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Law First Year > Property Law Second Term - MORTGAGES > Flashcards

Property Law Second Term - MORTGAGES Flashcards

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1
Q

What is s.101 LPA regulated by?

A

S.103 LPA

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1
Q

Cukurova Finance v Alfa Telecom

A

Telephone shares; right is for security, so can’t insist on it even if delayed

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2
Q

BoS v Miller

A

S.36 AJA applies even if the dwelling is not D’s home and only part of the property

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3
Q

Palk v Mortgage Services on s.91 order of sale

A

Maybe even if mortgagee seeks possession and proceeds will not pay off mortgage

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3
Q

What does Law Com No.204 suggest about taking possession?

A

Statute should recognise creditor can only take possession with a court order

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4
Q

Where is the meaning of ‘sums due’ for s.36 AJA?

A

S.8

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4
Q

What Law Com report suggested abolition of foreclosure for land?

A

No. 204

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4
Q

Samuel v Jarrah Timber

A

Provision in mortgage contract for purchase is void

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5
Q

What is the problem with foreclosure?

A

Contracts basic rule that right is only to secure performance

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5
Q

S.98 powers of mortgagor

A

Claim possession

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6
Q

when is the only time a debtor can assert their equity of redemption against the mortgagee?

A

when they sell without power of sale (s.52 LRA only arises under s.101 LPA)

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6
Q

Horsham Properties v Clark

A

Rejected possibility of unjustified interference with property rights through s.87(1) under Art. 1 Protocol 1

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6
Q

What case shows that s.36 may occasionally consider personal circumstances increasing effect of eviction?

A

Manchester CC v Pinnock

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6
Q

In what case did Lord B-W highlight that C obtains rights ‘in order to enforce the discharge of D’s obligations’?

A

Bristol Airport v Powdrill

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6
Q

TSB v Camfield

A

If no proper advice given, despite solicitor’s certificate, mortgagee would be liable

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7
Q

What does s.51 LRA do?

A

Once registered, a mortgage charge takes effect as a charge by deed by way of legal mortgage, regardless of if it was made by payment of money or by deed

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8
Q

Jones v Morgans

A

‘No clogs or fetters’ on EoR

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9
Q

What section of the LPA, before LRA, gave two ways to make a legal mortgage?

A

S.85

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10
Q

What section covers the court’s discretion to order a sale for mortgages?

A

S.91 LPA

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10
Q

What two cases show a bank must take reasonable care to achieve a reasonable price?

A

Silven Properties v RBS; Cuckmere Brick v Mutual Finance

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10
Q

What does the CCA 1974 allow courts to do?

A

grant a time order to extend lender’s enforcement of right to possession and amend/vary mortgage terms

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11
Q

Wood v UK

A

ECtHR accepted s.87(1) is proportionate so no Art.1 or 8

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12
Q

What case shows a limitation of s.36 AJA?

A

Ropaigealach v Barclays Bank

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12
Q

Clough Mill v Martin

A

Retention of title; not a security right as not a new right

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13
Q

Midland Bank v Kidwai

A

No liability for undue influence if C ignored advice

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14
Q

CLBS v Flegg

A

Legal charge for value overreaches if capital sum paid to 2 trustees

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15
Q

S.91 LPA powers of mortgagor

A

Redemption, order of sale

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17
Q

How can a creditor appoint a receiver?

A

Express power in agreement or through s.101 LPA

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18
Q

What section of the LPA allows a mortgage of land to be made by mortgage or long lease?

A

S.85(1) and s.87

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18
Q

What are the powers of a mortgagor?

A

Redemption, lease property, claim possession and apply for an order of sale

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20
Q

What case shows a power of sale and good faith means to discharge the debt?

A

Downsview Nominees v First City Corp

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22
Q

Can act in self-interest for power of sale but need to take obvious steps

A

Cuckmere Brick v Mutual Finance

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24
Q

How did leasehold estate mortgages differ from freehold prior to LRA?

A

Long lease under s.85 LPA would be for 10 days less than borrower’s own lease usually

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25
Q

From what case is the proportionality test that should be applied to s.87(1) LRA by virtue of s.3 HRA?

