Abbey National plc v Moss and Others: CA 1994

Mrs Moss inherited the former matrimonial home. Her daughter (L) suggested that she transfer it into their joint names to ease its transfer on her mother’s death. It was agreed the house would never be sold during Mrs Moss’s lifetime. L borrowed andpound;30,000 using the house as security and forged her mother’s signature on the charge. Mrs Moss did not know of the mortgage. They fell out and L left and ceased to make payments. The chargee sought to recover the arrears, possession of the property and also made an application for an order for sale under s. 30. The judge ordered sale.
Held: (by Majority) The position created by the transfer into joint names subject to the agreement that the property was not to be sold in the mother’s lifetime was that the trust for sale thereby created could not be implemented without the mother’s consent. The assignee of a donee could not acquire a better right than the donee had, but took his interest subject to all the equities effecting the interest of the donee. In proceedings apart from s 30, the court would not allow the trustees for sale to ignore the requirement of consent, and although in proceedings under s. 30 the court had a wide discretion to override the refusal of trustees for sale to sell on the application of any person interested, the trust for sale would not be enforced so long as there was a collateral purpose still subsisting requiring the retention of the property. The judge had been wrong to hold that the collateral purpose of the agreement had come to an end by reason of the daughter losing her beneficial interest through the mortgage, and his an error of law required the Court of Appeal to exercise its discretion under s. 30 afresh. It did so and refused an order for sale. ‘Again apart from s. 30, I apprehend that an assignee of the donee would be held not to be in any better position than the donee to ignore the requirements of Mrs Moss’s concern to a sale.’ Hirst LJ (dissenting) would have upheld the judge’s decision only being unwilling to interfere with an exercise of a judge’s discretion under s30. S30 gives the court a discretionary power to order sale, even where the respondent to an application’s interest in the property ranks before that of the applicant. The house was registered land and Mrs Moss was in occupation and that therefore s. 70(1)(g) would have applied. Nevertheless neither counsel for Mrs Moss nor the judge nor any member of this court suggested that the building society’s s. 30 application was defeated by the operation of that sub-section
Peter Gibson LJ, Hirst LJ
[1994] 1 FLR 307
Law of Property Act 1925 30, Land Registration Act 1925 70(1)(g)
England and Wales
Cited by:
FollowedBarclays Bank Plc v Hendricks and Another ChD 3-Nov-1995
The wife was co-owner of the family home. Her husband owed money to the bank. He separated from his wife and left the matrimonial home moving to another house owned by the wife. The bank obtained a charging order absolute against the husband’s . .

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Updated: 21 March 2021; Ref: scu.197885