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Cook v The Mortgage Business L.J Etherton

harrishyatt Land Law undergraduate English

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Cook v The Mortgage Business L.J Etherton

  1. Issue

    • Whether the mortgagee right to possession has priority over the vendors right to occupation
  2. Rule

    • Overriding interest under LRA 2002 Schedule 3 para 2
      • Must be a proprietary right adversely affecting the title LRA s.123(3)(b)
    • Ahmed case authority for Cann principle applying
      • because on same day contract for sale exchanged, transfer and mortgage executed
        • Cann
          • How to have an overriding interest by occupation against a chargee?
            • Charge is a right enabling its holder (chargee) to sell the land to ensure payment of a debt
            • Has to be actual occupation at the time of creation of legal estate
  3. Facts

    • No reference was made in the contracts for sale to a leaseback to the vendors
      • Vendors would be selling without reserving any beneficial interests other rights in the property
    • No equity could have arisen prior to completion of payments
  4. Obiter Dicta

    • Too technical and not realsitic
      • Separate contract, transfer and mortgage

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2012
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harrishyatt
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