Hypothecation is a big word for a familiar process.
It’s what happens when a piece of collateral (like a house or car) is offered in order to secure a loan.
Both auto loans and mortgages — something many people will have one day — involve hypothecation.
This means a lender can repossess the asset if the borrower isn’t able to pay on time.
Let’s discuss hypothecation loans in more detail, their pros and cons, and their impacts so you’re ready if you ever need one.
1. What is hypothecation?
Hypothecation is the practice where debtors pledge collateral to secure a debt.
A third party may also pledge collateral for the debtor.
To carry out the pledge, a letter of hypothecation is normally used.
An example of hypothecation is when a debtor enters into a mortgage agreement where a debtor’s house becomes collateral until the mortgage loan is paid off.
While the debtor retains ownership of the collateral, the creditors have the right to seize ownership if the borrower defaults.
Hypothecation helps to mitigate the creditor’s risk.
If a debtor cannot pay, then the creditor can repossess the collateral, sell it, and compensate for their lacking cash inflows.
However, hypothecation isn’t used in every type of lending.
It is unlikely to be used in most personal loans.
For example, you won’t see hypothecation used with a credit card.
Hypothecation only impacts secured loans like a car or house.
2. How do mortgages work?
Hypothecation is commonly used in home loans.
When you purchase your home using a mortgage, your home is used as collateral.
If you’re unable to make all your payments on your mortgage, then your home could be seized.
Though your name is on the title and deed, you must continue to meet the terms of the contract otherwise your lender could repossess your home.
3. What’s the difference between a pledge and hypothecation?
A pledge is an asset that’s guaranteed to go to a new owner.
For example, a pledge of $1,000 is guaranteed money that will go to support a cause.
In hypothecation, on the other hand, the goal is not to change the owners of the asset being pledged as collateral.
Rather, the asset is viewed as a valuable commodity that can be claimed only if the investor defaults on their agreement.
4. How is hypothecation used in real estate?
There are a number of ways that hypothecation is used in real estate.
Here are the most common scenarios:
Mortgage: hypothecation is most often used when a borrower takes out a mortgage.
Construction Loan: as with a mortgage, when a borrower takes out a construction loan, an asset must be hypothecated.
However, since a building has not yet been built, the lender cannot secure their loan against the planned construction.
Thus, alternative assets, like a rental property or car, may need to be used as collateral instead.
Commercial Loan: in commercial real estate, a lender may require that additional collateral be hypothecated.
This is because commercial assets can pose a higher risk than residential properties.
Alternatively, a borrower may agree to hypothecate additional assets in order to improve the terms of the loan or to lower the down payment required.
5. How is hypothecation used in investing?
Hypothecation can be used when an investor buys securities using borrowed funds.
This is called buying on margin.
When you do this, you acknowledge that the securities purchased can be sold if there’s a margin call.
A margin call is defined as borrowing money from a broker to make an investment and having your account fall below the required amount.
When your margin account falls short, you agree to sell those securities.
6. What are the elements of the legal documents involved?
A hypothecation agreement or letter is the legal paperwork that outlines the contractual relations between the borrower and the lender.
Here are some of the most important clauses of a hypothecation letter or agreement that you should understand before signing one.
Obligations of the parties – the liabilities and rights of both the lender and borrowers regarding the loan amount given and the asset offered as collateral against the loan
Security – what type of security is provided as collateral against the loan advanced
Title and ownership – makes it clear who holds title to the hypothecated assets as well as the earnings generated from them
Interest and default interest rate – the applicable interest rate to be paid on the loan until the borrower completes repayment
Repayment of hypothecation – the parties’ agreement on the duration within which the debt must be repaid along with interest
Insolvency – explains how the lender will recover the unpaid loan in case the borrower is declared insolvent by a court of law
Representations and warranties – states all the assurances and assertions offered by the lender and borrower under the agreement; also states that the parties involved agree to offer all necessary and required help to each other to fulfill their respective duties and obligations with due diligence
7. How is hypothecation used in other loans?
Most commonly, you’ll see hypothecation used in mortgages.
However, there are some other loans where this tool may be used for as well.
For example:
Auto loans: This type of hypothecation is when you agree to use your car, motorcycle, RV, or other vehicle as collateral to secure your loan
Home equity loans: This type of hypothecation is when your home is used to secure a home equity loan (just like with a mortgage)
Business loans: This type of hypothecation occurs when you take out a loan to pay for equipment for your business
8. What are the top reasons to hypothecate?
For many, this sounds risky.
Why would you want to risk losing your assets if you can avoid it?
Sometimes, despite the risk, you must hypothecate (and sometimes hypothecate additional assets) if you need to utilize financing options to afford land or commercial real estate.
That said, there are some other highly tangible benefits of using hypothecation.
Here’s what you should know.
If you want to reduce your down payment:
When you hypothecate additional assets, it can reduce the required down payment.
This is due to the fact that a borrower is pledging a high-value asset to guarantee their loan.
This said, not every lender will agree to lower their down payment requirements in exchange for additional collateral.
If you’re getting commercial property loans:
It is common for a commercial financial lender to request to hypothecate a secondary asset for additional security on a high-ticket commercial real estate loan.
If you have little experience with mortgages:
When you offer up a hypothecated asset as collateral, it provides the lender additional security when they’re working with borrowers who may not be as reliable or financially sound.