A

De Freitas v Permanent Secretary

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25
Q

Telephone shares; right is for security, so can’t insist on it even if delayed

A

Cukurova Finance v Alfa Telecom

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26
Q

What section shows the application of proceeds from a sale with a mortgage?

A

S.105

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27
Q

Corbett v Halifax BS

A

S.104 does not include mere undervalue

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27
Q

What is the legal maxim which bases all mortgage security?

A

‘Once a mortgage, always a mortgage’

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28
Q

What case shows s.36 AJA applies even if dwelling is not D’s home and only part of the property?

A

BoS v Miller

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29
Q

What case shows a receiver can act in self-interest even if this conflicts with the mortgagor?

A

Silven Properties v RBC

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30
Q

‘No clogs or fetters’ on EoR

A

Jones v Morgans

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31
Q

What two cases conflict on the appropriate steps for undue influence in regard to independent advice?

A

TSB v Camfield; Midland Bank v Kidwai

32
Q

Re North East Property Buyers’ Litigation

A

Argue right arose before any others when used to purchase a house (s.28 LRA)

33
Q

What case shows powers under s.101 LPA arise even without registration?

A

Swift 1st v Colin

35
Q

Need to exercise power of sale in good faith, i.e. to discharge a debt

A

Downsview Nominees v First City Corp

36
Q

What is an equity of redemption?

A

Equitable property rights of value of land, less amount owed

37
Q

Ropaigealach v Barclays Bank

A

Vacant possession so no court order needed and no s.36

38
Q

Multiservice Bookbinding v Marden, Lord B-W

A

‘shock the conscience of the court’

39
Q

Kregliner v New Patagonia Meat Co

A

May allow advantages to continue past redemption if don’t attach to land

40
Q

What case made it clear that C’s rights are only to discharge D’s obligations in mortgages?

A

Bristol Airport v Powdrill

41
Q

What case shows that knowledge of impropriety under s.104 LPA does not include selling at a mere undervalue?

A

Corbett v Halifax BS

43
Q

What appears to diminish s.8 AJA somewhat?

A

‘Reasonable period’ in s.8(2) appears to show the courts having regard to the whole mortgage and whether D will pay everything owed by the end

43
Q

Bristol & West BS v Ellis

A

If there is only a small gap between what is owed and value of security, possession is likely to be given and application of future sale rejected (under s.36 AJA)

45
Q

How can a charge by way of legal mortgage be registered?

A

S.23 and s.51 LRA

47
Q

What were the two legal mortgages prior to LRA?

A

Long lease and charge by deed

48
Q

Cuckmere Brick v Mutual Finance

A

Can act in self-interest for sale but need to take obvious steps

50
Q

Quennell v Maltby

A

Remove tenants; can only seek possession ‘bona fide and reasonably’

51
Q

What case shows a creditor has a basic right to possession?

A

Four Maid Ltd v Dudley Marshall

52
Q

What sections of the LPA cover foreclosure?

A

S.88(2) and s.89(2) LPA

53
Q

What four things protect the equity of redemption?

A

Rule against irredeemability, mortgagee attempts to purchase are void, unfettered redemption and unconscionable terms/unreasonable interest rates

54
Q

Swift 1st v Colin

A

Power under s.101 with a deed but no registration

55
Q

What case showed that courts will only exceptionally require the creditor to permit the debtor to retain possession?

A

Cheltenham & Gloucester v Booker

57
Q

Palk v Mortgage Services

A

sit on property; bank cannot act at mortgagor’s expenses

59
Q

Downsview Nominees v First City Corp

A

Exercise power of sale in good faith (i.e. to discharge the debt)

60
Q

What happens if FCA sourcebook rules are not followed for mortgages?

A

Revoke licence

61
Q

Why is foreclosure essentially obsolete?

A

Court order needed, and court will usually order sale under s.91 LPA

62
Q

What does s.36 AJA allow?

A

Court to adjourn proceedings or grant a suspended possession order

63
Q

Consumer Credit Act 1974 regulates what?

A

Some mortgages

64
Q

What section gives implied powers into a mortgage made by deed?

