Mortgages

Question 1

traditional method of creating a mortgage- pre 1926

Answer 1

the mortgagor would transfer his estate in the land to the mortgagee as security for the loan. if the mortgagor was to default on the loan, the mortgagee would sell or let the property; alternatively, if the mortgagor paid off the debt in full the estate is conveyed back- redemption

Question 2

operation of s.87- case law

Answer 2

Grand Junction & Co Ltd v Bates [1954]

Question 3

ss.85-87 LPA 1925- how was security provided?

Answer 3

long lease/sublease of the premises or a charge giving the same rights-

Question 4

even if leases of a mortgaged property can be granted by the borrower they don’t bind the lender

Answer 4

Starling v Lloyds TSB Bank [2000]

Question 5

what rights does a mortgagor have?- summary

Answer 5

right to redeem at law and equity, right to sue-s.98 (in repossession proceedings for example), right to grant leases

Question 6

mortgagee has right of possession from when mortgage is created

Answer 6

Four-Maids Ltd v Dudley Marshall (Properties) Ltd [1957]

Question 7

the right to possession held by the mortgage is often restricted by a term in the mortgage and reserved for a case when the mortgagor fails to pay

Answer 7

Birmingham Citizens Permanent Building Society v Caunt [1962]

Question 8

why may a court order be necessary when repossessing especially a residential property

Answer 8

s.6 Criminal Law Act 1977

Question 9

peaceful repossession is also fine, without a court order

Answer 9

Ropaigealach v Barclays Bank plc [1999]

Question 10

court may order a sale as they see fit- which section provides for this + case law?

Answer 10

Barrett v Halifax Building Society [1995]- LPA 1925 s.91 (2). Here the court ordered the mortgagor to conduct the sale, because they could obtain a higher price.

Question 11

what changed as part of the unified regulatory regime?

Answer 11

2nd mortgages are now within the boundaries of the AJA 1970

Question 12

Why could we say this mortgage unification also carried some disadvantages?

Answer 12

Time orders under s.129 CCA remain underused

Question 13

The FSMA 2000 is extraordinarily pro lender

Answer 13

Syed [1991]

Question 14

What are the potential flaws of s.140A CCA?

Answer 14

Campbell v Tyrell [2022]- the debtor must set out in particulars what is actually unfair
-the provision specifically excludes RMCs

Question 15

high value loans are even harder to render unfair by the courts

Answer 15

Bank of Beirut v Moukarzel [2021]- freedom of contract is favoured perhaps