s.85(1) LPA 1925 - 'charge by way of deed' and registered (s.27 LRA 2002)
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How to create an 'equitable' mortgage
Where the formalities for creating a legal mortgage are not fulfilled - instead made by written contract (s.53 LPA 1925) - in writing and signed (s.2 LP(MP)A 1989)
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Priority of a registered mortgage
Takes priority based on the order in which it was entered on the charges register
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Priority of an unregistered mortgage
Takes priority dependent upon the date it which it was created
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When can a mortgagee take possession?
'As soon as the ink is dry' on the mortgage agreement: Four Maids v Dudley Marshall
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What qualifies the right to possession of a mortgagee?
Doctrine in Quenelle v Maltby AND s.36 AJA 1970 (as amended by s.8 AJA 1973)
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Doctrine in Quenelle v Maltby
The mortgagee must take possession in 'good faith'
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S.36 Administration of Justice Act 1970 (as amended by s.8 AJA 1973)
Mortgagor can apply to the court for an order to postpone or prevent possession by the mortgagee where it is of a 'dwelling house' and the court believe the mortgage can be paid off in a 'reasonable period'
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'Reasonable period'
Presumed to be the end of the mortgage term: Cheltenham v Norgan
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When can a court act under s.36 AJA 1970
The court only has jurisdiction under s.36 to postpone/ prevent possession when the mortgagee has applied for an order for possession - not where they have taken possession peacefully: Ropaigeach v Barclays Bank
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Right to sell
Arises where conditions in s.101(1) LPA 1925 are met (executed by deed, legal date of redemption has passed), only exercisable where s.103 LPA 1925 is met (3 months in arrears, or 2 months in interest arrears, or breach of another term of mortgage)
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Right to appoint a receiver
Mortgagee can appoint a receiver, who is in charge of collecting the money from the security, when the conditions in s.101(1) LPA 1925 are met
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Other cards in this set
Card 2
Front
How to create an 'equitable' mortgage
Back
Where the formalities for creating a legal mortgage are not fulfilled - instead made by written contract (s.53 LPA 1925) - in writing and signed (s.2 LP(MP)A 1989)
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