The defendants had purchased their property from the local authority with the support of a loan from the claimants. The defendants fell into arrears but now sought to resist possession on the basis that the claimant, in securitising their portfolio of mortgages, had lost the right to possession. The assignments had been left uncompleted.
Held: The legal title remained vested in the claimants subject to the equitable rights of the assignee. The position for registered land and unregistered land was different. For registered land the rights of the transferor were unaffected until the assignment was registered. The right to make a possession claim had not been affected. ‘One incident of its legal ownership – and an essential one at that – is the right to possession of the mortgaged property.’
Citations:
[2005] EWCA Civ 760, Times 19-Jul-2005, [2005] 1 WLR 3412
Links:
Statutes:
Lawof Property Act 1925 114, Land Registration Act 1925 33
Jurisdiction:
England and Wales
Citing:
Cited – Paragon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
Cited – Barclays Bank Ltd v Bird 1954
An equitable chargee has an immediate right to possession, subject only to his first obtaining an order for possession from the court: ‘An equitable mortgagee . . has no right to possession until the court gives it to him.’ . .
Cited – City of London Building Society v Flegg And Another HL 14-May-1987
A couple bought a property and registered it in their own names with substantial financial assistance from the parents of one of them. The parents occupied the house with them. Without telling the parents, the owners borrowed again, executing . .
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 – Abu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) CA 1993
Where parties enter into a contract which confers a discretion on one of them, the discretion must be exercised honestly and in good faith, and not ‘arbitrarily, capriciously or unreasonably’. The owner had acted unreasonably in that there was no . .
Cited – Whiteley v Delaney HL 1914
A farm in Yorkshire had been charged by O first to A and then to the plaintiff, and the charges registered under the Yorkshire Registry Acts. An attempt was made to sell of part of the land by o to his daughter to repay some of the money. She . .
Cited – Broadwick Financial Services Limited v Spencer, Spencer CA 30-Jan-2002
The respondents appealed an order for possession under a legal charge which they argued was an extortionate credit bargain, and had been improperly executed and was unenforceable. The appellants were ‘non-status borrowers’.
Held: A concession . .
Lists of cited by and citing cases may be incomplete.
Land, Registered Land
Updated: 22 November 2022; Ref: scu.227926
