A mortgagee may under common law go into possession before the ink is dry on the mortgage unless there is something in the contract, express or by implication, whereby he has contracted himself out of that right. He has the right because he has a legal term of years in the property or its statutory equivalent. It is a common law right which is preserved (but not created) by section 95(4).
Judges:
Harman J
Citations:
[1957] 1 Ch 317
Statutes:
Law of Property Act 1925 95(4)
Cited by:
Cited – Owen v Cornell 1967
The mere fact of a sub-mortgage did not prevent the principal mortgagee from exercising his rights under the principal mortgage. ‘The fact was that the legal estate in the term of 3,000 years still remained in the head mortgagee, notwithstanding . .
Cited – Credit and Mercantile Plc v Feliciangela Marks CA 14-May-2004
The defendant had charged her home to the claimant and fallen into arrears. There was a sub-charge executed on the same day in favour of the Bank of Scotland (BOS) under which the claimant agreed to repay to BOS the amount it owed to them.
Cited – National Westminster Bank Plc v Ashe (Trustee In Bankruptcy of Djabar Babai) CA 8-Feb-2008
The mortgagees had made no payments under the charge for more than twelve years, and had remained in possession throughout. They argued that the bank were prevented from now seeking to enforce the charge. The bank argued that the possession had not . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 13 May 2022; Ref: scu.197902