Q4

A mortgage is a type of security interest in which the legal or equitable title to an asset is
transferred to the secured creditor with the express or implied promise that it will be
transferred again after the secured obligations have been paid off. A mortgage is "...a
conveyance of land or an assignment of chattels as security for the payment of a debt or the
discharge of some other obligation for which it is given," according to Lindley MR in the case
of Santley v. Wilde (1899). As previously stated, at its most basic level, it is borrowing money
with the promise of repayment. If the borrower misses a payment, the lender may sell the
asset to recoup the debt and any accumulated interest. Selling the property is the most
typical method a lender will use to accomplish this. The person who takes out the loan is
known as the mortgagee, whilst the financier to whom the debt is owed is known as the
mortgagor.

The mortgage is lawful if the mortgagor has a legitimate interest in the property and
transfers that interest to the mortgagee as security. The mortgage must be equitable if the
mortgagor only has an equitable interest. However, a mortgagee who has a legal interest
may create an equitable mortgage over that interest. What the mortgagee receives
determines the sort of mortgage, not necessarily what the mortgagor has. The concept of a
mortgage is incredibly flexible in real property law. Mortgages have been used as security for
loan repayment or the fulfilment of other obligations for much longer than the practise of
using a mortgage to fund the acquisition of real estate. The land is given to the lender but is
also covered by a provision for redemption, according to which the transfer is nullified or the
land is given back to the borrower once the loan has been repaid.

Lenders, mainly banks, give borrowers loans to pay mortgage installments. For profit,
lenders add interest to mortgage payments. If the borrower defaults or violates mortgage
terms, the lender can sell the property. Sir Donald Nicholls V-C in Palk 1993 stated that a
mortgagee can do nothing and owes some duty to the mortgagor. However, common law
and equity limit his actions. However, many argue that the lender, usually a well-established
institution with good financial standing, has more bargaining power than the borrower, who
is usually one or two people. Parliament and equity protect borrowers from exploitation.
Harman J stated in Four Maids v Dudley that a mortgagor can take possession "as soon as
the ink is dry." Critics say the mortgagee did nothing wrong but lost their security. Despite
being the law, this statement ignores practical safeguards for taking possession of the land.
In Quennell v Maltby 1979, the mortgagee had to operate in good faith to take control of
mortgaged land. ‘A mortgagee will be barred from gaining possession save when it is sought
bona fide,’ Lord Denning said. The wife tried to evict the tenants on her husband's behalf,
but they had statutory rights. Martin Dixon argues this strategy is outdated because it has
been around for years but has not been used in current cases, proving its ineffectiveness. In
2011, the "pre action Protocol for Possession Claims" was revised to guarantee mortgagees
justified their property seizures by presenting the mortgagor with accurate information and
explanations.

The lender can also repossess under AJA 1970 s36. If payments can be made in a
"reasonable time," the courts can delay payment. In Cheltenham v Norgan 2006, the
mortgage period was considered fair. Thus, if the mortgagors can show that this is enough
time to make mortgage payments, the courts will be flexible and sympathetic in preventing
possession. First, s36 applies to dwelling houses. Second, the lender needs possession. The
Court of Appeal ruled in Ropaigealach that the mortgagee had not sought possession. Under
s6 of the Criminal Law Act 1977, they were not criminally liable because they peacefully
possessed the property when the occupiers were away. Third, the mortgagor must have a
fair time to repay. As mentioned, this is the mortgage term. Finally, if the mortgagor can
prove he can pay "any sums due" within a reasonable timeframe, the courts will postpone
possession. This provision is unclear, thus Parliament amended s8 of the AJA 1973 to define
any monies owed as arrears, making it easier to comply with.

Mortgagees' main solution is sale. If the mortgagor defaults, the mortgagee can sell the
house. This requires the mortgagee to have a power of sale. The LPA splits when the power
of sale is exercisable. S101 of the LPA states power only arises if not excluded by the deed
and s103 states it is exercisable if the borrower has been served a notice requiring payment
and nothing has been done in 3 months. Second, since foreclosure is expensive, the
mortgagee may not use it. It also deprives the mortgagor of his property; thus, courts avoid
it. It requires a court order and is unfavourable to the mortgagor. Target v Clothier 1994
showed that courts will delay possession if they think the mortgagor can sell the property for
more. A mortgagee's last option is a receiver. The mortgagor cannot choose or fire them.
They manage the property in good faith and maintain it as in Medford v Blake.

