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Land Law: Sale of Land
A short summary of the law governing sale of land in Hong Kong
🤔 Have queries? Ask Phoebe here: https://bit.ly/306kpKd
👉🏻 Answers💡 will be available here: https://bit.ly/3aiWflc
👩🏻⚖️ What is Kong Law? 👨🏻⚖️
Kong Law is a series of videos that aims to provide short summaries of different areas of Hong Kong law. The name "Kong Law" is a transliteration of "港 law", meaning "(Hong) Kong law" and "talk about law".
When I was a law student, I watched videos made by foreign law teachers, practitioners or students whenever I was confused about certain legal principles. However, back then I couldn't rely on those videos totally because they focused on foreign laws.
Now that I've earned my degrees and am preparing for a legal career, I decided to make a series of videos which explains Ho...
published: 07 Aug 2020
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Land Law - Mortgages (Part 1)
The key to mortgages is striking a balance between two parties; the mortgagor (often a homeowner) and the mortgagee (often a bank). Beyond this mortgages are also about balance between the strictness of contract law and the flexibility provided by equity. Often the mortgagee is in the stronger bargaining position and will try to enforce a strict adherence to the contract however if this is unconscionable then equity will step in to protect the mortgagor (Knightsbridge Estates Trust Ltd v Byrne [1939]).
The key equity is the right to redeem the mortgage and this is essentially the right of the mortgagor to pay back the mortgage (including costs and interest) to the mortgagee at any time after the date of redemption. Under the 'clogs and fetters' doctrine any attempt to interfere with this ...
published: 31 May 2017
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Law about land,Land sale in sri lanka,House for sale in sri lanka,Law budget lands,land for sale
House and land law
published: 14 Jun 2021
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Legal Advice | Land Law | ශ්රී ලංකාවේ ඉඩම් නීතිය | Sumudu Ediriweera
නීතිය සැමට
SUMUDU EDIRIWEERA
ATTORNEY-AT-LAW
Land Law in Sri Lanka
Facebook: https://www.facebook.com/regencymedialk/
published: 04 Jan 2019
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HKU Land Law I (2017-18) Lecture 2 Video | Sale and Purchase of Land
This video is only intended for in-class educational purposes. It does not constitute legal advice and should not be relied upon as such. Consult your lawyer if you need professional advice on your legal position.
published: 12 Sep 2017
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Property Law - Unregistered Land
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https://go.thelawsimplified.com/PropertyWorkshop
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Get ...
published: 29 Oct 2015
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Property Law - Registered Land
GET THE COMPLETE COURSE FOR $9 - https://go.thelawsimplified.com/FastTrackProperty
For Private Tutoring: http://wa.me/94777037245
Get Access to Courses & Webinars from $31/Month - https://go.thelawsimplified.com/Partner
SQE Prep Masterclass - https://go.thelawsimplified.com/SQEPrepMasterclass
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SQE Prep for FLK2 - https://go.thelawsimplified.com/SQEPrepFLK2
Get FREE Land Law Books - https://go.thelawsimplified.com/LandLawReadingList
Learn the theory and how to articulate a First Class response in Leases for $29 - https://go.thelawsimplified.com/LeasesLesson
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https://go.thelawsimplified.com/PropertyWorkshop
Join the WhatsApp Community - https://go.thelawsimplified.com/PropertyWhatsApp
Get ...
published: 31 Oct 2015
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Land Law - Freehold Covenants
Freehold covenants involve someone who is making a promise and suffers a burden (covenantor) and another person who receives the benefit of that promise (covenantee).
When the original owners move on then questions arise as to whether the original burden or benefit can also run with the land. This means having to explore whether the land transfer happens in common law or equity.
In common law the starting point is privity of contract whereby a contract between two people cannot bind individuals who are not party to that contract. However while the courts have held that the burden does not pass (Austerberry v Corporation of Oldham [1885]) it is certainly possible for the benefit to do so when it touches and concerns the land (Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board [1...
published: 21 May 2017
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Land Law - Mortgages (Part 3)
The remedies in relation to mortgages are mainly available to mortgagees who are trying to get a return on their investment. The main remedies areas follows:
1) Action on the mortgagor’s personal covenant to pay
2) Appointment of a receiver
3) Assertion of the mortgagee’s right to possession
4) Exercise of the mortgagee’s power of sale
5) Foreclosure
1) Even if the bank takes over a property there is still an obligation to repay the debt as per Rudge v Richens [1873].
