this area are familiar with actions in equity courts and can determine whether a transaction is likely to hold up in court.

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a MyLawQuestions researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

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Part II The Transfer of Intangible Property, 13 Equitable Assignment of Choses in Action

From: the law of assignment (3rd edition), marcus smith, nico leslie.

This chapter studies the requirements that are necessary for an effective assignment of choses in action. In order to effect the assignment or a chose in action: the assignor must have manifested an intention to transfer the chose; the thing being assigned must be a chose in action, in present existence, certain or capable of being ascertained; the identity of the assignee must be clear; and the appropriate forms and formalities must have been satisfied. These requirements apply both to legal and equitable assignments. However, since legal assignments can only be affected by statute, the forms and formalities required for a legal assignment are those set out in the relevant legislation, and addressed elsewhere.

• [66.249.64.20|195.158.225.230]
• 195.158.225.230

What is the significance of an equitable assignment in the context of the assignment of future rights under a contract (or a chose in action)?

An assignment is the transfer of a right or an interest vested in one party (assignor) to another party (assignee). The effect of a valid assignment is to entitle the assignee to demand performance of a contractual obligation.

Assignments may be legal or equitable.

A legal assignment is one which meets the requirements set out in section 136(1) of the Law of Property Act 1925 (LPA 1925). It must be:

absolute and unconditional and not purport to be by way of charge only

made in writing and signed by the assignor

expressly notified in writing to the obligor

Equitable assignments may arise in the following circumstances:

where there is an intention to assign, but not all of the formalities of a legal assignment are met under LPA 1925, s 136(1), the assignment may still be valid as an equitable assignment . The formalities for an equitable assignment to be effective are far less stringent

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Related legal acts:

• Law of Property Act 1925 (1925 c 20)

Key definition:

Equitable assignment definition, what does equitable assignment mean.

Assignments can occur in equity when any of the requirements of legal assignment are not satisfied.

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equitable assignment

• A transfer of property or rights, particularly those in which the transferor has a future interest, that may not technically be legal, but would be considered fair and just by a court focusing on justice and fairness
• Despite the lack of a written contract, the judge recognized the equitable assignment of the store's future profits to the plaintiff.
• The attorney argued that even though there was no formal agreement, the bank's actions reflected an equitable assignment of the debts.
• While there was no formal deed of transfer, the court acknowledged the equitable assignment of the property based on the circumstances.
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Financiers and lessors often take an assignment over debts or certain rights under contracts as part of their security package. Depending on how this is done, an assignment can either be characterised as a legal or equitable assignment under English law. Stephenson Harwood’s Dipesh Bharania explains

A key difference between a legal and equitable assignment is the ability of the assignee, be it a financier or lessor, to bring proceedings in its own name against the debtor for payment of the debt owed, or to enforce rights in the contract.

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A legal assignee has this right, but there is a question over whether an equitable assignee has this right or not.

In the case of General Nutrition Investment Company v Holland and Barrett International Ltd and another [2017] EWHC 746 Ch, the High Court held that the beneficiary of an equitable assignment did not have the right to bring proceedings in its own name, and had to do so jointly with the assignor which had assigned rights in the underlying contract.

This raises questions about the equitable assignment, as it appears to contradict other judgments which permit an equitable assignee to take proceedings in its own name. The predecessor company of General Nutrition Investment Company (GNIC) entered into a trade mark licence agreement in March 2003 with Holland and Barrett (H&B) allowing H&B to use certain trademarks in the UK.

After complex internal restructuring, the original contracting party had been dissolved and GNIC was the successor company, which as assignee had been assigned both the rights under the original trademark licence agreement, and the rights to the trademarks themselves. GNIC alleged that H&B was in breach of the licence agreement and served a number of notices of termination on H&B purporting to terminate the agreement.

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The court had to decide whether any of these notices of termination were effective, and whether GNIC had the right to serve such notices, and bring and maintain proceedings against H&B in its own name.

The formalities for a legal assignment are set out in Section 136 of the Law of Property Act 1925, including that the assignment must be:

In writing and executed by the assignor “Absolute” and unconditional, Not be expressed to be “by way of charge”, and Notified in writing to the person against whom the assignor could enforce the assigned rights – usually the other contracting party.

It can often suit the assignor, the assignee and the third party to allow the assignor to deal with the third party, for notice not to be given (certainly initially) and the assignee to remain a silent party. This method is frequently used in financing documents, with notice only being given at a later date (rather than at the time of assignment) when there is a possibility of enforcement on the horizon.

