Monthly Archives: March 2014

self assessment questions


1. What is the equity of redmeption and what is its significance?


2. Gice an example of a case where there has been a clog on the equity of redemption?


3. In what circumstances will a collaterl advantage be unenforcebale?


1. Equity redemption is when the mortgagor has paid back the loan and therefore has the equity back in tje property. There is then no question of the morgagee becing able to take the land.


2. Cityland and property holdings ltd v Marden 1979 was a case where there was a clog on the equity of redemotion. It was almost impossible for the mortgagor to repay the loan,


3. Where is has been obtained in a morally reprehensible manner. This is more common in private individuals cases than in commerical situations.


Activity 10.4. Land,. Page 149


compare citylabnd and multiservice cases

a. what are the reasons for the oppsoite result in the two cases?



In Citytland the bank lent money to Mr Dabrah. The banks’s terms allowed them to chagr massive etxra interest if he was late in payments. The court found this to be unreaosnable and deprving Dabrah f equity in the property. This was undue influence.

In Multiservice the mortgage was linked to the exhange rate beteen the Siwss Franc and the pound sterling. 1 ppound varied in value from 4 Swiss Francs to 12 Francs. The court held that there was equality of bragaining power and the term was not morally reprehensible. It was upehd.


The reason for the differentr resilts was that in Citland the mortgagor was said to have his will overboen and it made it impossible for him to pay off the loan.




b. if there is no dispartiy of braginaing power as between mortgagor and mortgagee woyuld the courts stirke dwn a term imposing an unusually high rate of interesr?



No, not just for being unusally high. It would have to be extremely high – so high that it would create an odious debt.





Activity 10.3. Page 149. Land


what sort of considerations would the courts take into account in determining whether a particular tie was reasnabe and in the public interest?


A court will not allow unreasonable restraints f trade. The geogrpahic area and time span is relevant. If a term is oppressive it shall be struck down.

Courts are more rleuctant to intervene now and on ly do so if one side had been respugnant


Activity 10.2. Page 148. Land


to what extenet do you think that Fairclough v swan brewery is consistent with the CA decision in Santley v widle or with trhe new approach of the courts demonstration in kreglinger


This is a case from 1912. A borrowed money and he has the lease of a hotel. A then said to C that he would give him the lease if he – A – failed to repay. A had borriwed from C. A was a month late paying the loan back and C wanted the hotel. Tgus was unreasnable.

The ciurt found for A.

Santley v wilde in 1899 found that a mortgage is a conveyance of lanf for a loan. lord Macnaghte said that mortgagor had to pay back even if this was difficult.

Kreglinger lent money to New Patagonia. In return New Patagonia has to buy sheepksins only from him for the 5 years of the loan. The New PAATAGonia company saidf this was unfair. The court ruled that it was fair.

Santely v wilde is difficult to reconcile with Faircligh v Brewery. It is all about whether it is in the same agreement – the thing about the lender ebing able to take possession of the land.

Activity 10.1. Land. Page 147


read samuel v jarrah tmber 1904   and reeve v lisle 1902 and make notes on the relevant facts, decisons and reasonign.


a. Why was the opton invalid in Smaule v Jarrah.


This case was about Samuel lending money to Jarrah as a mortgage. IF jARRAh – a timber firm – did not pay back on time them Samuel was able to buy Jarrah’s stock at a very reduced price.


The court found for Jarrah that as this was a mortgage Jarrah was able to get back his property. Mortgages may not contain a clause that allows the mortgagee the option to buy the property for whcih the money is borrowed.




b. Why was the option valid in Reeve vLisle.

This is a 1902 case heard in the court of appeal.

There were a series of agreements echancged. As Lisle failed to pay back the loan then Reeve was allowed to enter into partnership.

There was no clog on th e equioty of redemption. The caluse that allowed the mortgagee to take the property was part of a speratre agreement.

