Repossession of Mortgaged Property

When can the mortgagee go into possession?

As soon as the mortgage is signed. They have a legal term of years in the property, or the statutory equivalent, unless someting in the contract says otherwise (either implied or express) - Four-Maids Ltd v Dudley Marshall Properties [1957]

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Can the mortgagee take possession by peaceable entry if the freehold owner does not have an overriding interest, such as actual occupation?

Yes. Ropaigealach v Barclays Bank [2007]

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Which section details when the mortgagee has a power of sale?

S103 Law of Property Act 1925

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Which section gives the mortgagee a power of sale?

S101 Law of Property Act 1925

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According to S103 LPA 1925, when can the power of sale be exercised after a notice to pay has been given and no payment received?

The mortgagor was served with a notice to pay and defaulted for three months

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According to s103 LPA 1925, when can the power of sale be exercised in terms of interest payment arrears?

When some interest under the mortgage is in two month's arrears.

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According to S103 LPA 1925, when can the power of sale be exercised, with regards to the mortgage deed?

When a provision in the mortgage deed has been breached

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Exercise of the power of sale is not a 'deprivation of possessions'. Which case? Which human rights provision?

Horsham Properties v Clark [2008], referring to Protocol 1, article 1 of the ECHR. This is true even if the court has not made a possession order.

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What happens in terms of overreaching if the power of sale is exercised?

All existing equitable interests are overreached, including actual occupation. (S2(1)(iii)LPA 1925)

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What does the purchaser not need to regard if overreaching takes place?

So long as the purchaser has paid two or more trustees/a trust organisation, he/she does not need to be concerned with the trusts of the proceeds of sale (S27 LPA 1925)

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What happens to the beneficiaries of the equitable interests when overreaching takes place?

They could only have a claim against the trustees and not the purchaser. Their equitable interests would be overreached.

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What priority does registration of mortgage taken in terms of other interests?

It postpones to the mortgage any interest which does not have a protected priority at registration. S29 Land Registration Act 2002

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Would an actual occupation be construed as a protected interest for the purposes of S29 Land Registration Act 2002?

Yes, (schedule 3, para 2, Land Registration Act 2002) if it is proprietary and an interest at the time of registration. Abbey National BS v Cann [1991].

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Repossession of Mortgaged Property

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