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Land Law > Mortgages > Flashcards

Mortgages Flashcards

1
Q

What is a mortgage?

A

A secured loan by granting lender proprietary interest in relevant land/property

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2
Q

if the land is registered, what is the mortgage known as?

A

A Charge

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3
Q

What is the legislation for creation of a legal Mortgage?

A

Section 41 of LRA (Northern Ireland) 1970

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4
Q

What is required for an Equitable mortgage?

A

Must be an assignment in wiring signed by the assignor

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5
Q

What legislation governs assignment of equitable interest?

A

Section 6 of the Statue of Frauds (Ireland) 1695

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6
Q

Equitable mortgages in unregistered land can arise in various ways, what are they?

A
  • Agreement for a legal mortgage

- Deposit of title deeds

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7
Q

What provides the the deposit of a land certificate or certificate of charge suffices as the creation of an equitable mortgage?

A

Section 50 of the Land Registration (NI) Act 1970

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8
Q

under what legislation is governed how a legal mortgage of uregistered freehold land is created in England?

A

Section 85(1) of the Law of Property Act 1925.

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9
Q

what does Section 85(1) of the Law of Property Act 1925 state?

A

mortgagor executes a charge by deed. ‘the mortgagee obtains ‘same protection, powers and remedies’ as if the mortgage had been created by a long lease.

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10
Q

in England what governs legal mortgages of registered land?

A

section 23(1) of the land registration act 2002.

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11
Q

in England, how is an equitable mortgage created?

A

cannot be by deposit of title deeds, only if the mortgagor has an equitable interest in the land.

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12
Q

what case restricts deposit of title deeds for an equitable mortgage in England?

A

United Bank of Kuwait v Sahib [1996]

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13
Q

what statue restricts deposit of title deeds for an equitable mortgage in England?

A

Section 2 of the Law of Property Act 1989

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14
Q

What is a mortgagee owed?

A

a contractual debt and can sue if the debt is not repaid.

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15
Q

by what 5 methods can a lender enforce remedy of breach of contract?

A 
Possession
Sale
Judicial Sale
Appointment of a receiver 
Foreclosure
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16
Q

what case gives the mortgagee an automatic right to possession?

A

Four Maids v Dudley Marshall (1957)

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17
Q

does the mortgagee have an automatic right of possession in an equitable mortgage?

A

debatable. may need court order for possession.

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18
Q

what statute governs adjourning proceedings of possession of a dwelling house?

A

S. 36 of the Administration of Justice Act 1970

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19
Q

What case law supports adjourning proceedings of possession of a dwelling house?

A

Cheltenham & Gloucester Building Society v Norgan [1996]

National & Provincial Building Society v Land [1996]

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20
Q

Wrigley v Gill [1905]?

A

if the mortgagee takes possession of the property, he can use the rents and profits in the payment of funds owed.

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21
Q

Horsham Properties v Clarke and Beech [2009]?

A

a mortgagee has the power to sell the mortgaged property without court intervention.

22
Q

how to sell. property under an equitable mortgage?

A

the mortgagee must apply to the court for possession and sale.

23
Q

S. 19-20 of the Conveyancing Act 1881?

A

Circumstances in which the power of sale can be used as regards legal mortgages

24
Q

S. 19(1)(i) Conveyacning Act 1881?

A

the power of sale arises when ‘the mortgage money has become due.’

25
Q

S 20 Conveyancing Act 1881?

A

Three conditions of the power of sale:

  1. lender must serve notice to pay within 3 months
  2. payments must be in arrears for two months
  3. there must be a breach of the provision in the mortgage deed.
26
Q

what governs the power of sale in England?

A

S. 103 of the Law of Property Act 1925.

27
Q

101(1)(i) Law of Property Act?

A

power of sale, in England, is implied into every mortgage made by deed.

28
Q

S. 21(6) Conveyancing Act 1881?

A

‘the mortgagee… shall not be answerable for any involuntary loss happening in or about the exercise of execution of the power of sale conferred bytes act.’

29
Q

Kennedy v De Trafford [1897]

Haddinton Island Quarry Co Ltd v Huson [1911]?

A

the mortgagee is not a trustee for the mortgagor in relation to the power of sale.

30
Q

Standard Chartered Bank v Walker [1982]?

A

the mortgagee has a duty of care to get the best price that is reasonably obtainable.

31
Q

Cuckmere Brick Co v Mutual Finance [1971]

Wilson v Halifax plc [2002]?

A

The mortgagee does not have to take all possible steps to get the best price, only such steps that are reasonable

32
Q

Michael v Miller [2004]?

A

the mortgagee does not have to take the steps that an owner might take in selling the property.

33
Q

Parker-Tweedale v Dunbar [1991]?

A

The duty is owed only to the mortgagor and not to any other person who may have an interest in the property.

34
Q

Section 36 of the Building Societies Act (NI) 1967?

A

a building society selling a property as a mortgagee is under a duty to take reasonable case to ensure its the best price reasonably obtainable.

35
Q

Henderson v Astwood [1894]?

A

the mortgagee cannot sell the property to himself.

36
Q

Nutt v Easton [1899]?

A

mortgagee cannot acquire property indirectly through an agent.

37
Q

Hodson v Deans [1903]?

A

an employee of a mortgage institution cannot purchase mortgaged property in a sale by his employer.

38
Q

Bradford & Bingley v Ross [2005]

A

If a mortgagee sells the property to a company in which he has an interest, burden of proof is in establishing that the sale was at the best price possible obtainable lies with mortgagee.

39
Q

S. 21(3) of Conveyancing Act 1881?

A

mortgagee is a trustee of the proceeds of the sale by applying.

40
Q

S. 21(3) of the Conveyancing Act 1881- what are the 4 criteria in applying?

A
  1. any prior encumbrances must be discharged
  2. in payment of all expenses incurred
    in discharge of the money due under mortgage
    residue to be paid to the mortgagor.
41
Q

S. 21(1) Conveyancing Act 1881?

A

Purchaser received such estate and interest therein.’

42
Q

Schedule 7, Part 1, Para 5(1) LRA (NI) 1970

A

land by a charge; the estate f interest which is subject to the charge will be sold.

43
Q

what happens under judicial sale?

A

proceeds will be used to pay off the mortgage, sum remaining given to mortgagor.

44
Q

19(1) Conveyancing Act 1881?

A

Appointment of a receiver.

45
Q

how can an equitable mortgagee get an appointment of receiver?

A

by application to the court.

46
Q

when does the power to appoint receiver arise?

A

when the mortgage money becomes due

47
Q

what is the function of a receiver?

A

to manage mortgaged property and to ensure that the rents and profits are used to pay the interests due on the mortgage.

48
Q

Section 24(2) Conveyancing Act 1881?

A

‘the receiver shall be deemed to be the agent of the mortgagor and the mortgagor shall be solely responsible for the receiver’s acts or defaults, unless the mortgage deed otherwise provides.’

49
Q

what law governs the appointment of a receiver in England?

A

S. 101 of the Law of property act 1925

50
Q

what is foreclosure?

A

a proceeding by which the mortgagee seeks to have the mortgagor’s right to redeem the property extinguished/

51
Q

when does the right of foreclosure arise?

A

when the legal date for redemption has passed.

52
Q

s 91(2) Law of Property Act 1925

A

the court has the power order sale in lieu of foreclosure

Land Law (2 decks)

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