2) A receiver can be appointed when the money is due and they try to bring about a situation whereby the debt can be paid. The receiver is an agent of the mortgagor (White v Metcalf [1903]) but can be controlled by the mortgagee and owes the mortgagee a fiduciary duty (Medforth v Blake [2000]; Silven Properties v RBS [2004]...
published: 11 Jun 2017
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Land Law Charge
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published: 10 Jun 2021
2:58
Land Law: Sale of Land
A short summary of the law governing sale of land in Hong Kong
🤔 Have queries? Ask Phoebe here: https://bit.ly/306kpKd
👉🏻 Answers💡 will be available here: ht...
A short summary of the law governing sale of land in Hong Kong
🤔 Have queries? Ask Phoebe here: https://bit.ly/306kpKd
👉🏻 Answers💡 will be available here: https://bit.ly/3aiWflc
👩🏻⚖️ What is Kong Law? 👨🏻⚖️
Kong Law is a series of videos that aims to provide short summaries of different areas of Hong Kong law. The name "Kong Law" is a transliteration of "港 law", meaning "(Hong) Kong law" and "talk about law".
When I was a law student, I watched videos made by foreign law teachers, practitioners or students whenever I was confused about certain legal principles. However, back then I couldn't rely on those videos totally because they focused on foreign laws.
Now that I've earned my degrees and am preparing for a legal career, I decided to make a series of videos which explains Hong Kong law in a simple way. I hope you find them helpful :)
👉🏻 Kong Law's IG page: https://www.instagram.com/kong_law_/
https://wn.com/Land_Law_Sale_Of_Land
A short summary of the law governing sale of land in Hong Kong
🤔 Have queries? Ask Phoebe here: https://bit.ly/306kpKd
👉🏻 Answers💡 will be available here: https://bit.ly/3aiWflc
👩🏻⚖️ What is Kong Law? 👨🏻⚖️
Kong Law is a series of videos that aims to provide short summaries of different areas of Hong Kong law. The name "Kong Law" is a transliteration of "港 law", meaning "(Hong) Kong law" and "talk about law".
When I was a law student, I watched videos made by foreign law teachers, practitioners or students whenever I was confused about certain legal principles. However, back then I couldn't rely on those videos totally because they focused on foreign laws.
Now that I've earned my degrees and am preparing for a legal career, I decided to make a series of videos which explains Hong Kong law in a simple way. I hope you find them helpful :)
👉🏻 Kong Law's IG page: https://www.instagram.com/kong_law_/
- published: 07 Aug 2020
- views: 203
23:44
Land Law - Mortgages (Part 1)
The key to mortgages is striking a balance between two parties; the mortgagor (often a homeowner) and the mortgagee (often a bank). Beyond this mortgages are al...
The key to mortgages is striking a balance between two parties; the mortgagor (often a homeowner) and the mortgagee (often a bank). Beyond this mortgages are also about balance between the strictness of contract law and the flexibility provided by equity. Often the mortgagee is in the stronger bargaining position and will try to enforce a strict adherence to the contract however if this is unconscionable then equity will step in to protect the mortgagor (Knightsbridge Estates Trust Ltd v Byrne [1939]).
The key equity is the right to redeem the mortgage and this is essentially the right of the mortgagor to pay back the mortgage (including costs and interest) to the mortgagee at any time after the date of redemption. Under the 'clogs and fetters' doctrine any attempt to interfere with this right of the mortgagor is liable to be altered or struck down by the court. Such clogs or fetters generally fall under one of three categories:
1) Exclusion/postponement of the right
In theory the mortgagor can redeem the mortgage at any time between the date of redemption right until the mortgagee can foreclose on the property. The case of Samuel v Jarrah Timber [1904] is a good example of how this right can be curtailed. The mortgage agreement included a clause that gave the mortgagee the right to buy the property at any time in the first 12 months of the contract. This meant that the mortgagor could potentially pay back the mortgage and yet still lose the property! Even though this was contractually agreed the House of Lords reluctantly stepped in and regarded this clause as a fetter to the right of redemption. Interestingly though this is in contrast to the case of Lewis v Frank Love Ltd [1961] where the mortgage contract and the option were two distinct documents and therefore allowed by the courts. This, however, should not be taken as a hard and fast rule as the case of G&C Kreglinger v New Patagonia Meat [1914] requires a judge to look at the reality of the situation.
