Mortgage Possessions Flashcards
(20 cards)
The mortgage is equitable only
Barclays Bank Ltd v Bird - Equitable mortgagee entitled to possession order
(Seek order vesting term of years under s.90 LPA 1925)
What is a ‘reasonable period’ under s.36 AJA 1970?
C&G BS v Norgan: When calc’g a ‘reasonable period’, the starting point is the remaining term of the mortgage
Section 36 AJA 1970
Power to delay giving M’gee possession if M’gor can repay sums due within a reasonable period
Section 8 AJA 1973
Ignore early repayment provisions when calc’g ‘sums due’
D propose to repay arrears, but has poor payment history
Abbey National v Mewton Court entitled to infer from poor payment record that unlikely to make future payments
D proposes to repay arrears, but this is beyond his means
First National Bank v Syed Court should not exercise its discretion where the required payments are manifestly beyond D’s means
D proposes to sell the property
Mortgage Services Funding PLC v Steele: Property can be sold just as well by Mortgagee
D proposes to sell the property, but is in negative equity
Negative equity: s.36 discretion not available. Cheltenham & Gloucester v Krausz
Tenants app. under MR(PoTe)A 2010 for 2 month postponement
Following conditions must be met:
Land includes a dwelling house
There is an unauthorised tenancy
Tenant has made an app. to extend the period of the PO
D raises HRA defence
Barclays Bank Plc v Ellis A party seeking to rely on HRA should provide the court with any decisions of the ECHR on which he relies. Mere references to the ECHR do not help the court
D raises hard circumstances
Abbey National Mortgages Plc v Bernand Cannot suspend PO, however hard the circumstances, if no prospect of reducing arrears
D did not receive claim form
Akram v Adam If CF was posted to D’s address, this is good service
D asks for postponement pending the outcome of other proceedings
Albany Home Loans Ltd v Massey Court may take view that there is no realistic prospect of discharging arrears, despite D’s pending proceedings (eg for unfair dismissal)
D argues that the Mortgagors are not present
Alliance Building Society v Shave PO may be made against occupier in absence of mortgagors, as this would not prejudice mortgagors in their absence
D is an unauthorised tenant and argues that the Mortgagee must respect his tenancy
Britannia Building Society v Earl Unauthorised tenant becomes a statutory tenant as against the Mortgagor, but not as against the Mortgagee
D proposes to sell property, but proceeds of sale will not discharge the debt
C&G BS v Krausz Where POS will not discharge debt, s.36 does not empower court to suspend warrant of possession
D has a counterclaim against C
Citibank Trust v Ayivor Existence of counterclaim does not affect M’gee’s right to PO
Someone tries to dispute the claim, but they are not actually in possession
Esso Petroleum Co Ltd v Alstonbridge Properties M’gee’s app for PO is simply an app for an order for recovery of land, and not proceedings for enforcing the mortgage. If a person is not actually in possession, they are not parties to the claim: despite the fact that they are entitled to possession.
Judge is minded to refuse to make a concurrent money judgment
Cheltenham & Gloucester Building Society v Grattidge Mortgagee entitled to money judgment. No inconsistency w/ PO
Judge is minded to make a costs order that does not reflect the mortgage provisions
Gomba Holdings (UK) Ltd v Minories Finance Ltd (No. 2) The court’s discretion as to costs should usually be exercised so as to reflect contractual rights.
