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Legal origins and mortgage finance contradictions

Kenneth Appiah Donkor-Hyiaman (School of Real Estate and Planning, University of Reading, Reading, UK)
Kenneth Nii Okai Ghartey (Department of Law, Lancaster University–Ghana Campus, Accra, Ghana)

International Journal of Housing Markets and Analysis

ISSN: 1753-8270

Article publication date: 6 February 2017

Abstract

Purpose

This study aims to examine why Ghana has English legal origins (hypothesised as a legal framework that promotes financial development) but has not developed a well-functioning mortgage finance market.

Design/methodology/approach

The authors adopt the institutional autopsy approach developed by Milhaupt and Pistor (2008). This study is not a cross-country study but a historical examination of Ghana’s mortgage finance regulatory framework. The institutional autopsy framework considers the iterative process of change in a system and allows for context-specific system analysis.

Findings

The authors note that for a long period of about 68 years (1940-2008), some of the legal rules regulating mortgage finance were not typical of the hypothesised characteristics of the English common law tradition. These rules, including, interest rate controls, excessive entry barriers, loan default guarantee discriminations and complex foreclosure procedures, tended to inadequately protect creditors. In the context of the history of military rule and law-making, judicial discretion that could have promoted legal efficiency and strengthened contract enforcement was also limited. During this period, the legal system demonstrated a concentrated and coordinative character. New legislation in the form of the Home Mortgage Finance Act 2008 (Act 770) attempts to resolve some of these bottlenecks and improve creditor rights protection.

Research limitations/implications

The study focuses solely on how the legal institution affects creditor protection and mortgage finance in Ghana.

Practical implications

Policy-wise, the study deepens the understanding of the channels through which the law affects the development of mortgage finance.

Originality/value

To the best of the authors’ knowledge, the methodology used (institutional autopsy) is novel in the context of analysing mortgage finance.

Keywords

Citation

Donkor-Hyiaman, K.A. and Ghartey, K.N.O. (2017), "Legal origins and mortgage finance contradictions", International Journal of Housing Markets and Analysis, Vol. 10 No. 1, pp. 156-179. https://doi.org/10.1108/IJHMA-03-2016-0019

Publisher

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Emerald Publishing Limited

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