What would e the positon if the mortgageee was given the option to purchase other preopety of the mortgagor?


This would not have been permitted as per samuel  Jarrah TIMBer/




Page 146. Self assessment questions. Land


1. What are the requirements for a legal mortgage?

A mortgage of registered land is made by legal charge and is regustered in the charges register of the land concerned.

This us under the Land Registration act 2002.

A mortgage is a conveyance of interest in property as security for payment of debt.

If the land is unregistered you could have a puisne mortgage – i .e. protected by despot of feeds


or a contract for a legal mortgage as an estate contarc

or a general requitable charge


2. In which circumstances does a mortgage require protection on the register in (a) unregistered land and (b) registered alnd?


In registered land they always require protection on the register

in unregeistered land they can be protected as a kand charge


3. Now has the LRA 2002 changed the registration requirements for mortgages?


the only way a mortagge may be given to regusteerd land is now a charge by deed by way of legal mortageg

Under 2002 act any mortagge off the register is equitable.. in order to be enforced it must eb registered formally.  Then it becomes  legal cahrge


Page 141. Land.


question 2.

Consider the extent to whcih the court of appeal decision in federated homes v mill lodge properties 1980 has simplfieid the law relating to the passing of the beenfit of restricgitve covenants with freehold land.


The convenant runs with the land and passes to successor to tht benefit in title. It may relate to the whole land or parts of it. The court is flexible about whether or not the benefit is explecitly linked to the land.


tHE COvneentan is annxed to the whole of the land unless there isa  clear indiucation otherwise.

It has simpliedf the law and made it less technical.

The convenant must not be personal nature.



Land. Page 141.


question 1.

Bob ws te registered owbner of Pinkwell arm and in 2004 he sold one of the fields – Bluefiled-  to Calum , a neihgbouring hseep famer. Caluk covenantaed with Bob 1  to maintain the fences surroduning Bluefiel in good reapir and 2 not to eredt any structure onb Bluefiled ad 3 not to use and not to permit the use of Bluefiled for anty purpose other than for the graxing f shjeep,


In 2007 Bob grabted Dan a ten year lease on the famr and Calum sold Bluefield to Ericv . Eric has engakted to maintain the fences. He is building a sehd on Bluefioeld and has allowed a friend;s daughter to keep a pouny there. Discuss.


There is  a restriuve cvenant  etween Bob and Calum. They intened ti tor un with the land – it touches and concerns the land. It is a covenant. It is valid unde Tulk v Moxhay 1848. This is a posisitve covenant reuqirng someone to do soenthing and to spend money


The thing about sheep is a nagetive covenants


This benefit and burdern pass to Eric and Dan.

Although Eric has not kept the pony there himself he has allowed to to happen and he knows what is happening.

These ciovenants are enfrocable. The burderned party has got something from the origianl promisor – a propetrty/


self assessment questions. page 141. Land


1. When does the burden of a freehold convenant pasd ot a new owenr of servient land?

When they are reciprocal obligation related to land and the title is registeerd as a commonhold estate. There must eb at leatst two units n the commonhold.


2. What are the three requirements for rhe burdern of a covenant to pass in equity Tulk v Monxhay?

It must touch and convernt the land. It must have been the intention of the iorigianl parties that it should run with the land. It must be a covenant and not a contract to escape the doctrine of privuty.


3. When do each of annecztion, assignement and scheme of develooment operate to allow efnrocement of  the benefit of a ciovenensnt




4. How does the enforcement of convenants differ in law and equity?

Equity is mire felxible and more about common sense.




Activity. 9.5. Page 141. Land/


To what extent does the introduction of commonhold imporve the enforcavbility of freehold covenant and the rights of residential leasheoldrs


This greatly increases the enforceability of freehold. Commonhold means public areas of a building are commonly owned by many different freehold owners of individual flats etc…


This increases the rights of residential leadesholder.s They cannot lose their land due to non payment of service charges.