Cook v The Mortgage Business L.J Etherton

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