Mortgages

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  • Created by: Edward
  • Created on: 29-02-16 11:40
First National Bank v Thompson (1996)
The mortgages of a beneficial interest under a trust of land is thus an equitable mortgage
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Dutton v Davies (2006)
The agreement was in SUBSTANCE a mortgage transaction
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Jones v Morgan (2001)
An option to purchase contained in a ortgage deed is void even if it relates t part only of the mortgaged land
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Samuel v Jarrah Timber (1904)
An option to purchase contradicts the equitable right to redeem
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Reeve v Lisel (1902)
If an option to purchase is granted by the borrower in a separate and independent transaction, it can be upheld
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Fairclough v Swan Brewery (1912)
A provision postponing the date of redemption may be valid provided that it does not make the equitable right to redeem void
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Knightsbridge Estates v Byrne (1939)
Clause postponing redemption of mortgage re freehold estate for 40 years was valid – sig that parties were large commercial enterprises that had entered into mutually enforceable agreement after being professionally advised
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Bradley v Carritt (1903)
General rule= any collateral adv must cease when the mortgage is redeemed
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Kreglinger v New Patagonia Meat (1914)
HL upheld mortgage term preventing mortgagor from selling to anyone other than mortgagee for 5 yr period – although the mortgage was paid off in 3 years, the collateral adv was viewed as a distinct and ind agreement and thus was capable of continuing
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Noakes v Rice (1902)
Collateral adv was void because it was oppressive as it was to continue after redemption of the mortgage
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Biggs v Hoddinott (1898)
Collateral adv was upheld as it was reasonable and fair
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Cityland Holdings v Dabrah (1968)
A provn which entailed that the int rate was to rise to 57% on any default in repayment was regarded as an unconscionable collateral adv and held to be void
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Esso Petroleum v Harper’s Garage (1968)
Agreement which tied borrower to selling only products of lender (a solus agreement) for period of 21 years was invalid (long period) – whereas tie in period for 5yrs was upheld
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Ropaigealach (1999)
A court order for possn is not ne if the premises are unoccupied or the borrower has left willingly
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RBS v Miller (2001)
The time for determining whether there is a dwelling house on the landis when possn is sought and not the time the mortgage was granted
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Four Maids v Dudley Marshall (1957)
Mortgagor’s right to take possn arises automatically at common law and is exercisable even if the mortgagor is not in default
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Bristol & West v Bartlett (2003)
Rights and remedies of the mortgage lender are in general cumulative – e.g. if sale realises less than the mortgage debt, then the mortgagee may sue on the personal covt
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White v City of London Brewery (1889)
If the mortgagee leases the prop, the lender must get the best possible rent
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State Bank of New South Wales v Harrison (200)
If there is no likelihood that mortgagor will be able to pay any sums due in reasonable time, then there is NO jurisdiction to stay the execution of a warrant for possn
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Norgan (1996)
Lender’s position was secure thus court was generous; guidleines re s 36: reasonable time = remaining years on mortgage; borrower burden to convince court that they can repay arrears and meet future payments; no 2nd chance
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Realkredit v Brookfield (2000)
Norgan did not apply here as the lender’s interests were in real jeopardy
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Ropaigealach (1999)
Mortgagor does not have power to sell under s 101 if excluded in the mortgage deed – although this is rare
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Swift 1st v Collin (2011)
An equitable mortgage made by deed falls within scope of s 101
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Michael v Miller (2004)
Reasonably obtained price means ‘proper price’ and ‘the true market value of the mortgaged’
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Cuckmere Brick v Mutual Finance (1971)
The lender’s oblign is to obtain the best price reasonably obtainable for the property in the condition it is when sold
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Nash v Eads (1880)
The lender is not a trustee of the power of sale
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China v Tan (1990)
There is no duty to sell as quickly as possible
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Silven Props v RBS (2003)
The lender need not delay sale until planning permission is obtained or leases granted in order to obtain a better price
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Kennedy v De Trafford (1897)
The lender must act in good faith
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Farrars v Farrars (1888)
The lender cannot sell the prop to itself
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Tse Kwong Lam (1983)
The lender cannot sell to a family member of a business associate
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Palk (1993)
A lender cannot sell it quickly at a knock down price
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Cuckmere Brick (1971)
If the sale is achieved at an undervalue, the court will interfere only when there is fraud, neg or bad faith on lender’s part
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Mercantile Credit (1997)
A borrower can specifically agree to a sale at a lower price, and if so, will be estopped from asserting a claim against the lender
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Tse Kwong Lam (1983)
The mortgagee must make an informed judgment in exercising the power of sale and this will involve the taking of advice from a qualified agent
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Michael v Miller (2004)
In calculating the market value the court will adopt a ‘bracket concept’
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Silven Props v RBS (2004)
The mortgagee need not advertise the prop or attempt to sell it otherwise than by auction
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Downsview v First City (1993)
The mortgagee can choose when to sell and does not have to wait for an increase in prop values before doing so
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Bishop v Blake (2006)
The lender must expose the prop to the market to obtain the best price, which means that there has to be some element of competitive bidding
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Palk (1993)
Court is reluctant to order foreclosure, and wil almost inevitably grant sale instead
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Twentieth Century Banking (1977)
Judidical sale may be used by the court as alt to foreclosure
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Polonski v Lloyds Bank (1993)
In exercising its discretion to order a sale, the court is NOT limited to considering financial matters, but can also take into account social considerations, e.g. reasons why the borrower seeks to sell
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Toor v State Bank of India (2010)
Court will not exercise sale where to do so would cause manifest unfairness to the lender
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Sliven Props v RBS (2003)
The mortgagor does NOT appoint the receiver, cannot give him instructinos and cannot sack him
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Medforth v Blake (199)
Where a receiver manages prop, his duty to the mortgagor and anyone else interested in the equity of redemption was NOT necessarily confined to a duty of good faith
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Wilkinson v west Bromwich (2004)
Re right to sue on personal cov’t to pay, the limitation period begins to run from date of the lender’s initial written demand for the arrears
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Ashley Guarantee v Zacaria (1993)
The equitable mortgagee has NO right at law to possn because he holds NO legal estate
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Other cards in this set

Card 2

Front

The agreement was in SUBSTANCE a mortgage transaction

Back

Dutton v Davies (2006)

Card 3

Front

An option to purchase contained in a ortgage deed is void even if it relates t part only of the mortgaged land

Back

Preview of the back of card 3

Card 4

Front

An option to purchase contradicts the equitable right to redeem

Back

Preview of the back of card 4

Card 5

Front

If an option to purchase is granted by the borrower in a separate and independent transaction, it can be upheld

Back

Preview of the back of card 5
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