Cook v The Mortgage Business L.J Etherton

Issue
1. Whether the mortgagee right to possession has priority over the vendors right to occupation
Rule
1. Overriding interest under LRA 2002 Schedule 3 para 2
  1. Must be a proprietary right adversely affecting the title LRA s.123(3)(b)
2. Ahmed case authority for Cann principle applying
  1. because on same day contract for sale exchanged, transfer and mortgage executed
    1. Cann
      1. 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
Facts
1. No reference was made in the contracts for sale to a leaseback to the vendors
  1. Vendors would be selling without reserving any beneficial interests other rights in the property
2. No equity could have arisen prior to completion of payments
Obiter Dicta
1. Too technical and not realsitic
  1. Separate contract, transfer and mortgage

Resource summary

	Created by harrishyatt over 9 years ago