On the other side of the coin the mortgagee does have the right to postpone the earliest date of redemption and while this can be unreasonable it is not allowed to be unconscionable.
2) Unfair collateral advantages
When the mortgagee tries to gain some other advantage outside of the actual mortgage agreement the courts will always view this with suspicion. According to Lord Parker in G&C Kreglinger v New Patagonia Meat [1914] these will be struck down if they are:
Unfair and unconscionable; or
A penalty that clogs equity of redemption; or
Inconsistent with the right to redeem
The most common type of collateral advantage exists in the commercial sphere in the form of solus agreements where the mortgagee requires a certain product to be exclusively stocked in a commercial property. Cf Esso Petroleum v Harper’s Garage [1968]. For more information on these topics it is also important to consider the law around restraint of trade as well as EU competition law under Art 101 TFEU.
3) Oppressive interest rates and charges
The UK is somewhat unusual in that the mortgagee does have discretion in terms of the interest charge on a mortgage as most clearly seen in the case of Paragon Finance v Nash [2002] where a variable rate was allowed and Wednesbury unreasonableness was considered. However this does not mean that interest rates can be oppressive as in the case of Cityland & Property (Holdings) Ltd. v Dabrah [1968].
Another important and often overlooked area for mortgagors is consumer protection law. s. 140A(1) of the Consumer Credit Act 1974 allows the court to intervene where the relationship between the creditor and debtor is unfair to the debtor. Meanwhile s. 62 of the new Consumer Protection Act 2015 sets out in full the requirement for contract terms to be fair.
Protection for the mortgagee is also important where the complainant has been “misled” as to the facts of the transaction or has had their will “overborne or coerced” as per RBS v Etridge (No. 2) [2002]. Misrepresentation can cause financial transactions to be voided (Barclays Bank plc v O’Brien [1994]) while undue influence founds an equity in the complainant to void a transaction. According to Lord Browne-Wilkinson in the O'Brien case there are two types of undue influence: actual (such as threats or violence) or presumed (arising out of a relationship). Within presumed undue influence there are two sub-classes: (A) certain designated relationships; and (B) where the complainant places trust and confidence in the other person. In the first instance the burden is on the complainant to establish the relationship but after that the burden is on the other person to try and disprove undue influence. As in Papouis v Gibson-West [2004] this can often be done by showing that the person got independent, professional advice.
Undue influence is also a concern for the lender who can be put on inquiry if they have actual or constructive notice of undue influence.
https://wn.com/Land_Law_Mortgages_(Part_1)
The key to mortgages is striking a balance between two parties; the mortgagor (often a homeowner) and the mortgagee (often a bank). Beyond this mortgages are also about balance between the strictness of contract law and the flexibility provided by equity. Often the mortgagee is in the stronger bargaining position and will try to enforce a strict adherence to the contract however if this is unconscionable then equity will step in to protect the mortgagor (Knightsbridge Estates Trust Ltd v Byrne [1939]).
The key equity is the right to redeem the mortgage and this is essentially the right of the mortgagor to pay back the mortgage (including costs and interest) to the mortgagee at any time after the date of redemption. Under the 'clogs and fetters' doctrine any attempt to interfere with this right of the mortgagor is liable to be altered or struck down by the court. Such clogs or fetters generally fall under one of three categories:
1) Exclusion/postponement of the right
In theory the mortgagor can redeem the mortgage at any time between the date of redemption right until the mortgagee can foreclose on the property. The case of Samuel v Jarrah Timber [1904] is a good example of how this right can be curtailed. The mortgage agreement included a clause that gave the mortgagee the right to buy the property at any time in the first 12 months of the contract. This meant that the mortgagor could potentially pay back the mortgage and yet still lose the property! Even though this was contractually agreed the House of Lords reluctantly stepped in and regarded this clause as a fetter to the right of redemption. Interestingly though this is in contrast to the case of Lewis v Frank Love Ltd [1961] where the mortgage contract and the option were two distinct documents and therefore allowed by the courts. This, however, should not be taken as a hard and fast rule as the case of G&C Kreglinger v New Patagonia Meat [1914] requires a judge to look at the reality of the situation.
