Tag Archives: Secured Lending

Mortgages prevented lease surrenders which were basis of guarantor release

The Co-Operative Bank Plc v Hayes Freehold Ltd & Ors [2016] was a preliminary hearing in respect of a striking out/summary dismissal application. Here a head lease was granted out of a freehold which was now mortgaged to The Coop Bank. The mortgage prohibited the mortgagor accepting a surrender of a lease without the Coop Bank’s consent.

An underlease had been granted out of the head lease. The underlease was also mortgaged to The Coop Bank so it could not be surrendered without the Bank having released it from that mortgage.

There was a composite deal in which both the head lease and the underlease were purportedly surrendered without the consent of The Coop Bank.

Clause 6 of the surrender of the underlease purportedly released the undertenant and it’s guarantor from further compliance with the underlease.

The High Court ruled that both surrenders were ineffective as the Bank’s consent had not been obtained.

The court also said that the fundamental assumption behind Clause 6 was that the surrender package would be effective. That assumption being disappointed the underlease guarantor remained bound by the guarantee in the underlease.

The Coop Bank therefore had an arguable case in support of it’s interests that must go to full hearing.

The blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Lender not bound by seller’s right to cancel unconscionable bargain

Section 116 of the Land Registration Act 2002 provides:

“It is hereby declared for the avoidance of doubt that, in relation to registered land, each of the following—

(a) an equity by estoppel, and:
(b) a mere equity,

has effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority).”

So an equity, which would include a right to set aside an unconscionable bargain, is an interest capable of binding successors in title.

An interest which falls within any of the paragraphs of Schedule 3 of the Land Registration Act 2002 is not postponed to a registrable disposition under Section 29(1). These interests include:

“An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for—

(a) …

(b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so“.

The type of residential sale and leaseback which follows is now heavily regulated by financial conduct legislation. It is prohibited unless strict requirements are met.

In Mortgage Express v Lambert [2016] Ms Lambert had been in desperate financial straits. She contacted Annonna Ltd, which was owned and run by Messrs Sinclair and Clement. They visited her at her flat and told her that the flat was only worth £30,000. They offered to buy her lease of it for that. They also said that she would be able to continue living there indefinitely, rent free during the first year and then for £250 per month. The agreement to sell and the promise that Ms Lambert could stay were part of a single bargain.

In the course of the sale, she completed an “Overriding Interests Questionnaire” which her solicitors had sent her. It said she had to disclose all overriding interests of which she was aware, and then gave examples including “rights of persons in occupation”. The form said “If any of the above ARE applicable please enter details below”. She returned the questionnaire but did not disclose any rights. Her solicitors told her that flats like hers were selling at £115,000 to £120,000. Ms Lambert confirmed to them in writing that she had decided to sell at £30,000 of her own free will and had not been pressured into selling at that price. She later confirmed that she was happy to sell at an undervalue because her chief concern was to pay off her loan. She seems to have told the solicitors something about an arrangement for a tenancy but the solicitors do not appear to have made any inquiry about the nature of the leaseback.

Sinclair and Clement made an online application to Mortgage Express for a secured loan of £102,000. In the application form they said that they were applying for a buy-to-let remortgage and that the value of the flat was £120,000.

Sinclair and Clement changed solicitors causing a delay in obtaining a revised offer of a mortgage from Mortgage Express so they completed the purchase with the aid of a £30,000 bridging loan. Ms Lambert sold with full title guarantee. Clause 6 of the sale contract provided that vacant possession would be given on completion. Another special condition said:

“Any Occupier(s) who sign(s) this Contract gives his/her consent to the sale and agrees that vacant possession will be given on the Completion Date free from any estate rights or interest he/she may have in the Property (if any).”

Her solicitors’ replies to requisitions on title said that vacant possession was to be given on completion.

Mortgage Express later sent a new £102,000 mortgage offer based on a £120,000 valuation which Sinclair and Clement accepted. Their solicitors told Mortgage Express that the purchase price was £30,000 and that they were therefore taking out indemnity insurance against the possibility of the sale being set aside as an undervalue transaction if Ms Lambert became bankrupt.

Sinclair and Clement’s solicitors certified that Mortgage Express would obtain a good and marketable title free from any charges or onerous encumbrances, and that the purchase would be with vacant possession. The mortgage to Mortgage Express was completed and the bridging loan was paid off out of it’s proceeds

On 21 January 2008 Messrs Sinclair and Clement were registered at HM Land Registry as proprietors of the lease, and the mortgage to Mortgage Express was registered.