A

S.101 LPA

66
Q

Collateral advantages allowed to mortgage is reasonable and not a fetter on redemption

A

Santley v Wilde

67
Q

What case shows collateral advantages may be allowed to continue past redemption if they don’t attach to the land?

A

Kregliner v New Patagonia Meat Co

68
Q

What are mortgage terms subject to?

A

UTCCR: ‘plain and intelligible’, and if not then contra proferentum through Reg.7

69
Q

Why were the court persuaded to grant s.91 LPA in Palk v Mortgage Services?

A

debtor in negative equity and bank’s actions ‘unfairly prejudices’ them

71
Q

What are the acquisition requirements for a charge by way of legal mortgage?

A

S.27(2)(f) LRA and s.52 LPA with s.1 LP(MP)A

72
Q

What is an equitable right to redeem?

A

Right to pay after legal date of redemption

73
Q

Santley v Wilde

A

Collateral advantages allowed to mortgage is reasonable and not a fetter on redemption

74
Q

Silven Properties v Royal BoS

A

No obligation to improve property for sale

75
Q

Machester CC v Pinnock

A

Personal circumstances increasing effect of eviction may be considered exceptionally

76
Q

Four Maid v Dudley Marshall

A

‘Mortgagee may go into possession before the ink is dry’ (Harman J)

77
Q

Can’t sit on the property

A

Palk v Mortgage Services

79
Q

What section shows a receiver is an ‘agent’ of the mortgage?

A

S.109 LPA

80
Q

Cheltenham & Gloucester v Norgan

A

Courts appear to take into account the whole mortgage when deciding ‘reasonable period’ for s.8 AJA

81
Q

Can act in self-interest, even if against those of mortgagor, for receiver

A

Silven Properties v RBC

82
Q

What section of LRA shows a legal charge for value is taken free of any interest not overriding or registered?

A

S.30 LRA

84
Q

Abbey National v Cann

A

Unencumbered fee simple

86
Q

Silven Properties v RBC

A

Self-interest, even if conflicts with mortgagor, for appointment of a receiver

87
Q

Unencumbered fee simple

A

Abbey National v Cann; Re North East Property Buyers’ Litigation

88
Q

What section of LPA protects the purchaser even when creditor has breached equitable duties?

A

S.104

89
Q

In what case did the court require a ‘detailed budget’ for s.36 AJA and s.8?

A

Cheltenham & Gloucester v Norgan

90
Q

No need to improve the property for power of sale

A

Silven Properties v RBC

91
Q

What section shows mortgagee has a basic right to possession?

A

s.87 LRA

92
Q

Name three sources of regulation for mortgages

A

FCA Sourcebook on Mortgage and Home Finance; Financial Services and Market Act 2000; CCA 1974

93
Q

What does s.3 HRA require of s.87(1) LRA basic right to possession?

A

Interpreted in a human rights compatible manner

94
Q

Ree v Lisle

A

Allow purchase of estate if wholly separate to mortgage

95
Q

What two cases show the issue of a ‘scintilla temporis’ in priorities of a mortgage?

A

Abbey National v Cann; Re North East Property Buyers’ Litigation

96
Q

What case shows a ‘type’ of right that does not need to be registered, but still functions as a type of mortgage

A

Retention of title in Clough Mill v Martin

97
Q

S.99 LPA powers of mortgagor

A

Lease property

98
Q

When does s.36 AJA apply?

A

Period to make payments over, dwelling part of the property and even if not D’s home and requires bank to have gone to court

99
Q

What case shows how s.36 AJA may never come to be considered in an order for possession?

A

Ropaigealach v Barclays Bank

100
Q

What does the FSMA 2000 regulate?

A

First legal mortgages secured against individual borrower’s home

101
Q

What statute applies to taking possession?

A

Administration of Justice Act 1970, s.36

102
Q

What is the way mortgages are usually adopted?

A

Charge by way of legal mortgage through s.23 and s.51 LRA

103
Q

How are proceeds applied after a power of sale?

A

To meet sale costs, then to discharge amount owed, then balance remaining is paid to other mortgages/borrower

104
Q

What section of the LRA shows the two ways to make a legal mortgage of registered land?

A

S.23(1)

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