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Enforcing mortgages and charges

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Latest Property Disputes News

Property Disputes weekly highlights—5 August 2021

Property Disputes weekly highlights—5 August 2021

The following Property Disputes news provides comprehensive and up to date legal information on Property Disputes weekly highlights—5 August 2021

Rent repayment order can only be sought against immediate landlord, not superior landlord (Rakusen v Jepsen)

Rent repayment order can only be sought against immediate landlord, not superior landlord (Rakusen v Jepsen)

The following Property Disputes news provides comprehensive and up to date legal information on Rent repayment order can only be sought against immediate landlord, not superior landlord (Rakusen v Jepsen)

Leasehold reform—Ground Rent Bill gains some much needed clarity

Leasehold reform—Ground Rent Bill gains some much needed clarity

The following Property Disputes news provides comprehensive and up to date legal information on Leasehold reform—Ground Rent Bill gains some much needed clarity

Removing the high bar (EE Ltd and Hutchison 3G UK Ltd v Stephenson and AP Wireless II (UK) Ltd)

Removing the high bar (EE Ltd and Hutchison 3G UK Ltd v Stephenson and AP Wireless II (UK) Ltd)

The following Property Disputes news provides comprehensive and up to date legal information on Removing the high bar (EE Ltd and Hutchison 3G UK Ltd v Stephenson and AP Wireless II (UK) Ltd)

Featured Property Disputes content

Notice to complete

Notice to complete

While this Practice Note primarily covers commercial property matters, it also touches on residential considerations.Time is generally not of the...

Breach of Missives—remedies in Scotland

Breach of Missives—remedies in Scotland

MissivesThe most common form of contract in Scottish property transactions are missives of sale, see for example, the Property Standardisation (PSG)...

Discharging a charging order over land

Discharging a charging order over land

This Practice Note sets out the procedure for discharging a charging order over property, including the removal of any notices or restrictions on...

Remedies for breach of restrictive covenants

Remedies for breach of restrictive covenants

Damages or injunction—the testThe primary remedy for breach of a restrictive covenant is a permanent injunction to restrain the breach. However, the...

Practice notes

What happens to an underlease on termination of the lease?

The general common law principle is that when a lease comes to an end any underlease automatically terminates.Consensual termination—surrender and...
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19th May
Practice notes

What happens to a lease when the tenant's liquidator disclaims?

This Practice Note covers what happens to a lease on disclaimer and the effect of disclaimer on tenants, guarantors and former tenants, applications...
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19th May
Precedents

Example letter 1–Party Structure Notice

To [insert Adjoining Owner]Of [insert Adjoining Owner’s main address][Insert date]Dear [title]The Party Wall etc Act 1996Notice of proposed works –...
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19th May
Q&As

When does the provision in section 6 of the Party Wall etc Act 1996 (notice should be served where excavation within three metres of any part of a neighbouring owner’s building or structure, where any part of that work will go deeper than the neighbour’s foundations) apply? Would it be three metres at any angle or only where the property walls are adjacent?

Section 6 of the Party Wall etc Act 1996 (PWA 1996) applies where:‘ … (a) a building owner proposes to excavate, or excavate for and erect a building...
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19th May
Q&As

Is it possible to forfeit an equitable lease (due to failure to register where the term exceeds seven years), assuming the lease contains a forfeiture provision in respect of the relevant breach?

In principle, equity follows the law and rights which a party can have at law are, broadly, capable also of existing in equity. Accordingly, a right...
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Produced in partnership with Desmond Kilcoyne 19th May
Practice notes

Surrender by operation of law

A surrender by operation of law (or ‘implied surrender’) occurs when the unequivocal conduct of both parties is inconsistent with the continuation of...
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19th May
Practice notes

Rectification—unilateral mistake

This Practice Note considers the remedy of rectification for unilateral mistake. For rectification for common mistake, see Practice Note:...
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19th May
Q&As

When does liability for payment of arrears arise following the service of a section 17 notice on a former tenant or guarantor? Can proceedings be issued immediately following service of the notice (subject to compliance with any pre-action protocols)?

This Q&A addresses the question of when a landlord, having served notice on a former tenant or a guarantor for payment of arrears pursuant to the...
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Produced in partnership with Alex Campbell of Arden Chambers 19th May
Practice notes

Property boundaries

This Practice Note explains how to ascertain the location of property boundaries: the general boundaries rule that applies to HM Land Registry title...
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19th May
Practice notes

Interim rent

This Practice Note sets out what interim rent is, when an interim rent application can be made under the Landlord and Tenant Act 1954 (LTA 1954) and...
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19th May
Practice notes

Rights of light—obstruction notices

This Practice Note summarises the light obstruction notice (LON) procedure, explains the 19 years and 1 day rule and its relevance in respect of...
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19th May
Q&As

Can you serve a notice under the Torts (Interference with Goods) Act 1977 on a vehicle parked on private property? What is the procedure for removal?

