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Flashcards in Mortgages Deck (32)
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1
Q

How does a mortgage behave, where is this found

A

For freehold, like a 3000 year lease. For leasehold like alease of 1 day less. S87(1) LPA 1925

2
Q

Formalities for creation of a legal mortgage

A

S85 for freehold, S86 for leasehold. Charge by deed expressed by way of legal mortgage PLUS registration S27(2)(f) LRA 2002

3
Q

Creation of an equitable mortgage

A

Specifically enforceable contract to create a mortgage OR mortgage of an equitable interest S53 LPA 1925

4
Q

Rights of the borrower

A

Redemption (normally 6 months). Enforceable under S91 LPA 1925

5
Q

Case that says an option to purchase is a fetter

A

Samuel v Jarrah - effect of the option was to deprive the mortgagor of the right to redeem

6
Q

Where an option to purchase is a seperate transaction to the mortgage, not a glog

A

Reeve v Lisle

7
Q

A case where redemption was not allowed until only 6 weeks prior to trhe end of the term: Clog

A

Fairclough v Swan Brewery

8
Q

A case where mere postponement (by 40 years!) of redemption was acceptable

A

Knightsbridge Estates v Byrne - was at a good rate on interest - they knew what they were doing - no oppressive bargain

9
Q

Case where court struck out a mortgage term for unconscionability (NOT a bad bargain)

A

Cirtland Property v Dabrah (57% interest rate - inexperienced buyer)

10
Q

Case that shows collateral advantage must be truly seperate to the mortgage

A

Biggs v Hoddinot - Lender was a brewery. Borrower had to buy all booze for 5 years even if they redeemed early.

11
Q

Case where it truly was a collateral advantage

A

New Patagonia Meat Co - First refusal on animal skins unrelated

12
Q

Rights of the mortgagelender

A

Proprietary: All rights of a 3000 year lasehold. Contractual: Right to sue for recovery of debt

13
Q

Lender can go into possession “as soon as the ink is dry”

A

Four maids

14
Q

Mortgagee’s right to possession can be limited in the contract

A

Ashley Guarantee v Zaccaria

15
Q

Court has discretion only to briefly postpone possession

A

Birmingham Midshires v Grant

16
Q

Where does it says that if the land contains a dwelling house, the court can postpone, stay, suspend the judgement or postpone possession

A

S36 Administration of Justice Act 1970

17
Q

A case where possession was postponed

A

Cheltenham & Gloucester v Norgan (equity in the house was massaive, no way that they would lose their money. Arrears repayable over remaining life of the mortgage)

18
Q

Self help (repossession) is available to tghe lender

A

Ropaigealach v Barclays (peacable possession taken)

19
Q

Lender can sell the property without possession

A

Horsham Properties v Clarke - rendered the occupiers trespassers

20
Q

Common law requirements for lender to be able to sell

A

Mortgage by deed and legal date of redemption passed (S101 LPA - power to sell)

21
Q

Statutory requirements to sell

A

Common law req’s met PLUS: Three months notice requiring repayment of full sum OR an installment overdue for 2 months OR breach of terms (S103 LPA)

22
Q

Lender can give good title in the land

A

S104 LPA 1925

23
Q

Duties of the lender when selling

A

Not to sell to self, act in good faith

24
Q

Mortgatgee’s duty to act in good faith is “not a duty of care but a sui generis equitable duty arising from the relationship”

A

Parker-Tweedale v Dunbar Bank

25
Q

The mortgagee must obtain the best price REASONABLY obtainable, not best price - no need to go out of its way

A

Cuckmere Brick Co

26
Q

Case where mortgagee sold in bad faith

A

Tse Kwong Lam

27
Q

Once a case is befoire them for ANY reason, the court can order sale on terms it sees fit

A

S91(2) LPA 1925

28
Q

Case where court ordered sale so borrower coudl manage his debt (against wishes of lender)

A

Palk v Mortgage Services Funding

29
Q

Case that says when a lender is put on notice of undue influence

A

Barclays Bank v O’Brien - Where bank knows of a cohabitee and the transaction is not to their advantage

30
Q

Case which shows how a bank can discharge their duty of care to a potential victim of undue influence

A

RBS v Etridge - basically make sure they know what they’re committing to

31
Q

Case which says acquisition mortgages have special status

A

Abbey National v Cann

32
Q

No need to hold off for the market to recover

A

China & South Sea Bank