Property was transferred into a divorcing husband’s name, and his new partner signed a form disclaiming any rights as against the lender. After possession proceedings, she later asserted that her consent had been obtained by the undue influence of her partner and that her equitable interest was an overriding one. The applicant applied to amend the pleadings to add to the claim for possession a claim against the original chargor for the debt secured.
Held: This was not an abuse of process even though the result might be that the partner’s insolvency came to defeat the new partner’s equitable interest. It was not an abuse of process, where a lender seeking to take possession of a mortgaged property was faced with an assertion of an interest by a resident spouse, for that lender to seek as an alternative, the bankruptcy of the borrower under the loan agreement itself. Such an action was clearly available to them. An occupier in such circumstances could now taking advantage of the more detailed exposition of rights contained in the Act which would be an appropriate way of establishing the protection to be given.
Gazette 26-Oct-2000, Times 19-Dec-2000,  EWCA Civ 257
Trusts of Land and Appointment of Trustees Act 1996
England and Wales
Updated: 16 December 2020; Ref: scu.77751