On the other side of the coin the mortgagee does have the right to postpone the earliest date of redemption and while this can be unreasonable it is not allowed to be unconscionable.
2) Unfair collateral advantages
When the mortgagee tries to gain some other advantage outside of the actual mortgage agreement the courts will always view this with suspicion. According to Lord Parker in G&C Kreglinger v New Patagonia Meat [1914] these will be struck down if they are:
Unfair and unconscionable; or
A penalty that clogs equity of redemption; or
Inconsistent with the right to redeem
The most common type of collateral advantage exists in the commercial sphere in the form of solus agreements where the mortgagee requires a certain product to be exclusively stocked in a commercial property. Cf Esso Petroleum v Harper’s Garage [1968]. For more information on these topics it is also important to consider the law around restraint of trade as well as EU competition law under Art 101 TFEU.
3) Oppressive interest rates and charges
The UK is somewhat unusual in that the mortgagee does have discretion in terms of the interest charge on a mortgage as most clearly seen in the case of Paragon Finance v Nash [2002] where a variable rate was allowed and Wednesbury unreasonableness was considered. However this does not mean that interest rates can be oppressive as in the case of Cityland & Property (Holdings) Ltd. v Dabrah [1968].
Another important and often overlooked area for mortgagors is consumer protection law. s. 140A(1) of the Consumer Credit Act 1974 allows the court to intervene where the relationship between the creditor and debtor is unfair to the debtor. Meanwhile s. 62 of the new Consumer Protection Act 2015 sets out in full the requirement for contract terms to be fair.
Protection for the mortgagee is also important where the complainant has been “misled” as to the facts of the transaction or has had their will “overborne or coerced” as per RBS v Etridge (No. 2) [2002]. Misrepresentation can cause financial transactions to be voided (Barclays Bank plc v O’Brien [1994]) while undue influence founds an equity in the complainant to void a transaction. According to Lord Browne-Wilkinson in the O'Brien case there are two types of undue influence: actual (such as threats or violence) or presumed (arising out of a relationship). Within presumed undue influence there are two sub-classes: (A) certain designated relationships; and (B) where the complainant places trust and confidence in the other person. In the first instance the burden is on the complainant to establish the relationship but after that the burden is on the other person to try and disprove undue influence. As in Papouis v Gibson-West [2004] this can often be done by showing that the person got independent, professional advice.
Undue influence is also a concern for the lender who can be put on inquiry if they have actual or constructive notice of undue influence.
- published: 31 May 2017
- views: 45602
11:54
Legal Advice | Land Law | ශ්රී ලංකාවේ ඉඩම් නීතිය | Sumudu Ediriweera
නීතිය සැමට
SUMUDU EDIRIWEERA
ATTORNEY-AT-LAW
Land Law in Sri Lanka
Facebook: https://www.facebook.com/regencymedialk/
නීතිය සැමට
SUMUDU EDIRIWEERA
ATTORNEY-AT-LAW
Land Law in Sri Lanka
Facebook: https://www.facebook.com/regencymedialk/
https://wn.com/Legal_Advice_|_Land_Law_|_ශ්රී_ලංකාවේ_ඉඩම්_නීතිය_|_Sumudu_Ediriweera
නීතිය සැමට
SUMUDU EDIRIWEERA
ATTORNEY-AT-LAW
Land Law in Sri Lanka
Facebook: https://www.facebook.com/regencymedialk/
- published: 04 Jan 2019
- views: 121232
3:01
HKU Land Law I (2017-18) Lecture 2 Video | Sale and Purchase of Land
This video is only intended for in-class educational purposes. It does not constitute legal advice and should not be relied upon as such. Consult your lawyer if...
This video is only intended for in-class educational purposes. It does not constitute legal advice and should not be relied upon as such. Consult your lawyer if you need professional advice on your legal position.
https://wn.com/Hku_Land_Law_I_(2017_18)_Lecture_2_Video_|_Sale_And_Purchase_Of_Land
This video is only intended for in-class educational purposes. It does not constitute legal advice and should not be relied upon as such. Consult your lawyer if you need professional advice on your legal position.
