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Land Law > Mortgages > Flashcards

Mortgages Flashcards

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1
Q

Legal Mortgage: charge by way of legal mortgage

A

s. 23 LRA 2002

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2
Q

Legal Mortgage must be created by deed

A

s. 52(1) LPA 1925

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3
Q

Legal Mortgage must be registered against title of registered proprietor

A

ss. 25 & 27 LRA 2002

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4
Q

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

A

Barclays Bank v Zaroovabli

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5
Q

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.

A
  1. s. 2 LP(MP)A 1989
  2. s. 2 LP(MP)A 1989
  3. Leeds Permanent Building Society v Famini
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6
Q

Equitable mortgage can arise from proprietary estoppel

A

Kinane v Alimany-Conteh

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7
Q

Mortgagee is subject to general rules of priority per

A

s. 28 & 29 LRA 2002

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8
Q

Mortgage can be overridden by an unregistered protected interest per

A

s. 29 LRA 2002 and Schedule 3

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9
Q

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

A

Williams & Glyn’s Bank v Boland

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10
Q

Mortgagor is only empowered to grant tenancies with permission of mortgagee

A

Dudley & District Benefit BS v Emerson

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11
Q

Acquisition Mortgages: no interest can arise before that of mortgagee

A

Scott v Southern Pacific Mortgages

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12
Q

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

A

Credit & Mercantile v Kaymuu

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13
Q

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

A

Alliance and Leicester v Slayford

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14
Q

Right to sue for debt

A

Alliance and Leicester v Slayford

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15
Q

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

A

Rudge v Richens

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16
Q

12 years to sue, years restart if mortgagor acknowledges debt

A

Bradford & Bingley v Rashid

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17
Q

Right to possession: can be done at any time

A

Rapaigealach v Barclays Bank

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18
Q

Right to possession can be restricted by contract

A

Ashley Guarantee v Zacaria

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19
Q

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

A

Criminal law Act 1977 or Protection from Eviction Act 1977

20
Q

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

A

Williams & Glyn’s Bank v Boland

21
Q

Mortgagee might limit or lose right through their own fault

A

Barclays Bank v O’Brien

22
Q

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

A

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

23
Q

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

A

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

24
Q

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

A

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

25
Q

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

A

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

26
Q

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

A

Albany Home Loans Ltd v Massey

27
Q

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

A

White v City of London Brewery

28
Q

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

A

Twentieth Century Banking v Wilkinson

29
Q

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

A
  1. Twentienth Century Banking v Wilkinson; Payne v Cardiff RDC
  2. s. 103 LPA 1925
  3. s. 104 LPA 1925
30
Q

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

A

Cuckmere Brick v Mutual Finance

31
Q

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

A

Parker and Tweedale v Dunbar Bank (No. 1)

32
Q

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

A

Horsham Properties v Clark

33
Q

Receiver owes equitable duty to mortgagor to manage property propertly

A

Medforth v Blake

34
Q

Right to Foreclosure: refused and order of sale made

A

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

35
Q

Remedies of Mortgagee must be used for proper purpose

A

Downsview v First City Corportation

36
Q

Rights of Mortgagor: Equity of Redemption

“No clog or fetter”

A

Samuel v Jarrah Trading Company

37
Q

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

A

Kinghtsbridge Estates v Byrne

38
Q

Rights of Mortgagor: strike out of Collateral Advantages

Collateral advantage unconscionable

A

Cityland & Property v Dabrah

39
Q

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

A

Multiservice Bookbinding v marden

40
Q

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

A

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

41
Q

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

A

Stevens v Leeder

42
Q

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?

A

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

43
Q

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

A

National Westminster bank v Breeds

44
Q

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

A

Padden v Bevon Ashford

45
Q

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

A

s. 14 TOLATA 1996

Land Law (7 decks)

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