As the land's "true owner," the mortgagor retains equity. Redemption is a mortgagor's right.
After a mortgage is created, there is usually a contractual date for repayment, but in
common law, the mortgagor must give his land to the mortgagee and be sued if he fails to
pay.

The mortgagor's fair right to redeem—the clogs and fetters approach—is the most
important. Equity allows land mortgage discharge. Jones v Morgan 2001 and Fairclough v
Swan Brewery argue that any mortgage agreement removing the opportunity to redeem is
void. Lord McNaghten contended in Fairclough that the contractual right to redeem made
the equitable right to redeem illusory, making it worthless. Jones v Morgan argued that the
clogs and fetter technique should be repealed or modified because to a confused law.
Financial Services and Markets Act 2000 protections exist. Regulating mortgage contracts
ensures fairness and openness. Consumer welfare advocates prefer this method because it
considers vulnerable parties' intentions and prevents unfair exploitation. The Consumer
Credits Act 1974+2006 allows mortgagors with positive equity to keep borrowing, protecting
borrowers and fighting fraudulent credit arrangements to reduce interest.

Reforms and initiatives have followed. In 2009, two government initiatives termed the
mortgage rescue programme allowed arrears mortgagors to give a social landlord a whole or
partial equity ownership in their home. The 2009 Homeowners Mortgage Support Scheme
(SMI) allowed mortgage owners to postpone interest payments for two years. Wood 2009
said that these reforms were modern and meant to protect mortgagors, but they failed. SMI
sponsored 16 mortgagors in July 2009. The initial scheme benefitted only 92 mortgagors.
Government initiatives to modify the law must be implemented responsibly and financially
to benefit mortgagors.

The mortgagee's right to possession contradicts article 1 of the ECHR, "the enjoyment of
one's possessions," according to activists. S. Nield claims that this right violates article 1 and
article 8 because repossession is necessary to repay the loan, but the way it is sought
violates human rights. He also proposes amending s87 LPA's right of possession because it
conflicts with the HRA. The mortgagors alleged that the mortgagee's sale of their property to
a third party and subsequent claim for possession violated certain Convention Rights under
the HRA, including article 1. Courts dismissed this article's violation.

A private member bill, "The Secured Lending Reform Bill," was introduced to Parliament in
2010 to end mortgagees' rights to peaceable re-entry and provide mortgagors enough
notice to prepare. The Bill allowed courts to change mortgage terms like interest rates and
payment schedules. Moreover, s36 AJA should be expanded to include all property
applications, not just dwelling houses. The Bill was not confirmed; thus, any legislation
modifications must be revived.

To conclude in regards the fair balance of law in this area, mortgagees have more rights and
remedies than mortgagors, but there are safeguards to protect the less financially stable
mortgagor, either by statute or legal or equitable provisions. Mortgagees have more
authority because suing a mortgagor who hasn't paid their mortgage means losing money.
Banks can control less favourable parties more easily. Mortgagees can exercise and preserve
their rights through several remedies. An order of sale lets the mortgagee sell the property
and take ownership. However, the mortgagor has the right to redeem if the redemption date
has passed, and reforms like bills and SIM protected mortgagor rights.

Word Count: 1446

Q1

The doctrine of adverse possession, which has long been a peculiarity of English land law, is
founded on the idea that, regardless of a formal or official record of ownership, undisputed
long-term use of the land must finally grant the adverse possessor fair title. Only recently
have there been doubts raised about the validity of the doctrine, which has been firmly
established in common law. The Land Registration Act of 2002 (LRA02), which significantly
changed the law of adverse possession, is referred to in the question. It implies that the law
of adverse possession has been effectively repealed by the LRA02. It is argued that this is
incorrect and that, despite the law's extensive reform and some scope limitations, it is
incorrect to claim that adverse possession has been effectively abolished and that it will be
extremely uncommon for a claim based on the doctrine to succeed.

