Mortgages

Question 1

Legal Mortgage: charge by way of legal mortgage

Answer 1

s. 23 LRA 2002

Question 2

Legal Mortgage must be created by deed

Answer 2

s. 52(1) LPA 1925

Question 3

Legal Mortgage must be registered against title of registered proprietor

Answer 3

ss. 25 & 27 LRA 2002

Question 4

If there is delay to register a legal mortgage, it loses priority

Answer 4

Barclays Bank v Zaroovabli

Question 5

Equitable mortgage created (1) by written agreement; (2) legal mortgage that does not comply with formalities (signed and witnessed per. s. 1 LP(MP)A 1989); (3) legal mortgage that is not registered.

Answer 5

1. s. 2 LP(MP)A 1989
2. s. 2 LP(MP)A 1989
3. Leeds Permanent Building Society v Famini

Question 6

Equitable mortgage can arise from proprietary estoppel

Answer 6

Kinane v Alimany-Conteh

Question 7

Mortgagee is subject to general rules of priority per

Answer 7

s. 28 & 29 LRA 2002

Question 8

Mortgage can be overridden by an unregistered protected interest per

Answer 8

s. 29 LRA 2002 and Schedule 3

Question 9

Example of equitable owner in actual occupation who overrode mortgage’s priority

Answer 9

Williams & Glyn’s Bank v Boland

Question 10

Mortgagor is only empowered to grant tenancies with permission of mortgagee

Answer 10

Dudley & District Benefit BS v Emerson

Question 11

Acquisition Mortgages: no interest can arise before that of mortgagee

Answer 11

Scott v Southern Pacific Mortgages

Question 12

3rd party deemed to consent to right being subject to those of mortgagee when he knows purchase of property is made with aid of money borrowed from lender; court is generous in finding implied consent given by equitable owner to legal owner

Answer 12

Credit & Mercantile v Kaymuu

Question 13

Remedies of the Mortgagee can be used, simultaneously, sequentially or independently

Answer 13

Alliance and Leicester v Slayford

Question 14

Right to sue for debt

Answer 14

Alliance and Leicester v Slayford

Question 15

Sue for debt: if sale of mortgaged property does not recover debt, the registered proprietor may be sued to recover difference

Answer 15

Rudge v Richens

Question 16

12 years to sue, years restart if mortgagor acknowledges debt

Answer 16

Bradford & Bingley v Rashid

Question 17

Right to possession: can be done at any time

Answer 17

Rapaigealach v Barclays Bank

Question 18

Right to possession can be restricted by contract

Answer 18

Ashley Guarantee v Zacaria

Question 19

Right to possession without court order can fall foul of criminal law

Answer 19

Criminal law Act 1977 or Protection from Eviction Act 1977

Question 20

Third party rights protected under s. 29 LRA and Schedule 3 may limit right to possession if have priority

Answer 20

Williams & Glyn’s Bank v Boland

Question 21

Mortgagee might limit or lose right through their own fault

Answer 21

Barclays Bank v O’Brien

Question 22

Court may refuse to grant possession if it sought to reasons unconnected to payment of debt

Answer 22

Quennel v Maltby (Court of Appeal - controversial); but can be proper purpose per Meretz Investments v ACP

Question 23

If dwelling house, act of repossession can be delayed at discretion of court if mortgagor likely to pay in reasonable time

Answer 23

s. 36 Administration of Justice Act 1970 (as amended by s. 8 AJA 1973)

Question 24

For delay of possession by court: (1) land must be dwelling house, as determined by state of premises when possession is sought, (2) sums must be due under mortgage, (3) mortgagor must be likely to pay in reasonable time (length of the mortgage); (4) can only be done if possession requested by court (otherwise no discretion); (5) request for delay not available to non mortgagee

Answer 24

(1) RBS v Miller
(3) Cheltenham and Gloucester BS v Norgan
(4) Ropaigealach v Barclays Bank
(5) Horsham Properties v Beech & Clark

Question 25

Sale of land can be requested under s. 91 LPA 1925 by anyone with interest in property, defeating lender's right to possession.

Answer 25

Palk v Mortgage Services (but unclear how this fits with court's power to postpone possession if any sums due can be paid off Cheltenham & Gloucester BS v Krausz

Question 26

Mortgagee cannot gain possession of land mortgaged jointly when mortgagee only binds one person

Answer 26

Albany Home Loans Ltd v Massey

Question 27

Mortgagee in possession is liable for any profits made from the land to mortgagor

Answer 27

White v City of London Brewery

Question 28

Power of Sale (in every deed per s. 101(1) LPA 1925.

Answer 28

Twentieth Century Banking v Wilkinson

Question 29

For Power of Sale to arise: (1) mortgage must have become due; (2) conditions under s. 103 LPA are met and (3) s. 104 protects purchaser

Answer 29

1. Twentienth Century Banking v Wilkinson; Payne v Cardiff RDC 2. s. 103 LPA 1925 3. s. 104 LPA 1925

Question 30

Power of Sale: mortgagee had duty to attain reasonable price for the property

Answer 30

Cuckmere Brick v Mutual Finance

Question 31

Power of Sale: Mortgagee has no duty to equitable owners with interest in the house

Answer 31

Parker and Tweedale v Dunbar Bank (No. 1)

Question 32

Right to Appoint Receiver (implied per ss. 101 and 109 LPA in all mortgages.

Answer 32

Horsham Properties v Clark

Question 33

Receiver owes equitable duty to mortgagor to manage property propertly

Answer 33

Medforth v Blake

Question 34

Right to Foreclosure: refused and order of sale made

Answer 34

s. 91 LPA 1925. Only way for mortgagee to take ownership of the property

Question 35

Remedies of Mortgagee must be used for proper purpose

Answer 35

Downsview v First City Corportation

Question 36

Rights of Mortgagor: Equity of Redemption | "No clog or fetter"

Answer 36

Samuel v Jarrah Trading Company

Question 37

Equity of Redemption: postponement of redemption will be void if it renders right to redeem illusory

Answer 37

Kinghtsbridge Estates v Byrne

Question 38

Rights of Mortgagor: strike out of Collateral Advantages | Collateral advantage unconscionable

Answer 38

Cityland & Property v Dabrah

Question 39

Strike out collateral advantages if: agreement is unfair and imposed in morally reprehensible manner

Answer 39

Multiservice Bookbinding v marden

Question 40

Collateral advantages beyond redemption: either: (1) Separate transaction so enforceable after redemption (2) Part of mortgage and not actually collateral (part of mortgagee's security) (3) Neither part of mortgage or independent transactio, thus clog

Answer 40

(1) Kreglinger v New Patagoina Meat and Storage (2) Stanley v Wilde (3) Noakes v Rice

Question 41

Actual undue influence: mortgage struck down if claimant proves undue influence was exerted

Answer 41

Stevens v Leeder

Question 42

Presumed undue influence: if relationship between influencer and mortgage one of trust, presumption shifts to alleged wrongdoer. Does lender have notice of undue influence, if so, have they taken appropriate steps to warn mortgagor?

Answer 42

RBS V Etridge (burden of proof per Davies v AIB)

Question 43

Presumed undue influence: If solicitor gives bad advice, mortgage not affected, unless mortgagee knew or had reason to believe advice was inadequate

Answer 43

National Westminster bank v Breeds

Question 44

Presumed undue influence: Solicitor may be liable to mortgagor for bad advice

Answer 44

Padden v Bevon Ashford

Question 45

Co-ownership: mortgagee may apply for order of sale under this section

Answer 45

s. 14 TOLATA 1996