ABSTRACT
RIGHTS OF THE MORTGAGOR Biggs v Hoddinott (1898) Collateral advantages are enforceable whilst the mortgage continues Bradley v Carritt (1903) A term of a mortgage cannot be enforced after redemption of the mortgage Kreglinger v New Patagonia Meat & Cold Storage Ltd (1914) A mortgage term will be upheld if it is not a clog or fetter on redemption Fairclough v Swan Brewery Co (1912) A term preventing redemption until weeks before a long lease ends is a fetter on redemption Knightsbridge Estates Trust Ltd v Byrne (1939) A term postponing redemption between two businessmen will not be a fetter on redemption Jones v Morgan (2002) A provision that the mortgagee could have a share or interest in the property constituted an impermissible clog on the mortgagor’s equity of redemption
ORDER FOR SALE Barrett v Halifax Building Society (1996) A mortgagor can force sale against the wishes of the mortgagee
UNFAIR TERMS Multiservice Bookbinding Ltd v Marden (1979) A mortgage will not be set aside if there is no evidence of unequal bargaining power between two parties; independent advice is given and one party did not take advantage of the other Cityland & Property (Holding) Ltd v Dabrah (1968) If the original rate of interest is unfair a court has the power to substitute a new rate Paragon Finance plc v Nash (2002) The right to vary interest can only be exercised for proper motives
UNDUE INFLUENCE Barclays Bank v O’ Brien (1994) A mortgagee will be bound by the mortgagor’s rights where he/she enters the mortgage under undue influence CIBC Mortgages v Pitt (1994) A mortgagor cannot rely on undue influence if it was not exerted by the mortgagee or his agent Royal Bank of Scotland Ltd v Etridge (No. 2) (1998) There can be undue influence even where there had been independent advice but not if the proper steps are observed Alliance and Leicester plc v Slayford (2001)
l a n d l a w
The mortgagors were publicans and a term of their mortgage over the public house which they ran, was that the mortgagees would supply all the beer to them. The mortgagors argued that this term was void in equity because it was a clog or fetter on the mortgage.
