Land Law

Front 1

Equity of Redemption: right is to the money only

Back 1

Thornbrough v Baker
"in natural justice and equity the peinciple right of the mortgagee is to the money and his right to the land is only as security for the money."

Front 2

Early Redemption

Back 2

Fairclough v Swan Brewery (1912) - only redeemable near lease expire

Front 3

Redemption delayed (as part of a deal)

Back 3

Knightsbridge v Byrne
Lord Green MR
commercial trade off to get a better rate

Front 4

Reconciling Fairclough and Knightsbridge

Back 4

per Green MR more about preventing "oppressive or unconscionable" terms rather then hard and fast rules

Front 5

Necessitate men are not always free men

Back 5

Vernon v Bethell

Front 6

Generally an option to purchase as part of mortgage is not allowed as it is a clog on the equity of redemption

Option to buy

Back 6

Samuel v Jarrah Timber (1904)

Front 7

The mere fact that there is a mortgage with a option to buy is not conclusive of a clog the courts must look at the true nature of the bargaining

Option to buy

Back 7

Warnborough Ltd v Garmite Ltd 2003

Front 8

Right to buy: unfairly negotiated

Back 8

Jones v Morgan 2002

already has mortgage needs more money so offers right to buy in exchange

under finical pressure

even though 3 years apart not allowed

Front 9

Right to buy: 12 days later OK

Back 9

Reeve v Lisel 1902

Documents 12 days apart

Front 10

Unconscionable conduct = separate transaction void

Back 10

Lewis v Frank Love - right of preemption refused

Front 11

Collateral advantages = clogs
(beyond the term of the mortgagee)

Back 11

Bradley v Carritt 1903 - tea company mortgaged to tea broker

Front 12

Lord Linley's dissenting judgement

Back 12

In Bradley v Carritt
1. Was the term fair?
2. Entered into freely?
3. Commercial transaction at arms length?

Front 13

Collateral Advantages: OK to preserve commercial freedom

Back 13

Biggs v Hoddinott 1898 - beer case arrangement

Front 14

Respect freedom to make collateral advantages but keep equity of redemption to prevent unconscionable dealings

Back 14

Kreglinger v New Patagonia Meat

Front 15

Follow Australian approach and forget clogs and fetters approach just focus on unconscionable conduct

Back 15

Commonwealth Bank of Australia v Amardio

Front 16

Judicial critique of fetters and cogs approach (x3)

Back 16

1. Lord Halsbury L.C. in Samuel v Jarrah Timber
"cannot appreciate the sense or reason"
2. Lord Loreburn in British South Africa v De Beers
"an aid instead of a hinderance of unjust dealing"
3. Lord Mersey in New Patagonia Meat
"an unruly dog straying from its kennel"

Front 17

Restraint of Trade

Back 17

Esso Petroleum v Harpers Garage
unreasonable restraint of trade is void
solus agreement for 21 year invalid
tie in for 5 years ok

Front 18

Intrest rates: unconscionable can be altered by courts

Back 18

Cityland Holdings v Dabrah -rates in effect 19% or 38% court made in 7%

Front 19

Interest rates: unreasonable not enough to alter

Back 19

Multisevice Book Binding v Marden - swiss franc
equal powers business parties

Front 20

Varying intrest rates

Back 20

Paragon Finance v Nash and Staunton and Pender
courts will act against unconscionable conduct
capriciously, improperly - genuine com reasons
Or if unreasonable such that no other lender would
Applicable to commercial?

Front 21

Statutory control of interest rates consumer

Back 21

Consumer Credit Act 1974 (amended 2006) s.140

Front 22

Soft Law on responsible lending

Back 22

Financial Services and Marketing Act 2000

Front 23

Resisting possession: at common law

Back 23

Brimingham CPBS v Caunt
limited help only a few months

Front 24

Resisting possession: in equity (x2)

Back 24

Quennell v Maltby - Lord Denning
Can only take possession to protect security
Albany Homes v Massey Obiter

Front 25

Resisting possession: statute

Back 25

s. 36 Administration of Justice Act 1970

Front 26

AJA s. 36: Can prevent possession for the life time and s. 36 only used once

Back 26

Cheltenham & Gloucester v Norgan

Front 27

AJA s. 36: delay in possession will not effect the ability to pay in full (i.e.. the value wont decrease)

sale by mortgagor

Back 27

Bristol West v Ellis
National Provincial v Lloyd

Front 28

Power of Sale arisen

Back 28

LPA s.101

Front 29

Power of Sale exercisable

Back 29

LPA s.103

Front 30

The mortgagee only has a duty to act in good faith, as they have no obligations to the mortgagor's interests

Back 30

Silven v RBS
Meretz Investments

Front 31

Mortgagee must however take reasonable care to obtain a fair market price

Back 31

Cuckmere Brick Co
Standard Chartered Bank v Walker

Front 32

Can sell to employee

Back 32

Halifax v Corbett

Front 33

Can sell to a company it has an interest in

Back 33

Bardford & Bingley v Ross