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Land Law > Mortgages > Flashcards

Mortgages Flashcards

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1
Q

Santley v Wilde

A

a conveyance of land as security for the payment of a debt or the discharge of some other obligation

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2
Q

s1(2)(C) LPA 1925

A

a mortgage is capable of being a legal interest

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3
Q

s52(1) LPA 1925

A

to be legal, it must be created by deed

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4
Q

s1 LP(MP)(A) 1989

A

the requirements for a valid deed - it must be headed ‘deed’, it must be signed by the grantor, attested by a capable witness, and delivered (dated)

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5
Q

s27(2)(f) LRA 2002

A

Registered -the mortgage must be substantively registered as it is on the list of registrable dispositions

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6
Q

s4(1)(g) LRA 2002

A

Unregistered - mortgage triggers compulsory first registration if not protected by holding title deeds

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7
Q

s2(4)(i) LCA 1972

A

Unregistered land - where protected by title deeds can be registered as Class C(i) charge

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8
Q

s2(4)(iii) LCA 1972

A

or C(iii) land charge

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9
Q

Legal mortgage

A

binds the world once it has been registered

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10
Q

Equitable mortgage

A

s32 LRA 2002 Notice must be entered on the charges register of the freehold, which will make it binding on any purchaser - s29(2) LRA. If no Notice, void against a purchaser for value - s29(1) LRA 2002

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11
Q

Options to purchase

A

will prevent the M’OR’s equitable right to redeem. If the MEE exercises the option, the M’OR cannot repay the loan and get their land back unencumbered by the mortgage

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12
Q

Samuel v Jarrah

A

options to purchase within the mortgage deed are void. Option granted on the same day as mortgage was void

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13
Q

Reeve v Lisle

A

option in a transaction independent of the mortgage may be valid. Option was granted 12d after mortgage, formed a separate bargain in the eyes of the court

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14
Q

Jones v Morgan

A

if option linked to mortgage, option will be void. Would prevent equitable right to redeem by M’OR

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15
Q

Warmborough v Garmite

A

the court will look at the ‘substance’ of the transaction to ascertain its true nature/determine

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16
Q

Brighton CC v Audus

A

applied Warmborough. Its overall character was not a mortgage

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17
Q

Postponement of legal redemption date

A

the date from which the MO is able to repay the loan and interest in full to discharge the mortgage (equitable right to redeem begins immediately after the legal date expires

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18
Q

Toomes v Consent

A

equity won’t allow a mortgage term that prevents redemptions all together

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19
Q

Knightsbridge Estates v Byrne

A

legal date of redemption pushed back to 40year after start of mortgage term, but upheld: arm’s length business transaction, freely and willingly entered into + MO received a very low interest

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20
Q

Fairclough v Swan Brewery

A

lease had 17.6 years to run and legal redemption was pushed back to 6 weeks before the lease was due to expire - struck down - the MO would not get back substantially the same property - a lease with 17years to run

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21
Q

Collateral advantage

A

residential = unlikely to uphold, commercial = uphold the collateral tie

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22
Q

Biggs v Hoddinott

A

collateral tie which isn’t unscoscnionable or repugnant to right to redeem and doesn’t last longer than the duration of the mortgage. The court said no = the business entered with eyes open

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23
Q

Noakes v Rice

A

collateral tie not usually allowed to go beyond duration of mortgage.