- published: 12 Sep 2017
- views: 3173
6:41
Property Law - Unregistered Land
GET THE COMPLETE COURSE FOR $9 - https://go.thelawsimplified.com/FastTrackProperty
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- published: 29 Oct 2015
- views: 50416
5:38
Property Law - Registered Land
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- published: 31 Oct 2015
- views: 40896
17:45
Land Law - Freehold Covenants
Freehold covenants involve someone who is making a promise and suffers a burden (covenantor) and another person who receives the benefit of that promise (covena...
Freehold covenants involve someone who is making a promise and suffers a burden (covenantor) and another person who receives the benefit of that promise (covenantee).
When the original owners move on then questions arise as to whether the original burden or benefit can also run with the land. This means having to explore whether the land transfer happens in common law or equity.
In common law the starting point is privity of contract whereby a contract between two people cannot bind individuals who are not party to that contract. However while the courts have held that the burden does not pass (Austerberry v Corporation of Oldham [1885]) it is certainly possible for the benefit to do so when it touches and concerns the land (Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board [1947]).
In equity the case of Tulk v Moxhay [1843] held that the burden
can pass as the purchaser will have notice. To prevent this principle becoming too broad in nature a distinction is made between positive and negative covenants. For positive covenants the covenantor has to actively do something (Hayward v Brunswick Permanent Building Society [1881]) while for negative covenants there is an obligation to refrain from doing something as in Tulk v Moxhay [1843].
The burden of a positive covenant cannot pass in common law and only passes in equity where there are reciprocal burdens and benefits as in Halsall v Brizell [1957]. However this was restricted by Lord Templeman in Rhone v Stephens [1994] where it was held that this principle would not be effective where there is no choice in accepting the burden. The Law Commission has recently suggested that this are should be replace by 'land obligations' in an extensive review of the subject.
Meanwhile for the burden to pass in equity a number of (rather straight forward) requirements must be met:
the covenant must touch and concern the land
proximity (the dominant land must be able to benefit) – Kelly v Barrett [1924]
intention for the burden to run (presumed by s. 79 Law of Property Act 1925
the covenant must be registered
unregistered land – class D(ii) land charge
registered land – notice under ss. 32 & 33 Land Registration Act 2002
When looking at the benefit of a negative covenant running in equity there are three circumstances to consider:
Annexation - where the benefit is permanently attached to the land. For this purpose Federated Homes v Mill Lodge Properties Ltd [1980] interpreted s. 79 LPA25 so that if the covenant touched the land and the dominant land was identified then annexation is automatic.
Assignment - is very similar to annexation and attaches a covenant to the land at a later date. However the conveyance and assignment must be simultaneous (Re Union of London and Smith’s Conveyance [1933]).
Schemes of development - such as housing estates where there are reciprocal enforcement of obligations the area is clearly identified.
Despite privity of contract it is also important to consider the rights of third parties. s. 56 LPA25 enables a person not party to a covenant to sue upon it where the covenant purports to be made with that person (Lyus v Prowsa Developments Ltd [1982]) and the covenantee is clearly identifiable (Re Ecclesiastical Commissioners for England’s Conveyance [1936]).
In certain circumstances unidentified third parties can sue if a covenant was made for their benefit as per the Contracts (Rights of Third Parties) Act 1999.
For breach of a covenant a number of remedies are available:
Quia timet injunction
Injunction to prevent continued breach
Mandatory injunction
Damages in lieu of an injunction where the requirements of Shelfer v City of London Electric Lighting Co. [1895] are met.
Covenants can be modified or discharged by way of applying the Upper Tribunal (Lands Chamber) under one of the four grounds in s. 84 Law of Property Act 1925:
the covenant has become obsolete
continued enforcement of the covenant is
obtrusive to a public/private use of land
of no practical benefit/contrary to the public interest
compensable by money
all those entitled to the benefit consent to the discharge
the discharge confers no injury on the person benefiting
https://wn.com/Land_Law_Freehold_Covenants
Freehold covenants involve someone who is making a promise and suffers a burden (covenantor) and another person who receives the benefit of that promise (covenantee).
When the original owners move on then questions arise as to whether the original burden or benefit can also run with the land. This means having to explore whether the land transfer happens in common law or equity.
In common law the starting point is privity of contract whereby a contract between two people cannot bind individuals who are not party to that contract. However while the courts have held that the burden does not pass (Austerberry v Corporation of Oldham [1885]) it is certainly possible for the benefit to do so when it touches and concerns the land (Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board [1947]).
