The following Property Q&A Produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:
The purpose of a mortgage is to provide security to a lender against a loan, meaning that if the borrower defaults the mortgagee can exercise the power of sale to recover their monies. The maxim ‘once a mortgage always a mortgage’ is invoked where a mortgagee rather than enforcing the power of sale seeks to rely upon a term in the mortgage requiring that the borrower on default instead must transfer the property to the mortgagee. A mortgagor is entitled to exercise the equity of redemption, meaning that they are entitled to redeem the property once the debt has been discharged, or to retain the surplus following the exercise of a power of sale. An arrangement whereby the mortgagor in default must transfer the property to the mortgagee is said to be a clog on the equity of redemption.
In Jones v Morgan, it was held that
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An intention to create legal relations is requiredThere are various situations in which a court will hold that an agreement is not binding because, though supported by consideration, it was made without any intention of creating legal relations (see, eg, Blue v Ashley).Did the parties intend to
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