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24
Q

Kreglinger v New Patagonia

A

If the collateral tie goes beyond the duration of mortgage, must be genuinely independent of the mortgage transaction

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25
Q

Esso Petroluem v Harper’s

A

must also not be in restraint of trade

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26
Q

Holles v Wyse

A

court has the power to strike down an unconscionable or penal interest rate

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27
Q

Cityland v Dabrah

A

No legal advice, vulnerable, trusting naive. Lender - bargaining position, rate was 19% pa + 57% total amount of the loan. Effective 38% when the borrower went into default. Was changed = the court changed the 19% rate with 7%

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28
Q

Multiservice Bookbinding v Marden

A

Rate 2% above the bank rate, loan couldn’t be deemed for 10years BUT it was beneficial - it was okay

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29
Q

Falco Finance v Gough

A

late payment by 1 day increased rate by 5% to 14% for the entire term - STROKE OUT

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30
Q

Davies v Directloans

A

rate of 21.6% when market rate was 17% was justified as MO had poor credit history and ME was taking risk. 4.6% above market rate was not improper

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31
Q

Paragon Finance v Nash

A

rate of 2-4% above market area was justified as ME itself was suffering financial difficulties + had a higher cost of borrowing on the international money markets

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32
Q

s62 Consumers Act 2015

A

unfair = causing significant imbalance between parties’ rights to consumer’s detriment

33
Q

s67 CRA 2015

A

unfair terms not binding on borrowers, but remainder of agreement still in force

34
Q

William v Boland

A

express consent - of all adult occupiers - must be fully informed and freely given

35
Q

Bristol v Henning

A

can get implied consent too - wife’s knowledge

36
Q

Barclays v O’brien

A

wife signed without reading, not advised to get ind. legal advice, didn’t have doc. explained to her

37
Q

RBS v Entridge No2

A

Nature of docs -and practical consequences explained. Seriousness of risks, terms of loans, that they have a choice.

38
Q

Avon Finance v Bridger

A

mortgage set aside bc. misled parents into believing they were signing docs for original mortgage not a new one

39
Q

Kingsnorth Trust v Bell

A

second mortgage set aside - husband falsely told wife that it was for a short-term

40
Q

Hewett v First Plus

A

husband’s failure to disclose affair to wife could be undue influence. Has breached the duty of fairness and honesty to her while persuading her to agree to re-mortgage, wife had agreed to mortgage to save home and maintain relationship

41
Q

Bank of Scotland v Bennet

A

lender only put on inquiry if, there was a substantial risk that consent was obtained improperly

42
Q

Barclays v Boulter

A

C could easily discharge burden by showing that the lender knew she was a wife and the transaction wasn’t on its face for her financial benefit. Burden shifts to lender to show reasonable steps.

43
Q

Abbey National v Stringer

A

M’OR was an elderly lady who didn’t read and spoke little English, trusted her son, signed a mortgage for her son’s business, as loan wasn’t for her benefit, transaction was not explained to her - mortgage was set rise and unenforceable

44
Q

CIBC v Pitt

A

Husband borrowed to speculate on stocks, had wife’s knowledge but not approval, but loan was stated to be for joint holiday home, was for joint benefit

45
Q

Thompson v Foy

A

lender not put on enquiry, mum gifted house to daughter which D mortgage, but used to fund mum’s new lief in Spain

46
Q

Coldunell v Gallon

A

mortgage not set aside, lender wrote directly to borrower’s elderly parent , son intercepted letter and got signature away

47
Q

RBS v Etridge

A

solicitor is not lender’s agent, solicitor is responsible for own advice, lender entitled to assume solicitor has done job properly, solicitor can act for both owners - confirmed in Bank of Baroda v Rayerel

48
Q

Equity and Law Homes v Prestidge

A

if wife consents to first mortgage but not to subsequent ones for larger sums, wife only bound to extent of sum in first mortgage

49
Q

Castle Phillips v Piddington

A

Prestidge rule confined to where both mortgages for the same purpose

50
Q

s95(4) LPA 1925

A

ME has right to possess immediately ‘before the ink is dry on the mortgage deed’ - Four Maids v Dudley Marshall

51
Q

s6 of the Criminal Law Act 1977

A

makes a criminal offence to use or threaten violence to gain entry to premises, making self-help risky for the lender