It’s ideal for those with lower credit scores or lower net worth.
9. Why does hypothecation matter?
Hypothecation is a formal agreement that you enter.
When you fail to meet the conditions of a loan (e.g., making payment on your car or home), then your property could get taken to cover those missed payments.
Missing a payment can lead to home foreclosure and leave you without a place to live.
When hypothecation is a factor in your situation, it’s important to realize when your property can be seized.
If you’re in a financially difficult situation and aren’t able to pay your bills, you should consider prioritizing your hypothecated loans.
For example, you should always make your mortgage and car payments before credit card payments, so you don’t have those assets repossessed.
Note: Failing to make your credit card payments can still hurt your credit score and damage possible lending opportunities in the future.
However, as there’s no hypothecation agreement, you don’t have any collateral dependent on your payment.
10. What is rehypothecation?
Rehypothecation is when a lender uses your collateral as collateral of its own.
This may occur if your lender needs to meet certain contractual agreements and uses your property to do so.
Rehypothecation was far more common before the 2008 economic crisis.
If collateral continues to get rehypothecated, it becomes less clear who actually owns the asset.
This occurs in the investing world as well, and if you want to avoid rehypothecation, open traditional brokerage cash accounts instead of margin accounts.
11. What are alternatives to hypothecation?
The main alternative you have to hypothecation is paying cash for an asset.
Hypothecation comes into the picture when you use a lender and finance an asset.
Often, this is easier said than done.
Not many people can afford to buy a house outright.
However, some can purchase less expensive assets, like cars, with cash.
In terms of investing, the way to avoid hypothecation is to avoid trading on margin or engaging in short sales.
Be mindful that short selling is very risky because the potential for loss is unlimited.
Unless you can afford to lose your entire investment, don’t do it!
12. What are the pros and cons of hypothecation?
Pros
Hypothecation makes it possible to afford large purchases.
Without financing the transaction, many people aren’t able to afford large purchases like houses or cars.
Hypothecation can help to reduce the cost of borrowing.
If you choose to secure a loan, then you could receive a lower interest rate than you would if you opted for an unsecured loan.
Hypothecation allows a borrower to qualify with less-than-stellar credit.
If creditors use hypothecation, they are able to accept borrowers who pose a greater risk (e.g., have lower credit scores).
Cons
Hypothecation may cause the borrower to lose the asset if they default.
Thus, it’s critical that you make payments on time.
Hypothecation can complicate the application process.
Before agreeing to finance a purchase, mortgage lenders will often require an appraisal.
This extends the application process and costs more time and money.
Auto lenders will often require an appraisal (especially in the case of refinance loans).
Hypothecation can result in expensive and long-term legal action.
If you fail to pay your contracted amount and your asset has been seized and sold off, your lender can still pursue additional legal action against the borrower to secure the rest of the loan amount.
This outcome puts you in an expensive and long-term legal situation that’ll leave you wishing you had never entered into the agreement to begin with.
Hypothecation can make you responsible for paying more in interest.
When you hypothecate additional assets to reduce your down payment, the loan amount will increase.
Keep in mind that this increases the overall price you’re paying and also makes you responsible for a larger sum of interest.
So, don’t automatically assume you’re getting a deal.
13. Is hypothecation worth it?
While there are pros and cons to this practice, there are many cases in which you won’t have a choice unless you can afford to buy with cash.
Take a home purchase for example.
Unless you’ve saved up every penny you need to buy a home, then utilizing hypothecation as part of a financing deal is likely the only way to go.
This holds true for a vehicle as well.
Another situation in which you may see hypothecation is with your brokerage account.
Hypothecation may be a worthwhile option because it can provide leverage for your portfolio and allow you to increase your gains.
However, if you’re not an experienced investor, then it can take time to learn about margin trading and short sales.
And you’ll want to learn about the risks associated with each of these transactions before you get in too deep.
Final Thoughts
Risk is a factor in any purchase or investment you make.
Hypothecation is one way that lenders protect against that risk, and it benefits the borrower as they have access to loans they wouldn’t otherwise.
However, hypothecation can also have big consequences if the borrower fails to make payments on time or otherwise hold up their end of the agreement.
If you ever find yourself in a sticky financial situation where you’re not sure if you’ll be able to make payments on time, we suggest talking to your lender immediately.
They may be able to help you out with alternative payment options that won’t require you to borrow additional money and increase your financial burden.
Additional Resources
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Disclaimer: we are not lawyers, accountants or financial advisors and the information in this article is for informational purposes only. This article is based on our own research and experience and we do our best to keep it accurate and up-to-date, but it may contain errors. Please be sure to consult a legal or financial professional before making any investment decisions.
Prior to starting Gokce Capital, Erika received a Bachelor of Architecture from the University of Southern California and a graduate degree in Urban Policy from Columbia University. She worked as both an architectural designer and engineer in New York before joining the New York City Department of Housing Preservation and Development.
Erika currently lives in the New York Metropolitan area with her spouse, daughter and cat. She is originally from Chicago and still considers herself a midwesterner at heart.
Erika also loves to read, write and travel (fun fact, she has visited all 50 states and more than 30 countries!). Her new book, Land Investing Mistakes: 11 True Stories You Need To Know Before Buying Land, is now available on Amazon.