Land Law

Ninth edition

by Mark Davys

Suggested Answer to Exercise 7.3 (Part 2)


Planning Your Answer

Can Sharks Ltd enforce the mortgage against Emily?

  • If not, what are the consequences of Sharks Ltd enforcing their security against Clayton alone?
  • If Sharks Ltd can enforce the mortgage against Emily, what options are available to it and is Emily entitled to any relief?

Rules

  1. Relief is available to a mortgagor who has been the subject of a misrepresentation or undue influence by a joint borrower.
    • Is Emily the victim of misrepresentation or undue influence?
    • If so, did Sharks Ltd comply with the requirements set out in Royal Bank of Scotland Plc v Etridge (No. 2) [2002] 2 AC 773?
    See Land Law, Section 7.4.4.
  2. If Emily is entitled to relief against Sharks Ltd, is her interest in the land secure? This raises issues about her rights as a co-owner of the land (and Trusts of Land and Appointment of Trustees Act 1996).See generally Land Law, Chapters 10 and 11.
    See generally Land Law, Chapters 10 and 11.
  3. If the mortgage is enforceable against Emily, what remedies are available to Sharks Ltd? Can Emily (through Clayton) seek any relief? See Land Law, Section 7.5.
    [If this question featured in an assessment you would need to assess how much weight to give to this aspect of the question. There is a strong possibility that Emily will succeed under (a) above. Do you have sufficient time (or a sufficiently large word limit) to address this issue comprehensively?]

Answer Plan

  1. Introduce the issues, the key concepts and why they are important.
  2. Etridge:
    1. Misrepresentation or undue influence?
    2. Was Sharks Ltd ‘on inquiry’?
    3. Has Sharks Ltd done enough to avoid being fixed with notice of the wrong?
  3. Sharks Ltd’s rights against Clayton and their consequences for Emily.
  4. Sharks Ltd’s rights against Emily if the legal mortgage is enforceable.
  5. Make sure that you have stated your conclusions and that these conclusions follow logically from your reasoning.

Before you go to the next page, prepare a more detailed answer plan, including references to relevant cases and statutes.


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