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Mortgages - Coggle Diagram

- - - - but if using to generate income = duty to manage properly
        
        White v City of London Brewery Company
      - mostly just sell
        
        easier if u have possession
      - lender need court order for possession for risk of criminal: s 6 of criminal law act 1977
    - - mortgagee take certain steps before escalating
      - e.g. working out new payment plans, extend terms
      - BUT non compliance ≠ cannot possess
    - - must be bone fide: Quennell v Maltby
    - - inherent jurisdiction to postpone possession, but narrow
        
        Birmingham Citizens Permanent BS v Caunt: get like a month
      - expanded under AJA 1970 s 36
        
        require proceeding to be started by lender
        
        if lender go for sell then court cant help
        
        Ropaigealach v Barclays: directly possess
        
        Horsham properties: straight to sale
        
        cannot rly stop possession permanently
        
        court can impose condition on borrower under s 36(3) of AJA 1970
        
        how you manage money, etc
        
        about protecting dwelling house: in s 39 of AJA
        
        NOT CLEAR abt how long is reasonable
        
        mostly 1-2 yrs
        
        consider the length of mortgage, is borrower having temporary problem
        
        Cheltenham v Norgan: postponement allowed
        
        in practice shorter period than intended (Whitehouse)
        
        ppl dont know whats the court's discretion, confused
        
        IF house worth less than loan, NO postponement: Cheltenham v Krausz
      - postponement of possession and s 8 AJA 1873
        
        if theres "acceleration clause" - if you miss, need pay entire debt immediately
        
        for the purpose of AJA 1970 s 36 can be treated as no such provision
    - - art 8 and Art 1 P1
      - no actual impact
  - - - if equitable mortgage (signed writing), power of sale NOT part of it
      - power of sell only arise when by deed
    - - arise when 1) mortgage by deed + 2) money due under mortgage
      - exercisable: LPA 1925 s 103
        
        CANNOT exercise UNLESS 1) default 3 month, 2) interest arrear for 2 month, 3) breach other terms
        
        dont need court order (unlike possession)
        
        if sell before exercisable = selling their own interest (mortgage security)
        
        LPA 1925 s 104
    - - borrower might wanna sell: in situation of "negative equity'
      - LPA 1925 s 91
      - Palk: house worth less than debt, lender wanna rent out, borrower will get worse situation (incur short fall)
        
        the court has high discretion here
      - use LPA s 91 --> solo borrower try to sell (only one legal title holder, no other eq. interest
      - use TLATA s 14 if co-ownership
      - after sell = borrower's interest overreached, may not get proceeds (whether money left from paying lender first)
        
        but if you have any overriding interest that took priority over mortgage then will still bind
        
        borrower still has interest in property during sale (estate in land, lender only has charge)
    - - Cuckmere Brick v Mutual finance
        
        1) duty to act in god faith in conducting sale
        
        2) duty to take reasonable care in conduct of sale
        
        not tort
        
        3) duty to obtain fair and proper price
        
        cannot sell to itself or their agent
        
        not necessarily the highest price
        
        Meah v GE Money Home Finance
        
        FSMA 2000: obtain best price reasonably be paid
        
        marketing material not complete, land sold cheap
        
        lender compensate borrower difference in value
    - - Tse Kwong Lam: sale to associated person may be acceptable
      - e.g. if bank held share in another company, company bought land, thats fine
      - lender need to provide proof that sale is fair
    - - court order sale aside: Tse Kwong Lam
      - mortgagee account for difference in price: Silven Properties v Royal bank of scotland
      - power to appoint receiver: s 101 LPA, can order sell
        
        like a agent, but purpose is to ensure borrower pay debt
        
        NOT oblige to bring positive value to land, job is to get the debt repaid
- - - - etridge protocol
      - 1) has wife proved what is necessary for the court to satisfied that the transaction was affected by UI of husband?
      - 2) was the lender put on inquiry?
      - 3) did lender take reasonable steps to satisfy no UI?
      - actual undue influence
        
        evidence for illegitimate pressure, psychological/physical threat
        
        cannot just change ur mind
      - presumed undue influence: relationship of trust and confidence
        
        suspicion cuz of the nature of party
        
        1) relationship b/ C and the person "reposed trust and confidence in each other"
        
        presume: e.g. parent child, trustee Bene, solicitor client
        
        other cases: show factual evidence
        
        2) transaction not readily explicable by relationship
        
        circumstances in which it is entered into
        
        does not require manifest disadvantage
        
        Turkey v Awadh: father help pay house, daughter dont want to grant him lease, argue UI
        
        CA; readily explicable, the lease is security for his interest
    - - validity of mortgage affected if lender "put on notice"
      - notice? any case where one party provides security for the debts of another / relationship b/ surety and debter non-commercial
    - - lender should make sure the person at risk has received independent legal advice
      - written confirmation from solicitor
        
        solicitor will be liable in negligence but lender not affected
      - criticisms
        
        best practices = separate interview/lawyer
        
        costly, time consuming
        
        --> box ticking exercise
        
        becomes hard to prove UI
    - - house prob still got sold
      - if A UI B, JT severed, TiC
        
        equitable mortgage over A's share, NOT B
        
        property sold, B obtain some proceeds, A's share go to mortgagee
      - mortgagee loan money based on 100% but now only half
        
        mortgagee seek TLATA cuz theres co-ownership
        
        or insolvency act
- - - - doesnt rly affect lender title, just tell them what to do
- - - - bad company can't grant interest when they only have equitable interest
      - cant rent out rights u dont have