Deed, mortgage or third party right structure
Remedies:
1. Identify the lender’s aims. Does it just want to recover arrears or does i twant the entire loan
repaid? Select only relevant remedies on the facts provided.
2. For each remedy you have chosen to discuss, check that the remedy is available to the
mortgagee.
Priorities:
1. Identify the type of interest or estate.
2. Check that it has been created properly using the formality rules (so whether it is
legal, equitable or statutory).
3. Produce a timeline to determine whether the interest or estate has beencreated before or
after the mortgage in question.
4. In registered land:
● rights created after the date of registration of the mortgage without the mortgagee’s
consent will not bind the mortgagee or any buyer from the mortgagee;
● rights created before the mortgage will bind the mortgagee and any buyer from the
mortgagee if:
● the interest is registerable at the Land Registry and it is registered by the date of
registration of the mortgage;
● the interest is protected by Schedule 3 of the LRA 2002 and it is in existence by the date
of creation of the mortgage
Behind on payments remedies and arrears
1. Debt action - lender sues borrower for arrears owed at court
- Only useful if buyer has money
2. Take possession- right created immediately on completion of morgage
- ‘Evict’ borrower ahead of sale
- Or
- Take possession in the sense that they get rent from existing tenants.
- Duty to manage with due diligence if they dont need to account the borrower
for income
- Borrower can apply for postponement for order of possession s36 AJA 1970
( administration justice act)
- Borrowers can pay arreasrs. First national bank v syed
- Remedies - Arrears: (behind on payments)
- If borrower can pay arrears - First nationals bank
- 3. Appoint a receiver - receiver manages a property for the bank
- • statutory right to appoint s101(1)(iii) LPA 1925
, - • right to appoint must have ‘arisen’ - legal date of redemption must
have passed
- • right must have become ‘exercisable’ - s103 condition must be
satisfied eg. 2 months in arrears
- • money need to be paid to set order - s109
1. Identify tpr:
- Easement (right over someone's land)
- Covenent (positive and restrictive)
- Mortgage
- Statutory right of occupation s.30 FLA 1996
- State contract (option)
- lease
2. Is it capable of being legal?
- Equitable or statutory
3. Formalities ( deed, in writing ect)
4. Where does the TPR fit into the timeline?
5. Enforcabilty ( did it need to be registered? If so and you have the title is it
registered? )
Third part right example
In December 2017, Zackary married Wendy Nicolson and she came to live with him
at the farm. Joe was not aware of Wendy at the time of completion but she is
refusing to leave.
1. Type of third party right- Statutory right of occupation s.30 FLA 1996 so
wendy has the right to stay there
2. Civil partnership
3. This right is not capable of being legal as it doesnt fall under S 1 (2) LPA
1925 this is statutory right because it comes from statute legislation
4. Conditions under s30 1996:
● Partys have to be in an ongoing marriage (not dead or divorced)
● Property must be intended to be matrimonial home (family home) if these
conditions are not meet wendy meets these conditions and therefore has the
right so it is valid.
Remedies:
1. Identify the lender’s aims. Does it just want to recover arrears or does i twant the entire loan
repaid? Select only relevant remedies on the facts provided.
2. For each remedy you have chosen to discuss, check that the remedy is available to the
mortgagee.
Priorities:
1. Identify the type of interest or estate.
2. Check that it has been created properly using the formality rules (so whether it is
legal, equitable or statutory).
3. Produce a timeline to determine whether the interest or estate has beencreated before or
after the mortgage in question.
4. In registered land:
● rights created after the date of registration of the mortgage without the mortgagee’s
consent will not bind the mortgagee or any buyer from the mortgagee;
● rights created before the mortgage will bind the mortgagee and any buyer from the
mortgagee if:
● the interest is registerable at the Land Registry and it is registered by the date of
registration of the mortgage;
● the interest is protected by Schedule 3 of the LRA 2002 and it is in existence by the date
of creation of the mortgage
Behind on payments remedies and arrears
1. Debt action - lender sues borrower for arrears owed at court
- Only useful if buyer has money
2. Take possession- right created immediately on completion of morgage
- ‘Evict’ borrower ahead of sale
- Or
- Take possession in the sense that they get rent from existing tenants.
- Duty to manage with due diligence if they dont need to account the borrower
for income
- Borrower can apply for postponement for order of possession s36 AJA 1970
( administration justice act)
- Borrowers can pay arreasrs. First national bank v syed
- Remedies - Arrears: (behind on payments)
- If borrower can pay arrears - First nationals bank
- 3. Appoint a receiver - receiver manages a property for the bank
- • statutory right to appoint s101(1)(iii) LPA 1925
, - • right to appoint must have ‘arisen’ - legal date of redemption must
have passed
- • right must have become ‘exercisable’ - s103 condition must be
satisfied eg. 2 months in arrears
- • money need to be paid to set order - s109
1. Identify tpr:
- Easement (right over someone's land)
- Covenent (positive and restrictive)
- Mortgage
- Statutory right of occupation s.30 FLA 1996
- State contract (option)
- lease
2. Is it capable of being legal?
- Equitable or statutory
3. Formalities ( deed, in writing ect)
4. Where does the TPR fit into the timeline?
5. Enforcabilty ( did it need to be registered? If so and you have the title is it
registered? )
Third part right example
In December 2017, Zackary married Wendy Nicolson and she came to live with him
at the farm. Joe was not aware of Wendy at the time of completion but she is
refusing to leave.
1. Type of third party right- Statutory right of occupation s.30 FLA 1996 so
wendy has the right to stay there
2. Civil partnership
3. This right is not capable of being legal as it doesnt fall under S 1 (2) LPA
1925 this is statutory right because it comes from statute legislation
4. Conditions under s30 1996:
● Partys have to be in an ongoing marriage (not dead or divorced)
● Property must be intended to be matrimonial home (family home) if these
conditions are not meet wendy meets these conditions and therefore has the
right so it is valid.