52
Q

s36 AJA 1970

A

court can postpone possession if borrower applies for postponement of possession, applicable to residential or part-residential property ONLY (‘which consits of or includes a dwelling house’). If it seems likely that the borrower will be able to pay all sums due with a ‘reasonable period’

53
Q

s8 AJA 1973

A

defines ‘sums due’ = the arrears

54
Q

C&G v Norgan

A

‘reasonable period’ = outstanding term of the mortgage

55
Q

White v City of London

A

M’EE in possession must manage property to full potential and pay profit to M’OR (doctrine of waste)

56
Q

N&P Lloyds

A

borrower wanting postponement should present a detailed financial plan to show that the loan and any arrears will be paid off before the mortgage term expires

57
Q

Target Home v Clothier

A

borrower might be given chance to sell house himself

58
Q

Mortgage Service v Steele

A

for borrower to be allowed to sell himself and postpone possession, need proof that a particular sale is about to be completed (i.e. evidence of actual/imminent exchange of contracts)

59
Q

B&W v Ellis

A

postponement less likely if falling property values, negative equity, or borrower trying to delay a sale deliberately

60
Q

Birmingham Citizens v Caunt

A

court can postpone possession for all types of property (not just residential) where reasonable prospect of payment is shown, but normally only up to 28 days

61
Q

s101 LPA

A

power to sell arises impliedly under when the mortgage is made by deed and when the mortgage money has become due (one month after date of mortgage OR when one instalment is due)

62
Q

Payne v Cardiff

A

if mortgage is repayable in instalments, the power arises as soon as one instalment is due

63
Q

Horsham v Clark

A

s101LPA is not incompatible with Art 1 ECHR

64
Q

s103 LPA

A

power becomes exercisable in any one of 3 situations: 1) MEE has served notice to M’OR to repay the capital, and 3 months have passed since then notice without the borrower paying 2) interest is in arrear and unpaid for at least 2 months 3) breach of another mortgage term

65
Q

s104 LPA

A

sale to innocent purchaser after s101 but before s103 is still valid, borrower’s remedy is to claim damages from lender for selling too early

66
Q

Cuckmere v Mutual Finance

A

to obtain a proper price or true market value. Lender failed to mention 1/2 planning permissions - reduced price paid, lender liable for difference

67
Q

Newport Farm v Damesh

A

duty to sell at best price depends on circ. which have to be looked at in the round, perfection not required, sale price can be broadly within the right bracket

68
Q

Michael v Miller

A

lender was reasonable to accept £1.625M for land valued between £1.6-1.9M

69
Q

Tse Kwong Lam v Wong Chit Sen

A

lender should get expert advice on method of sale, marketing, reserve price, onus on lender to show this has been done

70
Q

Bishop v Blake

A

breach of duty to obtain proper price, put in minimum effort, colluded with buyer, placed a simple ad with no contact number, sale price was 115k less than potential

71
Q

Silven v RBS

A

lender can sell property as it stands - it has no duty to improve it or increase its value (no duty obtain PP or leases)

72
Q

s105 LPA 1925

A

lender is a trustee of the surplus proceeds of sale, Must give them to the person next in line then to borrower

73
Q

Silven v RBS

A

‘unfettered discretion’ to decide when to sell

74
Q

Cuckmere

A

lender can sell whenever he likes, even if higher price could be obtained later

75
Q

Bell v Long

A

lender could sell 4 properties at a discount together even if they’d have got more individually

76
Q

Palk v Mortgage Services

A

court can order earlier sale against lender’s wishes (negative equity, lender wanted to rent and wait - but would have been gambling with borrower’s debt)

77
Q

Barrett v Halifax

A

borrower in negative equity allowed to sell as he was more likely to get a better price than the lender

78
Q

Parker-Tweedale v Dunbar

A

no duty to beneficiaries under a trust of the property where not a legal owner too. Wife was sole legal owner, husband tried to sue for failing to obtain a property price but no duty to him regardless of notice of his interest

Land Law (3 decks)

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