Pursuant to section 12 of the Torts (Interference with Goods) Act 1977 (T(IG)A 1977), involuntary bailees of goods are afforded the ability to sell...
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Produced in partnership with Georgia Whiting of 4 King’s Bench Walk 19th May
Practice notes

Estoppel and property law

This Practice Note discusses issue that arise in proprietary estoppel in a property context. For a general discussion of proprietary estoppel, see...
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19th May
Q&As

Where a puisne mortgage is registered against title to land and the lender (a limited company) has been dissolved (a) from whom should a release be sought? (b) what is the process for obtaining release and removal of the entry against the title? and (c) is there any limitation period on enforceability of claims by a company which applies after a company has been dissolved?

A puisne mortgage is a legal mortgage which is not secured by a deposit of documents relating to the legal estate effected by the mortgage—ie one...
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Produced in partnership with Chris Bryden of 4 King’s Bench Walk 19th May
Q&As

How do you calculate the court fee for a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) when the value of the claim is unknown, as is sometimes the case when applying for a declaration under TOLATA 1996?

Assuming that the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) claim is to proceed as a CPR 7 claim (a CPR 8 claim—for which...
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Produced in partnership with Desmond Kilcoyne of 42 Bedford Row 19th May
Practice notes

Trespass—remedies

Coronavirus (COVID-19): During the current pandemic, legislation and changes to practice and procedure in the courts and tribunals have been...
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19th May
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Most recent Enforcing mortgages and charges content

Q&As

Can a mortgagee issue a claim for possession where there is no outstanding capital balance only arrears of interest?

Can a mortgagee issue a claim for possession where there is no outstanding capital balance only arrears of interest?This Q&A assumes that:•the...
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1st Aug
Q&As

Can obligations be protected with a legal charge if there is no monetary value in the obligation being secured?

Can obligations be protected with a legal charge if there is no monetary value in the obligation being secured?In Santley v Wilde, Lindley M.R....
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Produced in partnership with Desmond Kilcoyne 1st Aug
Q&As

What are a mortgagee’s options, in the context of multiple breaches of the mortgage conditions, where the registered proprietor of a private charge has taken possession (following possession proceedings) of the security/property, but has not proceeded to then sell the property?

What are a mortgagee’s options, in the context of multiple breaches of the mortgage conditions, where the registered proprietor of a private charge...
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Produced in partnership with Christopher Snell of New Square Chambers 1st Aug
Q&As

Does a lender with a statutory power of sale need to issue court proceedings in order to obtain possession of the premises or can the property be sold without them taking possession?

Does a lender with a statutory power of sale need to issue court proceedings in order to obtain possession of the premises or can the property be sold...
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1st Aug
Q&As

A CH1 charge by way of legal mortgage was obtained as security for a loan. The charge was not registered at HM Land Registry because there was a prior mortgagee who refused for the charge to be registered as their consent was not obtained. Can the second mortgagee prevent the mortgagor from selling the property at an undervalue, and could they apply to the court for an order that the property is sold at market value?

A CH1 charge by way of legal mortgage was obtained as security for a loan. The charge was not registered at HM Land Registry because there was a prior...
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1st Aug
Q&As

What are the consequences of a claimant's particulars of claim in a mortgage possession claim omitting some of the information required by CPR 55? Will the claim be struck out by the court?

What are the consequences of a claimant's particulars of claim in a mortgage possession claim omitting some of the information required by CPR 55?...
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1st Aug
Q&As

Does a judge have any discretion to allow a short extension of time in respect of a fixed term mortgage at a possession hearing or does this relate only to arrears? Interest is being paid, the borrower may be in a position to repay the debt in the near future and there is ample equity to protect the lender.

Does a judge have any discretion to allow a short extension of time in respect of a fixed term mortgage at a possession hearing or does this relate...
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1st Aug
Q&As

Where a property is owned as beneficial joint tenants (X and Y) and was made subject to an interim charging order against one of the joint tenants (X) (with an equitable charge over X's beneficial interest), if the property was later transferred for value to Y as the sole legal owner (being subject to a legal mortgage), does the earlier equitable charge over X's beneficial interest take priority over the later legal mortgage?