An equitable assignment tends to be created when an assignment does not meet one or more of the requirements for a legal assignment. The main differences between a legal and an equitable assignment are priority (and the established principle that the assignee who serves notice first takes priority over any other assignee (where notice is not given)) and an equitable assignee needing to join the assignor as a party in any legal proceedings it brings against the third-party debtor.

However, two recent cases have lessened the distinction in practice between the two. In the Bexhill case the Court of Appeal recognised that an equitable assignee could take action in its own name without joining in the assignor. In the Ardila case, where notice had been given to the contracting party, the High Court looked at the terms of the notice and decided that what had seemed to be a legal assignment was in fact an equitable assignment because the wording of the notice seemed to retain rights for the assignor. The court used this reasoning to declare it an equitable assignment, despite the notice having been given as required.

Returning to the case in point, after the internal reorganisation and subsequent assignment of the trade mark licence agreement to GNIC, no notices of such assignment were served on H&B by the assignor prior to the purported termination of the agreement or the issue of proceedings. GNIC maintained that as it took the place of its predecessor as the “Licensor”, it became the body entitled to exercise rights of termination under the agreement. H&B’s contention was that, as an equitable assignee, GNIC did not have the right to terminate the agreement or bring proceedings in its own name.

It is widely accepted that, until a notice of assignment is given, and (i) the third party can validly discharge its obligations under the contract to the assignor, and (ii) the third party may raise against the assignee any defence or set-off which he could have raised against the assignor (provided that the matter on which the defence is based arose before notice was received) and the contracting party and assignor can amend the terms of the contract without the assignee’s consent.

The High Court considered that previous case law on this issue was binding as it had not been overruled or materially distinguished in any subsequent cases heard, and held that notice to the contracting third party is necessary to perfect the right of the assignee. Additional weight was given to the fact that a substantive contractual right (in this case, the right to terminate the licence agreement) had been assigned rather than just the assignment of a debt. Consequently, the contractual relationship between the parties was seeking to be amended and therefore the third party was entitled to see that such change was being effected by a party which had the right to do so and whom it knew to have such rights. The Court maintained that H&B cannot be expected to accept a notice of termination from an entity which turns out to be an assignee when it had never been given notice of that assignment.

While the High Court accepted that this decision may be appealed, this has raised a question about equitable assignments and the rights of the equitable assignee under English law. In the meantime, in practice, parties will have to scrutinise what type of right they are seeking, whether in security or as a full legal assignment and opt for the method which provides the clearest outcome possible as the law stands when they take the assignment. Anyone taking an assignment of the benefit of a contract should clearly ensure that notice is served on the other contracting party if it wants to be sure it can act in its own name under that contract against the other contracting party if need be.

Otherwise, there is a risk that an equitable assignee will be unable to enforce substantive contractual rights without having to join in the assignor in proceedings. That said, it may still be commercially preferable to have an equitable assignment for particular financing and leasing structures where it is not thought difficult to join the assignor at a later date if need be. In this case it was not possible, as the assignor had been dissolved. Advice should be sought about the type of assignment to be taken in each transaction pending further clarification from the courts.

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Equitable assignment

Practical law uk glossary 2-107-6540  (approx. 3 pages).

• The assignor can inform the assignee that he transfers a right or rights to him.
• The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.
• General Contract and Boilerplate

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V. I. Lenin

The tasks of the working women’s movement in the soviet republic, speech delivered at the fourth moscow city conference of non-party working women, september 23, 1919.

Delivered: 23 September, 1919 First Published: Pravda No. 213, September 25, 1919 ; Published according to the text of the pamphlet, V. I. Lenin, Speech at the Working Women’s Congress, Moscow, 1919, verified with the Pravda text Source: Lenin’s Collected Works , 4th English Edition, Progress Publishers, Moscow, 1965, Volume 30, pages 40-46 Translated: George Hanna Transcription/HTML Markup: David Walters & Robert Cymbala Copyleft: V. I. Lenin Internet Archive (www.marx.org) 2002. Permission is granted to copy and/or distribute this document under the terms of the GNU Free Documentation License

Comrades, it gives me pleasure to greet a conference of working women. I will allow myself to pass over those subjects and questions that, of course, at the moment are the cause of the greatest concern to every working woman and to every politically-conscious individual from among the working people; these are the most urgent questions—that of bread and that of the war situation. I know from the newspaper reports of your meetings that these questions have been dealt with exhaustively by Comrade Trotsky as far as war questions are concerned and by Comrades Yakovleva and Svidersky as far as the bread question is concerned; please, therefore, allow me to pass over those questions.

