Mortgage Possessions Flashcards

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1
Q

The mortgage is equitable only

A

Barclays Bank Ltd v Bird - Equitable mortgagee entitled to possession order
(Seek order vesting term of years under s.90 LPA 1925)

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2
Q

What is a ‘reasonable period’ under s.36 AJA 1970?

A

C&G BS v Norgan: When calc’g a ‘reasonable period’, the starting point is the remaining term of the mortgage

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3
Q

Section 36 AJA 1970

A

Power to delay giving M’gee possession if M’gor can repay sums due within a reasonable period

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4
Q

Section 8 AJA 1973

A

Ignore early repayment provisions when calc’g ‘sums due’

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5
Q

D propose to repay arrears, but has poor payment history

A

Abbey National v Mewton Court entitled to infer from poor payment record that unlikely to make future payments

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6
Q

D proposes to repay arrears, but this is beyond his means

A

First National Bank v Syed Court should not exercise its discretion where the required payments are manifestly beyond D’s means

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7
Q

D proposes to sell the property

A

Mortgage Services Funding PLC v Steele: Property can be sold just as well by Mortgagee

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8
Q

D proposes to sell the property, but is in negative equity

A

Negative equity: s.36 discretion not available. Cheltenham & Gloucester v Krausz

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9
Q

Tenants app. under MR(PoTe)A 2010 for 2 month postponement

A

Following conditions must be met:
Land includes a dwelling house
There is an unauthorised tenancy
Tenant has made an app. to extend the period of the PO

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10
Q

D raises HRA defence

A

Barclays Bank Plc v Ellis A party seeking to rely on HRA should provide the court with any decisions of the ECHR on which he relies. Mere references to the ECHR do not help the court

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11
Q

D raises hard circumstances

A

Abbey National Mortgages Plc v Bernand Cannot suspend PO, however hard the circumstances, if no prospect of reducing arrears

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12
Q

D did not receive claim form

A

Akram v Adam If CF was posted to D’s address, this is good service

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13
Q

D asks for postponement pending the outcome of other proceedings

A

Albany Home Loans Ltd v Massey Court may take view that there is no realistic prospect of discharging arrears, despite D’s pending proceedings (eg for unfair dismissal)

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14
Q

D argues that the Mortgagors are not present

A

Alliance Building Society v Shave PO may be made against occupier in absence of mortgagors, as this would not prejudice mortgagors in their absence

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15
Q

D is an unauthorised tenant and argues that the Mortgagee must respect his tenancy

A

Britannia Building Society v Earl Unauthorised tenant becomes a statutory tenant as against the Mortgagor, but not as against the Mortgagee

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16
Q

D proposes to sell property, but proceeds of sale will not discharge the debt

A

C&G BS v Krausz Where POS will not discharge debt, s.36 does not empower court to suspend warrant of possession

17
Q

D has a counterclaim against C

A

Citibank Trust v Ayivor Existence of counterclaim does not affect M’gee’s right to PO

18
Q

Someone tries to dispute the claim, but they are not actually in possession

A

Esso Petroleum Co Ltd v Alstonbridge Properties M’gee’s app for PO is simply an app for an order for recovery of land, and not proceedings for enforcing the mortgage. If a person is not actually in possession, they are not parties to the claim: despite the fact that they are entitled to possession.

19
Q

Judge is minded to refuse to make a concurrent money judgment

A

Cheltenham & Gloucester Building Society v Grattidge Mortgagee entitled to money judgment. No inconsistency w/ PO

20
Q

Judge is minded to make a costs order that does not reflect the mortgage provisions

A

Gomba Holdings (UK) Ltd v Minories Finance Ltd (No. 2) The court’s discretion as to costs should usually be exercised so as to reflect contractual rights.