beneficial interests and mortgages

Question 1

what case provided the classic definition of what a mortgage is?

Answer 1

Santley v Wilde 1899

Question 2

what are the different types of mortgage?

Answer 2

repayment mortgage- payments you make each month, by the end would have repaid whole amount
interest only mortgage- payments made every month cover the interest

Question 3

creating a legal mortgage in registered land

Answer 3

• grant must take the form of a legal charge s23,1 LRA
• charge must be set out as a deed s52,1 LPA
• where the land is already registered, the grant is a registrable disposition s27,2f
• until registration, will not operate at law- s27,1 LRA

Question 4

what happens if written formalities are complied with but there is a failure to register in accordance with s27 LRA?

Answer 4

this will mean the mortgage will not operate at law, but an equitable mortgage may instead arose

Question 5

what does it mean for the mortgage if there is a failure to use a deed?

Answer 5

the mortgage cannot be legal, but an equitable mortgage may arise

Question 6

what are the different rights and remedies of the mortgagor/ lender?

Answer 6

• right to payment under the contract
• right to possession
• power of sale
• remedy of foreclosure
• right to appoint a receiver

Question 7

right to payment remedy

Answer 7

• non payment- mortgagor can sue at common law for sums outstanding
• this right exists after re possession and sale of the property

Question 8

right to possession remedy

Answer 8

• will usually obtain a court order first to confirm they can take possession
• when a mortgagor seeks for a court order, this triggers a statutory jurisdiction for the court in relation to residential property under s36 admin of j a

Question 9

what was held in the case of cheltenham and Gloucester bs v norgan 1996 in relation to what is a reasonable period?

Answer 9

COA held that in determining what is considered a reasonable period under s36, the starting point is the full remaining term of the mortgage

Question 10

power of sale remedy

Answer 10

• implied into every mortgage by deed under s101 LPA
• for the mortgagee to sell a property in this, the POS must both arise and be exercisable
• will not be exercisable when any of the 3 conditions stated in s103 is satisfied

Question 11

appointing a receiver and foreclosure remedy

Answer 11

• implied, arises and exercisable in the same way as POS
• means the mortgagee avoids having to take possession and manage the mortgaged property
• is now rarely used

Question 12

what is a surety?

Answer 12

someone who signs for a mortgage for the benefit of helping to fund their spouses business

Question 13

what does a surety need to prove if they want to prove undue influence for the signing of a mortgage?

Answer 13

need to prove:
1. they were actually unduly influenced into signing
2. that a presumption of undue influence should arise