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Land Law Lecture Notes on Mortgages
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Land Law Lecture Notes on Mortgages
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Lecture 15 – Mortgages (2/3)POSSESSION AND SALE
Term re-possession is actually misleading: mortgagees never actually have possession of the
property – only on an order for sale that they can get possession. Process of possession and
process of sale. The Mortgagee has a registerable interest/ disposition in the estate being
mortgaged. Protected by LRA 2002.
So, see slide for an example of a registration of charge: available at the land registry – it can
tell the general public where the property is located, who the registered proprietors are,
charges registered by a mortgage lender will also be detailed there. If a property is subject to
a charge, a mortgagee will find this detailed on the office copy as the one on the hand out.
Any subsequent mortgage lenders will know then of the other mortgage. Also note that if
there are multiple lenders, they will only get repaid by order that they granted the loan.
Disputes between mortgagees and mortgagors:
Disputes could arise between mortgagors and mortgagees where, for example, the
circumstances of the original mortgagors have changed and the legal and beneficial
ownership and interests in an estate look different.
One mechanism is under ToLATA: Possession and sale proceedings might potentially be
resisted by mortgagors under the provisions of the Trusts of Land and Appointment of
Trustees Act 1996 (TOLATA 1996).
Section 14 and 14 (1): Any person who is a trustee of land or has an interest in
property subject to a trust of land may make an application to the court for an order
under this section. – e.g. a trust automatically arises on the purchase of a property.
This person could be the mortgagor.
This enables the mortgagor to make an application (for possession) for a court order
relating to the extent of their interest in the property which is mortgaged.
Court will consider various factors in making that declaration – considered in section 15. See
(1) which sets out a list of matters relevant in determining applications:
(1) The matters to which the court is to have regard in determining an application for
an order under section 14 include—
(a) the intentions of the person or persons (if any) who created the trust originally (i.e.
was it the intention to purchase the property as a marital home for example),
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