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Flashcards in Land - Mortgages Deck (44)
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Farrar v Farrars Ltd

The sale must be a genuine sale. Not to self as another or to an agent

1

Tse Kwong Lam v Wong Chit Sen

A mortgagee can see to an associate but must prove took reasonable precautions to obtain the "best price reasonably obtainable".

2

Mardner

Where a mortgage company sells to a associate company the evidential burden is reversed. Must prove complied with duty to obtain best price.

3

Cuckmere Brick Co

Lender needs to properly ascertain value of property - advertising broadly over time - giving a full description - cannot delegate responsibility to an estate agent

4

Silven Properties Ltd

Developed Cuckmere. A receiver can sell if given express power to do so. Fiduciary relationship. In exercising power of sale, receivers owe same equitable duty to mortgagor as mortgagee did. Sale price must include hope value, potentiality value. Must be brought to attention of prospective buyers. Pending planning permissions in this case

5

What is the basis for liability

- donoghue v stevenson (held in Standard Chartered Bank v Walker) - equity due to relationship between parties (Parker-Tweedale v Dunbar Bank) Debatable

6

China and South Sea Bank v Tan Soon Gin

Lender can choose when to sell but needs to allow proper time for exposure to market,

7

Four Maids

Lender has automatic right to possession as soon as mortgage is made. "before the ink is dry on the mortgage"

8

White

Mortgagee must account for all income he receives or should have received from property (eg tide basis let of brewery)

9

Ropaigealach

If property is vacant, mortgagee can effect peaceable re-entry without an order for possession s36 does not apply

10

Norgan

A "reasonable period" for payment of arrears should be outstandind term of mortgage. court looks for - reasonable budget - value of property exceeds loan and arrears - if further arrears no mercy.

11

Clothier

Can have suspended possession to allow easier sale. Easier to sell if someone living in property

12

Ellis

Adequacy of debt security and length of period necessary to achieve sale of key importance A year likely to be the maximum delay period. Must prove - adequacy of property as security for debt - how long is needed to achieve sale - effect of time on the security (eg accruing arrears)

13

Syed

Any sums due means arrears PLUS current instalment of mortgage.

14

Medforth v Blake

- A receiver managing property owes duty to mortgagor and anyone else with interest in equity of redemption - imposed by equity (good faith) - to try to bring about a situation where debt is repaid and interest on securied debt paid - duty of due diligence.

15

Vernon v Bethell

Lord Henley- lenders likely to be at an advantage, courts redress balance - borrower may be pressed for money - lenders knownthe ropes - preprinted mortgage deeds

16

Palk

Court has jurisdiction to order a sale under s 91(2) LPA Eg Reduce debt caused by negative equity Contrast to Krausz No jurisdiction under s36 AJA to suspend order for possession in negative equity cases so as to enable mortgagor to apply for order of sale under s91 LPA BUT Palk case was distinguished as - lender not taking steps to force sale (mortgagors were) - were exceptional circumstances

17

Dabrah

Residential Court has ability to rewritte oppressive mortgages.

18

Marden

Commercial Court refused to intervene in oppressive mortgage - relative equality between bargaining parties - therefore a bad bargain

19

Britiannia v Earl

-Can obtain possession against tenants who cannot apply under s 36 AJA - Mortgagee not bound by tenancy even if it is protected by statute. (lease will bind mortgagor)

20

Henning

Implied consent to mortgage by family members were move in on that basis or knows bought with mortgage Supported by Cann (moved in after completion - interest not binding on buildi society)

21

Etridge

HoL set out what lenders are expected to do for future transactions (following court sympathy to interest holders in matrimonial homes being coerced into mortgages by their partner in O'Brien) - independent advice...

22
1

The sale must be a genuine sale. Not to self as another or to an agent

Farrar v Farrars Ltd

23
1

A mortgagee can see to an associate but must prove took reasonable precautions to obtain the "best price reasonably obtainable".

Tse Kwong Lam v Wong Chit Sen

24
1

Where a mortgage company sells to a associate company the evidential burden is reversed. Must prove complied with duty to obtain best price.

Mardner

25
1

Lender needs to properly ascertain value of property - advertising broadly over time - giving a full description - cannot delegate responsibility to an estate agent

Cuckmere Brick Co

26
1

Developed Cuckmere. A receiver can sell if given express power to do so. Fiduciary relationship. In exercising power of sale, receivers owe same equitable duty to mortgagor as mortgagee did. Sale price must include hope value, potentiality value. Must be brought to attention of prospective buyers. Pending planning permissions in this case

Silven Properties Ltd

27
1

- donoghue v stevenson (held in Standard Chartered Bank v Walker) - equity due to relationship between parties (Parker-Tweedale v Dunbar Bank) Debatable

What is the basis for liability

28
1

Lender can choose when to sell but needs to allow proper time for exposure to market,

China and South Sea Bank v Tan Soon Gin

29
1

Lender has automatic right to possession as soon as mortgage is made. "before the ink is dry on the mortgage"

Four Maids