In spite of the many criticisms levelled against the notion, adverse possession is a valid legal
concept. The practise of adverse possession is an application of a rule of legal procedure that
eliminates the obligation to provide legal representation to individuals who disobey their
rights. As another benefit, adverse possession ensures that land-related disputes will be
resolved once and for all. In addition, given that land is a finite resource, the practise of
adverse occupation can serve to ensure that the nation's available land is employed to its
maximum capacity. As a consequence of this, we are able to see that the doctrine does have
some basis in justification. On the other hand, many people believe that the disadvantages
of the theory outweigh its benefits, which has led to a growing number of calls for reform
over the years and culminated in the LRA02.

In the case of Pye v. Graham, Neuberger J. lays forth his reasoning for why adverse
possession cannot be used in a modern legal system and explains why it is no longer
appropriate. He asserts that the idea is both extravagant and irrational in its implications.
Illogical due to the fact that if the 12-year limitation period did not exist, the owner could
make a claim for his land at any time. As a result, the only reason the owner can be said to
have sat on his rights is due to the existence of the 12-year limitation term in the first place.
It is disproportional because it gives the impression of being harsh to the owner while also
being unfair to the squatter that the owner should lose the land with no compensation
because they haven't attempted to evict the squatters for 12 years.

Additionally, it is important to remember that the laws governing adverse possession were
created at a time when there was no formal system of registration and title was regarded as
contingent. In a system where registration is necessary and title is absolute, it has no place.
One of the guiding principles of the registration system, the mirror principle, was
compromised by the procedural problems with the doctrine.

There were procedural objections against the doctrine in addition to the substantive ones.
There was no necessity for notification prior to adverse possession. After 12 years have
passed, the adverse possessor may quietly acquire the land, and the actual owner has no
recourse against the adverse possessor. The land is subject to a constructive trust under S.75
of the LRA 1925, with the opposing possessor as the beneficiary. A third-party buyer will not
be able to learn about this because it won't appear on the register. Additionally, s.70(1)(f) of
the LRA 1925 offers overriding protection to anyone who has acquired rights under the
Limitation Act 1989 (12 years of continuous adverse possession) or is otherwise in the
process of doing so. As a result, a third-party purchaser would not be allowed to remove an
adverse possessor who had not accrued the required 12 years of adverse possession. These
problems served as an example of how the law in this area is not acceptable.

The doctrine of adverse possession underwent a comprehensive revamp as a result of the

LRA 2002. The LRA02's Schedule 6 and s. 96 include the current legal provisions. According
to S.96, the Limitation Act of 1980 will not apply to registered land as of the present. As a
result, a person cannot lose their land just because it has been in hostile possession for 12
years.

Today, the adverse possessor can apply for becoming the registered proprietor of the said
land after at least ten years of adverse possession. Notices will then be sent to the actual
owner and any interested parties by the land registrar - para 2 sched 6.

The actual owner now has three choices when he receives the notice. He could approve the
application; in which case the opposing possessor would be listed as the proprietor. He may
also contest the application on the grounds that the essential elements of adverse
possession have not been proven. Thirdly, if the owner chooses to serve a counter notice,
the true owner has two years to evict the adverse possessor from the property.

Naturally, the first choice won't be favoured. The actual owner will typically choose options 2
and 3 together. As a result, the true owner will receive a 2-year window during which he
may evict the unfavourable possessor. Subject to what will be covered below, the adverse
possessor will have no other options and must leave if he is evicted.

The new law lacks an equivalent to sections 75 LRA25 or 70(1)(f) LRA25, which represents a
significant shift in the way the law is seen. The law no longer appears to be going out of its
way to help the unfavourable possessor. It does seem doubtful that an adverse possession
claim would be successful given the notification requirement and the subsequent 2-year
period to evict the opposing possessor. Before coming to a conclusion, we must take into
account schedule 6, paragraph 5.

The adverse possessor will continue to be listed as the registered proprietor under three
circumstances, despite the true owner evicting him within the 2-year window, according to
paragraph 5. The situations are when the adverse possessor "for some other reason" is
entitled to be registered as proprietor (paragraph 5(3)), when the adverse possessor would
be unconscionable for the current proprietor to evict them (paragraph 5(2)), and when there
is a boundary dispute involving adjacent land and the applicant reasonably believed the
disputed land was his for at least 10 years.

