Mortgage Possessions

Question 1

The mortgage is equitable only

Answer 1

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

Question 2

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

Answer 2

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

Question 3

Section 36 AJA 1970

Answer 3

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

Question 4

Section 8 AJA 1973

Answer 4

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

Question 5

D propose to repay arrears, but has poor payment history

Answer 5

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

Question 6

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

Answer 6

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

Question 7

D proposes to sell the property

Answer 7

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

Question 8

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

Answer 8

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

Question 9

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

Answer 9

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

Question 10

D raises HRA defence

Answer 10

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

Question 11

D raises hard circumstances

Answer 11

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

Question 12

D did not receive claim form

Answer 12

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

Question 13

D asks for postponement pending the outcome of other proceedings

Answer 13

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)

Question 14

D argues that the Mortgagors are not present

Answer 14

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

Question 15

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

Answer 15

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

Question 16

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

Answer 16

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

Question 17

D has a counterclaim against C

Answer 17

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

Question 18

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

Answer 18

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.

Question 19

Judge is minded to refuse to make a concurrent money judgment

Answer 19

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

Question 20

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

Answer 20

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.