I should like to say a few words about the general tasks facing the working women’s movement in the Soviet Republic, those that are, in general, connected with the transition to socialism, and those that are of particular urgency at the present time. Comrades, the question of the position of women was raised by Soviet power from the very beginning. It seems to me that any workers’ state in the course of transition to socialism is laced with a double task. The first part of that task is relatively simple and easy. It concerns those old laws that kept women in a position of inequality as compared to men.

Participants in all emancipation movements in Western Europe have long since, not for decades but for centuries, put forward the demand that obsolete laws be annulled and women and men be made equal by law, but none of the democratic European states, none of the most advanced republics have succeeded in putting it into effect, because wherever there is capitalism, wherever there is private property in land and factories, wherever the power of capital is preserved, the men retain their privileges. It was possible to put it into effect in Russia only because the power of the workers has been established here since October 25, 1917. From its very inception Soviet power set out to be the power of the working people, hostile to all forms of exploitation. It set itself the task of doing away with the possibility of the exploitation of the working people by the landowners and capitalists, of doing away with the rule of capital. Soviet power has been trying to make it possible for the working people to organise their lives without private property in land, without privately-owned factories, without that private property that everywhere, throughout the world, even where there is complete political liberty, even in the most democratic republics, keeps the working people in a state of what is actually poverty and wage-slavery, and women in a state of double slavery.

Soviet power, the power of the working people, in the first months of its existence effected a very definite revolution in legislation that concerns women. Nothing whatever is left in the Soviet Republic of those laws that put women in a subordinate position. I am speaking specifically of those laws that took advantage of the weaker position of women and put them in a position of inequality and often, even, in a humiliating position, i.e., the laws on divorce and on children born out of wedlock and on the right of a woman to summon the father of a child for maintenance.

It is particularly in this sphere that bourgeois legislation, even, it must be said, in the most advanced countries, takes advantage of the weaker position of women to humiliate them and give them a status of inequality. It is particularly in this sphere that Soviet power has left nothing whatever of the old, unjust laws that were intolerable for working people. We may now say proudly and without any exaggeration that apart from Soviet Russia there is not a country in the world where women enjoy full equality and where women are not placed in the humiliating position felt particularly in day-to-day family life. This was one of our first and most important tasks.

If you have occasion to come into contact with parties that are hostile to the Bolsheviks, if there should come into your hands newspapers published in Russian in the regions occupied by Koichak or Denikin, or if you happen to talk to people who share the views of those newspapers, you may often hear from them the accusation that Soviet power has violated democracy.

We, the representatives of Soviet power, Bolshevik Communists and supporters of Soviet power are often accused of violating democracy and proof of this is given by citing the fact that Soviet power dispersed the Constituent Assembly. We usually answer this accusation as follows; that democracy and that Constituent Assembly which came into being when private property still existed on earth, when there was no equality between people, when the one who possessed his own capital was the boss and the others worked for him and were his wage-slaves-that was a democracy on which we place no value. Such democracy concealed slavery even in the most advanced countries. We socialists are supporters of democracy only insofar as it eases the position of the working and oppressed people. Throughout the world socialism has set itself the task of combating every kind of exploitation of man by man. That democracy has real value for us winch serves the exploited, the underprivileged. If those who do not work are disfranchised that would be real equality between people. Those who do not work should not eat.

In reply to these accusations we say that the question must be presented in this way—how is democracy implemented in various countries? We see that equality is proclaimed in all democratic republics but in the civil laws and in laws on the rights of women—those that concern their position in the family and divorce—we see inequality and the humiliation of women at every step, and we say that this is a violation of democracy specifically in respect of the oppressed. Soviet power has implemented democracy to a greater degree than any of the other, most advanced countries because it has not left in its laws any trace of the inequality of women. Again I say that no other state and no other legislation has ever done for women a half of what Soviet power did in the first months of its existence.

Laws alone, of course, are not enough, and we are by no means content with mere decrees. In the sphere of legislation, however, we have done everything required of us to put women in a position of equality and we have every right to be proud of it. The position of women in Soviet Russia is now ideal as compared with their position in the most advanced states. We tell ourselves, however, that this is, of course, only the beginning.

Owing to her work in the house, the woman is still in a difficult position. To effect her complete emancipation and make her the equal of the man it is necessary for the national economy to be socialised and for women to participate in common productive labour. Then women will occupy the same position as men.