Given the stricter regulations governing adverse possession, it is anticipated that these three
exceptions will be where the real conflict arises. Since these sections have not yet been the
subject of any cases, we are unsure of their scope and application. However, it is claimed
that upon closer inspection they are rather broad in nature. A form of estoppel occurring in
favour of the hostile possessor is mentioned in paragraph 5(2). Due to the fact that equity
will take into account all relevant factors, the application of this exception may be very
broad.

The phrase "for some other reason" can be found in paragraph 5(3), and its meaning is self-
explanatory. According to Martin Dixon, who refers to it as a "catch all" exception, the courts
may use this in a variety of situations where they consider that the contested possessor
should be designated as the proprietor anyhow. Martin Dixon calls it a "catch all" exception.
It is important to keep in mind, despite the fact that Paragraph 5(4) makes reference to
boundary mistakes, that the vast majority of adverse possession cases are in reality caused
by boundary mistakes. This was the norm prior to the implementation of the reform, and if it
is not changed, the vast majority of unfavourable possession claims will continue to be
upheld and granted success.

In view of the circumstances, it is respectfully argued that although successfully showing

adverse possession in accordance with the new LRA02 is unquestionably going to be a lot
more difficult, the assertion that such cases are going to be extremely rare is not going to be
correct. This is because of the exceptions that are outlined in paragraph 5 of schedule 6 (see
reference). In light of the inquiry, I would say that I do not agree with the premise that an
argument based on adverse possession will be effective in the future. I believe that this
argument will fail.

Word Count: 1402

Q2

The rules that require rights to be created inside property to be written down (section 53(1)
LPA 1925, section 2(1) LP(MP)A 1989) assist logic since they make it simpler to transfer
ownership of land. These laws were enacted in 1925 and 1989 respectively. Either the
likelihood of a disagreement is reduced as a result of this, or the possibility of the
disagreement being correctly and expeditiously resolved is increased. Even though
observance of these formalities to the letter guarantees certainty, doing so also makes it
more challenging for the judicial system to implement a remedy that is equitable when it is
required to do so. In this paper, we will investigate how the legal doctrine of proprietary
estoppel might be utilised to circumvent certain requirements, allowing ownership interests
to be lawfully constituted despite the fact that certain procedures may not have been
adhered to. According to the ruling in Taylor Fashions v. Liverpool Victoria Trustees, in order
for the legal principle of proprietary estoppel to continue to apply in modern times, it is
necessary to demonstrate that all of the following conditions were met: reliability, reliance,
injury, and unconscionability.

Even in the lack of regulations, the legal system is going to figure out a way to carry out the
wishes of the parties, as will be demonstrated by the development of the norms of
reassurance, which will demonstrate this point. In the case of Gillet v. Holt, it was decided
that obligations stated in a written document can be interpreted as a guarantee. This was an
important decision. A landowner has the right to alter the contents of his legal contract, but
once another party has changed the circumstances to their disadvantage, any agreement
that was made in a written document is irrevocable. The earlier will cannot be enforced by
the court, but anyone trying to rely on proprietary estoppel may produce a prior will as
documentation of the promises made to him. The court cannot enforce the earlier will. It is
unfair to hold it against the landowner since he should not be allowed to break a promise
after it has had a detrimental effect on the dependency of an individual. To do so would be
unjust. When there is incontrovertible written documentation of a promise, it is much
simpler for the legal system to reach a settlement that satisfies both the interests of the
landowner and the plaintiff. This is accomplished through the provision of respect for the
goals that both parties have articulated for the case. In the case of Yaxley v. Gotts, the court
determined that a verbal agreement constituted a warranty since the parties' intentions to
establish intellectual property were very clear. This was the first time that such a
determination had been made.