Where a property is owned as beneficial joint tenants (X and Y) and was made subject to an interim charging order against one of the joint tenants (X)...
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Produced in partnership with Chris Bryden of 4 King’s Bench Walk 1st Aug
Q&As

I am about to issue mortgage proceedings for possession of non-residential land. The court fee will be £355 in the county court or £528 in the High Court. The value of the land is likely to be very much less than what will be achieved by selling it, so I am likely to seek a money judgment as well (rather than the norma ‘money claim adjourned with liberty to restore provision’). The debt secured is around £1million. Do I also need to pay a fee calculated with reference to the amount of the claim?

I am about to issue mortgage proceedings for possession of non-residential land. The court fee will be £355 in the county court or £528 in the High...
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1st Aug
Q&As

If you have a legal charge over a commercial premises, do you need to issue possession proceedings or can you obtain possession via bailiffs without a possession order?

If you have a legal charge over a commercial premises, do you need to issue possession proceedings or can you obtain possession via bailiffs without a...
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1st Aug
Q&As

What are the relevant pre-action protocols and procedures for obtaining possession and then sale of a property? Our client has a registered charge, which was given by consent by the debtor and the debtor has failed to pay under the terms of the agreement

What are the relevant pre-action protocols and procedures for obtaining possession and then sale of a property? Our client has a registered charge,...
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1st Aug
Q&As

A buyer wishes to purchase a property with the assistance of mortgage funding. It has been proposed that a declaration of trust is entered into which will provide that 60% of the equity in the property will belong to the buyer’s or borrower's parents and 40% of the equity will belong to the borrower. It is understood that this is a means of avoiding a second charge against the property. The borrower's parents will not be occupying the property. What are the risks for the lender in this type of arrangement?

A buyer wishes to purchase a property with the assistance of mortgage funding. It has been proposed that a declaration of trust is entered into which...
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Produced in partnership with Helen Galley of XXIV Old Buildings 1st Aug
Q&As

Under the Leasehold Reform Act 1967, can a mortgagee in possession apply to a landlord for a lease extension in order to recover the monies lent to the tenant?

Under the Leasehold Reform Act 1967, can a mortgagee in possession apply to a landlord for a lease extension in order to recover the monies lent to...
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1st Aug
Q&As

Is it possible for a mortgagee in possession to grant an option to purchase? And is a court order necessary for a mortgagee to exercise their right to grant an agricultural or occupational lease to a tenant for a maximum of 50 years under section 99 of the Law of Property Act 1925?

Is it possible for a mortgagee in possession to grant an option to purchase? And is a court order necessary for a mortgagee to exercise their right to...
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1st Aug
Q&As

What is the procedure for a mortgagee in possession to seek permission to pay surplus monies into court, having exercised its power of sale following repossession proceedings?

What is the procedure for a mortgagee in possession to seek permission to pay surplus monies into court, having exercised its power of sale following...
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1st Aug
Q&As

Can a receiver appointed by a lender by virtue of a charge, bring CPR 55 possession proceedings against the borrower who is occupying the property? If so, in whose name are the proceedings brought?

Can a receiver appointed by a lender by virtue of a charge, bring CPR 55 possession proceedings against the borrower who is occupying the property? If...
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Produced in partnership with Georgia Whiting of 4 King’s Bench Walk 1st Aug
Q&As

A client has obtained an order for sale against a property, possession has been obtained and the property is now on the market. Is there any legal reason preventing the client from purchasing the property if they offer the highest price for the property and the property has been listed on the open market?

A client has obtained an order for sale against a property, possession has been obtained and the property is now on the market. Is there any legal...
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Produced in partnership with Christopher Snell of New Square Chambers 1st Aug
Q&As

Can a mortgagee in possession grant a long residential lease to a purchaser?

Can a mortgagee in possession grant a long residential lease to a purchaser?A mortgagee has a number of powers or rights arising under the mortgage or...
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Produced in partnership with Georgia Whiting of 4 King’s Bench Walk 1st Aug
Q&As

A legal charge over a property does not contain any power to appoint a receiver or take possession. The chargee needs to take possession of the property in order to discharge an outstanding debt. Would the correct procedure be for the chargee to apply for an order for sale or an order for possession?

A legal charge over a property does not contain any power to appoint a receiver or take possession. The chargee needs to take possession of the...
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Produced in partnership with Chris Bryden of 4 King’s Bench Walk 1st Aug
Q&As

A court notice of the hearing date for a lender’s possession claim states that notices need to be served on the tenant/occupier, local authority etc. The notices need to be served within five days of receiving notification of the date of the hearing. Does the five days include weekends or just business days? What can the lender do if, because weekends are included, the notices have been served a day late?

A court notice of the hearing date for a lender’s possession claim states that notices need to be served on the tenant/occupier, local authority etc....
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1st Aug

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