With Mortgage Express’s permission, Sinclair and Clement transferred the lease into Sinclair’s sole name but he failed to keep up his repayments so Mortgage Express appointed receivers. Ms Lambert also fell into arrears with her rent, and the receivers began possession proceedings against her.

The Court of Appeal said that the sale was an unconscionable bargain and that Ms Lambert’s right to have the sale to Sinclair and Clements set aside, for that reason, was capable of being an overriding interest and so it was a right that was proprietary in character.

The mortgage to Mortgage Express was made by Sinclair and Clement. Since they were joint registered proprietors, by sections 34 and 35 of the Law of Property Act 1925 they held the legal estate, and entered into the mortgage, as trustees of land so the capital monies from the mortgage were paid to them. As trustees Section 6(1) of the Trusts of Land and Appointment of Trustees Act 1996 gave them all the powers of an absolute owner.

Section 26 of the Land Registration Act 2002 provides:

“(1) Subject to subsection (2), a person’s right to exercise owner’s powers in relation to a registered estate or charge is to be taken to be free from any limitation affecting the validity of a disposition.

(2) Subsection (1) does not apply to a limitation—

(a) reflected by an entry in the register, or

(b) imposed by, or under, this Act.

(3) This section has effect only for the purpose of preventing the title of a disponee being questioned (and so does not affect the lawfulness of a disposition).”

There was no limitation in the register at the time of the mortgage; nor was there a limitation on the validity of the disposition imposed by the Act itself.

Section 26(3) made it clear that Section 26 aimed only to prevent the disponee’s title from being called into question. Section 26 would defeat any right which was an overriding interest to the extent that that right was a right to impugn the title acquired by the disponee.

If there were an overriding interest that interest would not affect the validity of the disposition consisting of the grant of the mortgage. The mortgage would have taken effect subject to it.

The effect of the mortgage being entered into by two (or more) trustees was governed by section 2 of the Law of Property Act 1925 which provides, inter alia, that:

“(1) A conveyance [which would include a mortgage] to a purchaser of a legal estate in land [which would include a mortgagee] shall overreach any equitable interest or power affecting that estate, whether or not he has notice thereof, if—

(ii) the conveyance is made by trustees of land and the equitable interest or power is at the date of the conveyance capable of being overreached by such trustees under the provisions of sub-section (2) of this section or independently of that sub-section, and the requirements of section 27 of this Act respecting the payment of capital money arising on such a conveyance are complied with…”

The bold words state that notice or otherwise of an interest is irrelevant to the question of overreaching.

What would amount to an overriding interest claim in the case of a sale by one trustee is shifted from the land to the sale or mortgage proceeds if the sale or mortgage was made by two trustees and the capital monies raised by the mortgage were paid to both of them. All this being the case here the only remaining question was whether Ms Lambert’s interest was “capable of being overreached”.

In Birmingham Midshires Mortgage Services Ltd v Sabherwal [2000] Robert Walker LJ said:

“The essential distinction is, as the authors of Megarry and Wade note, between commercial and family interests. An equitable easement or an equitable right of entry cannot sensibly shift from the land affected by it to the proceeds of sale. An equitable interest as a tenant in common can do so, even if accompanied by the promise of a home for life, since the proceeds of sale can be used to acquire another home.”

In the same way, Ms Lambert’s claim against Sinclair and Clement could shift to the proceeds of the mortgage which she could use to buy herself another home. It was different in character from an equitable easement which was one of the rights which made no sense unless it was attached to the land (see observations of Robert Walker LJ above).

So if Ms Lambert did have an interest that was an overriding interest, it was overreached by the grant of the mortgage by two trustees to Mortgage Express and her claim was transferred away from the property to the proceeds of that mortgage to buy herself a new home.

Had it been necessary to decide whether Ms Lambert’s right to have the bargain set aside fell within Schedule 3 paragraph 2 of the Land Registration Act 2002, the court would have said inquiry had been made of Ms Lambert before the disposition (that is to say the grant of the mortgage to Mortgage Express) and that she did not disclose the right that she now asserted. She could not reasonably have been expected to have labelled the right she now claimed as arising from an “unconscionable bargain” but it would have been reasonable for her to have at least disclosed that she was not in fact giving vacant possession and that when transferred to the purchasers the lease would be encumbered by the tenancy that she had agreed to take.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Mortgage clause did not sweep up all borrower’s present and future assets

In the Land Registry Adjudicator case of Bonsu v Flex Mortgages Ltd [2016] the borrower had charged the Property, and any rights they may have relating to it, to the lender with full title guarantee by way of legal mortgage. In the same Clause 3 the borrower agreed “that this mortgage is extended to cover any legal or equitable estate which [they] or any one of [them] own[ed] now or acquire[d] at any time in the future.”

