Mortgage Possessions Flashcards
The mortgage is equitable only
Barclays Bank Ltd v Bird - Equitable mortgagee entitled to possession order
(Seek order vesting term of years under s.90 LPA 1925)
What is a ‘reasonable period’ under s.36 AJA 1970?
C&G BS v Norgan: When calc’g a ‘reasonable period’, the starting point is the remaining term of the mortgage
Section 36 AJA 1970
Power to delay giving M’gee possession if M’gor can repay sums due within a reasonable period
Section 8 AJA 1973
Ignore early repayment provisions when calc’g ‘sums due’
D propose to repay arrears, but has poor payment history
Abbey National v Mewton Court entitled to infer from poor payment record that unlikely to make future payments
D proposes to repay arrears, but this is beyond his means
First National Bank v Syed Court should not exercise its discretion where the required payments are manifestly beyond D’s means
D proposes to sell the property
Mortgage Services Funding PLC v Steele: Property can be sold just as well by Mortgagee
D proposes to sell the property, but is in negative equity
Negative equity: s.36 discretion not available. Cheltenham & Gloucester v Krausz
Tenants app. under MR(PoTe)A 2010 for 2 month postponement
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
D raises HRA defence
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
D raises hard circumstances
Abbey National Mortgages Plc v Bernand Cannot suspend PO, however hard the circumstances, if no prospect of reducing arrears
D did not receive claim form
Akram v Adam If CF was posted to D’s address, this is good service
D asks for postponement pending the outcome of other proceedings
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)
D argues that the Mortgagors are not present
Alliance Building Society v Shave PO may be made against occupier in absence of mortgagors, as this would not prejudice mortgagors in their absence
D is an unauthorised tenant and argues that the Mortgagee must respect his tenancy
Britannia Building Society v Earl Unauthorised tenant becomes a statutory tenant as against the Mortgagor, but not as against the Mortgagee