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Mortgage - Essay Example

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a) A mortgagee has an immediate right to possession (Four -Maids ltd v Dudley Marshall (properties) ltd1. This right may have been excluded until the mortgagor was in default, but the borrower is in arrears with his payments it is almost certain to apply. The lender Has such a right because he either has a legal term of years in the property under S .85(1) or s…
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Download file to see previous pages If the lender brings a court action for possession of property, which consists of or includes a dwelling house, the mortgagor could obtain longer to repay by asking the Court to delay possession. The court has both an inherent and a statutory jurisdiction to delay possession. Using its inherent jurisdiction. In Birmingham permanent building society v Caunt the court grant a 28 days short delay to enable the Borrower to repay in full the sums owing.
In Abbey National Building Society v Cann2 An aunt acquired rights in property owned by her nephew, through her rights under the 'right to buy' legislation. She was on holiday on the actual date of moving. However, her belongings were moved by removal men. The actual move started some 35 minutes before completion and some of her furniture was moved into the premises. The court decided that this was insufficient for her to claim that she was in actual occupation.
In Lloyds Bank v Rosset3 a husband and wife, recently married, decided to purchase a semi-derelict property. They could not move in until a certain amount of renovation work had been done and much of it was supervised the wife. The work was still in progress after the transfer but the issue was whether the wife could be in actual occupation when she was not in permanent occupation. She had spent a considerable amount of time at the property but could not be said to be in permanent occupation. The builders were working at the premises permanently. Although the court accepted that it was not necessary for the wife to be living there, it drew a distinction between intending to move in and actually living in the premises. The builders were held not to be in actual occupation on behalf of Mrs. Rosset.

In Chhokar v Chhokar4 a married couple split up. The wife remained in the property but had to leave when she had to go to hospital to have a baby. It was held that this did not constitute a break in actual occupation. The case suggests that brief absences will not interfere with actual occupation of land.

So in order to get right of possession in case of actual occupation must be proved.

b) The mortgagee has a right to sell the property without; a court order once the Conditions in SS. 101 and 103 Law of property Act 1925 are fulfilled. Discuss the Sections briefly and co-relate with the given set of facts.

For a long time, it has been established that the mortgagee need not wait until the Market is favorable before exercising the power of sale (Warner Vs Jacob). Indeed, Provided the power to sale is exercisable, the mortgagee cold sell the property at the least advantageous time for the mortgagor (Duke v Robson). In the aftermath of Cuckmere, it was thought to be arguable, that it might be the case that the mortgage should exercise reasonable care as to when the property is out onto the market. This Argument was rejected, however, in China and south sea bank Ltd Vs Tan soon Gin, Where the privy council held that a mortgagee could not be liable for failing to Exercise its power of sale when market conditions were ore favorable than they Subsequently became, as the timing of the sale was a matter entirely for the Mortgagee. This has recently been confirmed in Silven properties Ltd Vs Royal Bank of ...Download file to see next pagesRead More
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