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Flashcards in Property Law Second Term - MORTGAGES Deck (104):
1

What is s.101 LPA regulated by?

S.103 LPA

1

Cukurova Finance v Alfa Telecom

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

2

BoS v Miller

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

3

Palk v Mortgage Services on s.91 order of sale

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

3

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

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

4

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

S.8

4

What Law Com report suggested abolition of foreclosure for land?

No. 204

4

Samuel v Jarrah Timber

Provision in mortgage contract for purchase is void

5

What is the problem with foreclosure?

Contracts basic rule that right is only to secure performance

5

S.98 powers of mortgagor

Claim possession

6

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

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

6

Horsham Properties v Clark

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

6

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

Manchester CC v Pinnock

6

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

Bristol Airport v Powdrill

6

TSB v Camfield

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

7

What does s.51 LRA do?

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

8

Jones v Morgans

'No clogs or fetters' on EoR

9

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

S.85

10

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

S.91 LPA

10

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

Silven Properties v RBS; Cuckmere Brick v Mutual Finance

10

What does the CCA 1974 allow courts to do?

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

11

Wood v UK

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

12

What case shows a limitation of s.36 AJA?

Ropaigealach v Barclays Bank

12

Clough Mill v Martin

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

13

Midland Bank v Kidwai

No liability for undue influence if C ignored advice

14

CLBS v Flegg

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

15

S.91 LPA powers of mortgagor

Redemption, order of sale

17

How can a creditor appoint a receiver?

Express power in agreement or through s.101 LPA

18

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

S.85(1) and s.87

18

What are the powers of a mortgagor?

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

20

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

Downsview Nominees v First City Corp

22

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

Cuckmere Brick v Mutual Finance

24

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

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

25

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

De Freitas v Permanent Secretary

25

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

Cukurova Finance v Alfa Telecom

26

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

S.105

27

Corbett v Halifax BS

S.104 does not include mere undervalue

27

What is the legal maxim which bases all mortgage security?

'Once a mortgage, always a mortgage'

28

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

BoS v Miller

29

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

Silven Properties v RBC

30

'No clogs or fetters' on EoR

Jones v Morgans

31

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

TSB v Camfield; Midland Bank v Kidwai

32

Re North East Property Buyers' Litigation

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

33

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

Swift 1st v Colin

35

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

Downsview Nominees v First City Corp

36

What is an equity of redemption?

Equitable property rights of value of land, less amount owed

37

Ropaigealach v Barclays Bank

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

38

Multiservice Bookbinding v Marden, Lord B-W

'shock the conscience of the court'

39

Kregliner v New Patagonia Meat Co

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

40

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

Bristol Airport v Powdrill

41

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

Corbett v Halifax BS

43

What appears to diminish s.8 AJA somewhat?

'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

Bristol & West BS v Ellis

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

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

S.23 and s.51 LRA

47

What were the two legal mortgages prior to LRA?

Long lease and charge by deed

48

Cuckmere Brick v Mutual Finance

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

50

Quennell v Maltby

Remove tenants; can only seek possession 'bona fide and reasonably'

51

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

Four Maid Ltd v Dudley Marshall

52

What sections of the LPA cover foreclosure?

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

53

What four things protect the equity of redemption?

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

54

Swift 1st v Colin

Power under s.101 with a deed but no registration

55

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

Cheltenham & Gloucester v Booker

57

Palk v Mortgage Services

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

59

Downsview Nominees v First City Corp

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

60

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

Revoke licence

61

Why is foreclosure essentially obsolete?

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

62

What does s.36 AJA allow?

Court to adjourn proceedings or grant a suspended possession order

63

Consumer Credit Act 1974 regulates what?

Some mortgages

64

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

S.101 LPA

66

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

Santley v Wilde

67

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

Kregliner v New Patagonia Meat Co

68

What are mortgage terms subject to?

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

69

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

debtor in negative equity and bank's actions 'unfairly prejudices' them

71

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

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

72

What is an equitable right to redeem?

Right to pay after legal date of redemption

73

Santley v Wilde

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

74

Silven Properties v Royal BoS

No obligation to improve property for sale

75

Machester CC v Pinnock

Personal circumstances increasing effect of eviction may be considered exceptionally

76

Four Maid v Dudley Marshall

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

77

Can't sit on the property

Palk v Mortgage Services

79

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

S.109 LPA

80

Cheltenham & Gloucester v Norgan

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

81

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

Silven Properties v RBC

82

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

S.30 LRA

84

Abbey National v Cann

Unencumbered fee simple

86

Silven Properties v RBC

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

87

Unencumbered fee simple

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

88

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

S.104

89

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

Cheltenham & Gloucester v Norgan

90

No need to improve the property for power of sale

Silven Properties v RBC

91

What section shows mortgagee has a basic right to possession?

s.87 LRA

92

Name three sources of regulation for mortgages

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

93

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

Interpreted in a human rights compatible manner

94

Ree v Lisle

Allow purchase of estate if wholly separate to mortgage

95

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

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

96

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

Retention of title in Clough Mill v Martin

97

S.99 LPA powers of mortgagor

Lease property

98

When does s.36 AJA apply?

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

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

Ropaigealach v Barclays Bank

100

What does the FSMA 2000 regulate?

First legal mortgages secured against individual borrower's home

101

What statute applies to taking possession?

Administration of Justice Act 1970, s.36

102

What is the way mortgages are usually adopted?

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

103

How are proceeds applied after a power of sale?

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

104

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

S.23(1)