In equity the case of Tulk v Moxhay [1843] held that the burden
can pass as the purchaser will have notice. To prevent this principle becoming too broad in nature a distinction is made between positive and negative covenants. For positive covenants the covenantor has to actively do something (Hayward v Brunswick Permanent Building Society [1881]) while for negative covenants there is an obligation to refrain from doing something as in Tulk v Moxhay [1843].
The burden of a positive covenant cannot pass in common law and only passes in equity where there are reciprocal burdens and benefits as in Halsall v Brizell [1957]. However this was restricted by Lord Templeman in Rhone v Stephens [1994] where it was held that this principle would not be effective where there is no choice in accepting the burden. The Law Commission has recently suggested that this are should be replace by 'land obligations' in an extensive review of the subject.
Meanwhile for the burden to pass in equity a number of (rather straight forward) requirements must be met:
the covenant must touch and concern the land
proximity (the dominant land must be able to benefit) – Kelly v Barrett [1924]
intention for the burden to run (presumed by s. 79 Law of Property Act 1925
the covenant must be registered
unregistered land – class D(ii) land charge
registered land – notice under ss. 32 & 33 Land Registration Act 2002
When looking at the benefit of a negative covenant running in equity there are three circumstances to consider:
Annexation - where the benefit is permanently attached to the land. For this purpose Federated Homes v Mill Lodge Properties Ltd [1980] interpreted s. 79 LPA25 so that if the covenant touched the land and the dominant land was identified then annexation is automatic.
Assignment - is very similar to annexation and attaches a covenant to the land at a later date. However the conveyance and assignment must be simultaneous (Re Union of London and Smith’s Conveyance [1933]).
Schemes of development - such as housing estates where there are reciprocal enforcement of obligations the area is clearly identified.
Despite privity of contract it is also important to consider the rights of third parties. s. 56 LPA25 enables a person not party to a covenant to sue upon it where the covenant purports to be made with that person (Lyus v Prowsa Developments Ltd [1982]) and the covenantee is clearly identifiable (Re Ecclesiastical Commissioners for England’s Conveyance [1936]).
In certain circumstances unidentified third parties can sue if a covenant was made for their benefit as per the Contracts (Rights of Third Parties) Act 1999.
For breach of a covenant a number of remedies are available:
Quia timet injunction
Injunction to prevent continued breach
Mandatory injunction
Damages in lieu of an injunction where the requirements of Shelfer v City of London Electric Lighting Co. [1895] are met.
Covenants can be modified or discharged by way of applying the Upper Tribunal (Lands Chamber) under one of the four grounds in s. 84 Law of Property Act 1925:
the covenant has become obsolete
continued enforcement of the covenant is
obtrusive to a public/private use of land
of no practical benefit/contrary to the public interest
compensable by money
all those entitled to the benefit consent to the discharge
the discharge confers no injury on the person benefiting
- published: 21 May 2017
- views: 78880
16:30
Land Law - Mortgages (Part 3)
The remedies in relation to mortgages are mainly available to mortgagees who are trying to get a return on their investment. The main remedies areas follows:
1)...
The remedies in relation to mortgages are mainly available to mortgagees who are trying to get a return on their investment. The main remedies areas follows:
1) Action on the mortgagor’s personal covenant to pay
2) Appointment of a receiver
3) Assertion of the mortgagee’s right to possession
4) Exercise of the mortgagee’s power of sale
5) Foreclosure
1) Even if the bank takes over a property there is still an obligation to repay the debt as per Rudge v Richens [1873].
2) A receiver can be appointed when the money is due and they try to bring about a situation whereby the debt can be paid. The receiver is an agent of the mortgagor (White v Metcalf [1903]) but can be controlled by the mortgagee and owes the mortgagee a fiduciary duty (Medforth v Blake [2000]; Silven Properties v RBS [2004]).
3) Possession is a prelude to sale of the property. The courts can postpone this but only where the mortgagee has brought an action (Ropaigealach v Barclays Bank plc [2000]) though this raises serious human rights questions. This ability under s. 36 of the Administration of Justice Act 1970 is subject to a number of qualifications that have developed over the years.
4) A distinction is made between when the power of sale arises and when it is exercisable and these are set out in ss. 101 & 103 of the Law of Property Act 1925. When the property is eventually sold the money is distributed in a particular order.