Here we are not, of course, speaking of making women the equal of men as far as productivity of labour, the quantity of labour, the length of the working day, labour conditions, etc., are concerned; we mean that the woman should not, unlike the man, be oppressed because of her position in the family. You all know that even when women have full rights, they still remain factually downtrodden because all housework is left to them. In most cases housework is the most unproductive, the most barbarous and the most arduous work a woman can do. It is exceptionally petty and does not include anything that would in any way promote the development of the woman.

In pursuance of the socialist ideal we want to struggle for the full implementation of socialism, and here an extensive field of labour opens up before women. We are now making serious preparations to clear the ground for the building of socialism, but the building of socialism will begin only when we have achieved the complete equality of women and when we undertake the new work together with women who have been ’emancipated from that petty, stultifying, unproductive work. This is a job that will take us many, many years.

This work cannot show any rapid results and will not produce a scintillating effect.

We are setting up model institutions, dining-rooms and nurseries, that will emancipate women from housework. And the work of organising all these institutions will fall mainly to women. It has to be admitted that in Russia today there are very few institutions that would help woman out of her state of household slavery. There is an insignificant number of them, and the conditions now obtaining in the Soviet Republic—the war and food situation about which comrades have already given you the details—hinder us in this work. Still, it must be said that these institutions that liberate women from their position as household slaves are springing up wherever it is in any way possible.

We say that the emancipation of the workers must be effected by the workers themselves, and in exactly the same way the emancipation of working women is a matter for the working women themselves. The working women must themselves see to it that such institutions are developed, and this activity will bring about a complete change in their position as compared with what it was under the old, capitalist society.

In order to be active in politics under the old, capitalist regime special training was required, so that women played an insignificant part in politics, even in the most advanced and free capitalist countries. Our task is to make politics available to every working woman. Ever since private property in laud and factories has been abolished and the power of the landowners and capitalists overthrown, the tasks of politics have become simple, clear and comprehensible to the working people as a whole, including working women. In capitalist society the woman’s position is marked by such inequality that the extent of her participation in politics is only an insignificant fraction of that of the man. The power of the working people is necessary for a change to be wrought in this situation, for then the main tasks of politics will consist of matters directly affecting the fate of the working people themselves.

Here, too, the participation of working women is essential —not only of party members and politically-conscious women, but also of the non-party women and those who are least politically conscious. Here Soviet power opens up a wide field of activity to working women.

We have had a difficult time in the struggle against the forces hostile to Soviet Russia that have attacked her. It was difficult for us to fight on the battlefield against the forces who went to war against the power of the working people and in the field of food supplies against the profiteers, because of the too small number of people, working people, who came whole-heartedly to our aid with their own labour. Here, too, there is nothing Soviet power can appreciate as much as the help given by masses of non-party working women. They may know that in the old, bourgeois society, perhaps, a comprehensive training was necessary for participation in politics and that this was not available to women. The political activity of the Soviet Republic is mainly the struggle against the landowners and capitalists, the struggle for the elimination of exploitation; political activity, therefore, is made available to the working woman in the Soviet Republic and it will consist in the working woman using her organisational ability to help the working man.

What we need is not only organisational work on a scale involving millions; we need organisational work on the smallest scale and this makes it possible for women to work as well. Women can work under war conditions when it is a question of helping the army or carrying on agitation in the army. Women should take an active part in all this so that the Red Army sees that it is being looked after, that solicitude is being displayed. Women can also work in the sphere of food distribution, on the improvement of public catering and everywhere opening dining-rooms like those that are so numerous in Petrograd.

It is in these fields that the activities of working women acquire the greatest organisational significance. The participation of working women is also essential in the organisation and running of big experimental farms and should not take place only in isolated cases. This i5 something that cannot be carried out without the participation of a large number of working women. Working women will be very useful in this field in supervising the distribution of food and in making food products more easily obtainable. This work can well be done by non-party working women and its accomplishment will do more than anything else to strengthen socialist society.

We have abolished private property in land and almost completely abolished the private ownership of factories; Soviet power is now trying to ensure that all working people, non-party as well as Party members, women as well as men, should take part in this economic development. The work that Soviet power has begun can only make progress when, instead of a few hundreds, millions and millions of women throughout Russia take part in it. We are sure that the cause of socialist development will then become sound. Then the working people will show that they can live and run their country without the aid of the landowners and capitalists. Then socialist construction will be so soundly based in Russia that no external enemies in other countries and none inside Russia will be any danger to the Soviet Republic.

Collected Works Volume 30 Collected Works Table of Contents Lenin Works Archive