In the case of Cobbe v. Yeoman's Row Management, it was determined that the knowledge
of a verbal promise in concept did not create a guarantee. This was due to the fact that the
plaintiff was aware that either party may call off the connection while incurring any legal
penalties. In light of this, it was determined that the plaintiff did not have a guarantee. The
problem with relying on verbal assurances is that, due to the fallibilities associated with
human memory, it's possible that the promises won't be carried out as precisely and plainly
as they were said. As a consequence of this, it is difficult for the court to discern the intents
of the parties, which makes it difficult to strike a balance between their rights. In any case,
the court will take it into consideration as a guarantee if the objectives can be proven in a
way that is both clear and accurate. One more person could argue that the case of Thorner v.
Major is representative of a few of the situations in which processes were broken the most,
so enabling an assurance to be inferred based only on the circumstances of the situation.
There was never any clear declaration made either verbally or in writing that established
ownership rights to the property. However, the judicial system is of the opinion that the
landowner intended for the claimant to receive the property for free because of their close
familial connection, the claimant's years of unpaid labour on the property, and the
landowner's gift of money to cover his death taxes. These factors all point to the conclusion
that the landowner had these intentions.

The fact that a formal guarantee is not required raises some concerns due to the possibility
of successful use of proprietary estoppel in conjunction with circumstances in which there is
neither reassurance nor certainty on the precise nature and extent of the asset in question.
If the legal system is unable to discern exactly what the parties had in mind, it may be
impossible to find a solution that strikes a fair balance between the rights of the landowner
and those of anybody else whose interests are based on proprietary estoppel. The judge or
magistrate will need to investigate each facet of the matter before reaching a decision. In a
corporate connection (Cobbe), a highly particular and precise guarantee may be required;
but, in a familial environment among traditionally reticent farmers (Thorner), a different
course of action may be chosen (Dixon).

After the confidence has been proven, the burden of proof shifts to the landowner, who
must demonstrate that any assurances they previously provided cannot be relied upon. This
is necessary because it is anticipated that the claim will be successful after the confidence
has been proven (Greasely v. Cooke). According to the Wayling v. Jones decision, the
guarantee cannot be the sole factor driving the plaintiff's actions. It is anticipated that the
argument will finally be successful once it is proved; therefore, the burden of confirmation is
now on the landowner to demonstrate that whatever guarantee they stipulated was not
possible to depend on after faith was established (Greasely v. Cooke). This is because it is
believed that the argument would ultimately be successful once it is demonstrated. In the
case of Wayling v. Jones, the acts of the plaintiff cannot simply be led by the promise.

Cancellation is possible for certain things that have been confirmed as well as obligations
that have been made, including those that have been made verbally or through a written
agreement. Another step towards achieving a just balance of rights is to get an
understanding of whether or not a landowner may break his vow without suffering legal
repercussions, whether doing so would be unethical, and under what circumstances it would
be unethical for them to do so. According to the decision in Gillet v. Holt, if a landowner
recognises after the fact that an agreement has caused another party to be in a position of
unfair dependence, it will be too late to remove a commitment that was made over a
prolonged period of time. According to Campbell v. Gryphon, it would be unjust to deny a
plaintiff a remedy in the event that any advantage acquired did not result in the expiration of
the plaintiff's equities.

According to the ruling in Crabb v. Arun DC, in order for the legal system to be considered
fair, it must first reach the lowest possible level of fairness. According to the Campbell v.
Gryphon case, the court has a significant degree of discretion when it comes to determining
issues of equity because it has the authority to place a predetermined value on the item in
question. If the plaintiff can show that they have suffered a significant enough loss, the judge
will have the discretion to grant them the exact relief that they have requested. This could
include permission to live throughout life (Inwards v. Baker) or the cost simple (Thorner v.
Major). In the event that this is not the case, the judge will give a remedy that justly
compensates for the harm, which may include the defendant having to pay compensation
(Campbell v. Gryphon, Jennings v. Rice). Finding a solution that is flexible enough to be
provided increases the likelihood of reaching an equitable compromise of rights. In the
event that there is even the slightest bit of uncertainty regarding the legality of a guarantee
or the extent to which the ensuing intellectual property rights will apply, the tribunal will
implement an appeal in order to prevent an unreasonable outcome from occurring.

It might appear with though the ease with which one can rely on private estoppel eliminates
the necessity for processes that defend landowners because of the simplicity of the
situation. According to Etherthon, the allure of proprietary estoppel is reinforced by the
court's considerable discretion in deciding whether to provide an individual or proprietary
remedy. As a result, proprietary estoppel is an especially well-suited and nuanced weapon
for the purpose of preserving the law. Because of the high level of autonomy it possesses,
the court is able to achieve a just and reasonable compromise that takes into account the
rights of both parties.

Word Count: 1500