The mortgagee has an objective duty of care and a subjective duty of good faith when selling the property. The subjective duty is about not acting in a reckless fashion (Kennedy v De Trafford [1897]) and ensuring there is no conflict of interest (Martinson v Clowes [1882]). The objective duty requires the property to be sold in a timely fashion (FCA Handbook, MCOB 13.6.1R(1)) and as if it were sold freely on the open market (Schedule 17, paragraph 3(2) of the Housing Act 1985).
If the sale is not carried out correctly it can be set aside (Tse Kwong Lam v Wong Chit Sen [1983]) but the more common remedy is to settle the accounts (Artistic Builders v Elliot & Tuthill [2002].
5) Foreclosure is unusual nowadays because it removes the important equity of redemption. It begins with a decree by the High Court of foreclosure nisi and this is later followed by a decree of foreclosure absolute. However some options do remain open to the mortgagor during this time.
https://wn.com/Land_Law_Mortgages_(Part_3)
The remedies in relation to mortgages are mainly available to mortgagees who are trying to get a return on their investment. The main remedies areas follows:
1) Action on the mortgagor’s personal covenant to pay
2) Appointment of a receiver
3) Assertion of the mortgagee’s right to possession
4) Exercise of the mortgagee’s power of sale
5) Foreclosure
1) Even if the bank takes over a property there is still an obligation to repay the debt as per Rudge v Richens [1873].
2) A receiver can be appointed when the money is due and they try to bring about a situation whereby the debt can be paid. The receiver is an agent of the mortgagor (White v Metcalf [1903]) but can be controlled by the mortgagee and owes the mortgagee a fiduciary duty (Medforth v Blake [2000]; Silven Properties v RBS [2004]).
3) Possession is a prelude to sale of the property. The courts can postpone this but only where the mortgagee has brought an action (Ropaigealach v Barclays Bank plc [2000]) though this raises serious human rights questions. This ability under s. 36 of the Administration of Justice Act 1970 is subject to a number of qualifications that have developed over the years.
4) A distinction is made between when the power of sale arises and when it is exercisable and these are set out in ss. 101 & 103 of the Law of Property Act 1925. When the property is eventually sold the money is distributed in a particular order.
The mortgagee has an objective duty of care and a subjective duty of good faith when selling the property. The subjective duty is about not acting in a reckless fashion (Kennedy v De Trafford [1897]) and ensuring there is no conflict of interest (Martinson v Clowes [1882]). The objective duty requires the property to be sold in a timely fashion (FCA Handbook, MCOB 13.6.1R(1)) and as if it were sold freely on the open market (Schedule 17, paragraph 3(2) of the Housing Act 1985).
If the sale is not carried out correctly it can be set aside (Tse Kwong Lam v Wong Chit Sen [1983]) but the more common remedy is to settle the accounts (Artistic Builders v Elliot & Tuthill [2002].
5) Foreclosure is unusual nowadays because it removes the important equity of redemption. It begins with a decree by the High Court of foreclosure nisi and this is later followed by a decree of foreclosure absolute. However some options do remain open to the mortgagor during this time.
- published: 11 Jun 2017
- views: 13911
2:37
Land Law Charge
-- Created using Powtoon -- Free sign up at http://www.powtoon.com/youtube/ -- Create animated videos and animated presentations for free. PowToon is a free to...
-- Created using Powtoon -- Free sign up at http://www.powtoon.com/youtube/ -- Create animated videos and animated presentations for free. PowToon is a free tool that allows you to develop cool animated clips and animated presentations for your website, office meeting, sales pitch, nonprofit fundraiser, product launch, video resume, or anything else you could use an animated explainer video. PowToon's animation templates help you create animated presentations and animated explainer videos from scratch. Anyone can produce awesome animations quickly with PowToon, without the cost or hassle other professional animation services require.
https://wn.com/Land_Law_Charge
-- Created using Powtoon -- Free sign up at http://www.powtoon.com/youtube/ -- Create animated videos and animated presentations for free. PowToon is a free tool that allows you to develop cool animated clips and animated presentations for your website, office meeting, sales pitch, nonprofit fundraiser, product launch, video resume, or anything else you could use an animated explainer video. PowToon's animation templates help you create animated presentations and animated explainer videos from scratch. Anyone can produce awesome animations quickly with PowToon, without the cost or hassle other professional animation services require.
- published: 10 Jun 2021
- views: 130