However in the mortgage “Property” was not given any extended definition, to include other or after-acquired land – it’s only meaning was the Ground Floor Flat.

The Adjudicator said Clause 3 of the 2006 Charge created a mortgage over the Ground Floor Flat (both as regards the legal estate and any equitable interest). It did not purport to or actually create a fixed or any other form of charge, legal or equitable, over any other property, whether owned contemporaneously with the 2006 Charge or subsequently acquired by the borrower.

The words ” extended to cover” were inappropriate to create an immediate charge over unidentified property. Moreover such a charge was not a usual or standard term of a normal mortgage. If the lender wished to create such a charge, the words of charge would have to be express and entirely clear.

In fact the additional words had been intended to operate as an “all estate” provision. The ” legal or equitable estate” referred to had to relate to the mortgaged ground floor flat defined as “the Property”.

The clause aimed to subject to the 2006 Charge any lesser or different interest owned by the borrower in that Property. So if, at the date of execution, the borrower had a defective legal estate, but a valid equitable interest in the Property, that interest would automatically become subject to the charge.

Also, if the borrower has a defective legal title at the date of the charge, but subsequently got a valid legal estate, that too would be subjected to the charge.

Any other interpretation was implausible because:

1. The clause did not identify the property in which the borrower had a present or future legal or equitable estate. The only property referred to in clause 3 was the Property as defined.

2. It would otherwise create or purport to create a mortgage not only over all after-acquired property, but over every single asset owned by the borrower at the date of the 2006 Charge. So that interpretation was quite against commercial common sense.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Solicitors’ application to Land Registry was negligent misstatement

What follows is a cautionary tale.

In Chief Land Registrar v Caffrey & Co [2016] clients sent their solicitors a Form DS1 Land Registry discharge purportedly signed on behalf of their bank to discharge a mortgage.

It was a forgery.

The clients told the solicitors that the bank was represented by another firm of solicitors, but that was untrue too.

The solicitors did not contact the bank or the so-called bank’s solicitors to verify the DS1 or that the “bank’s solicitors” were actually instructed on it. They submitted the Form DS1 to the Land Registry with a Form AP1 to apply to delete the mortgage.

The Land Registry asked for evidence that the person signing the DS1 had authority to do so on behalf of the bank.

The client supplied the solicitors with a purported power of attorney seemingly appointing four individuals, including the apparent signatory to the Form DS1, as the bank’s attorneys.

The solicitors sent a certified copy of the purported power to the Land Registry. The Land Registry acted on the application, the copy power and the Form DS1, and removed the mortgage from the property’s land register.

Later Santander UK plc lent money on the security of a charge on the property.

When the original Bank discovered that it’s mortgage had been removed, it applied to reinstate it to the register, but Santander objected. A Land Registry adjudicator decided that the original bank’s mortgage should be reinstated, but ranked it after Santander’s mortgage. The original bank then sought and obtained an indemnity for it’s loss from the Land Registry. The Land Registry then sued the solicitors to recoup their outlay under that indemnity.

The first basis of claim was negligence for having assumed a duty of care to the bank and then having breached it. The Land Registry claimed to be subrogated, by Land Registration Act 2002, s 103, Schedule 8, paragraph 10, to that claim of the bank against the solicitors.

But the High Court Master pointed out that the solicitor was acting for the borrowers in the discharge of the bank’s mortgage, and not for the bank, which had conflicting interests. The solicitors had been told that the bank had its own solicitors and so had no reason:
– to think that the bank was relying on it in any way,
– to disclaim any duty towards the bank or,
– to advise it to take its own advice.
Nor was the bank unsophisticated.

The solicitors were never asked to act on behalf of the bank, and never thought they were doing so. They thought that the bank was independently advised. The solicitors were acting for the borrowers, not the bank. The borrowers were not giving instructions to the solicitors on behalf of the bank, but on their own behalf.

The actual act which caused the loss was the act of the Land Registry in removing the charge, not the act of the solicitors in supplying the information to the Land Registry. Facilitating the causing of harm by another person was only grounds for negligence liability in exceptional cases e.g. where someone supplies a dangerous object to, or creates a dangerous situation for, someone else who is known to be irresponsible, or where someone’s job is to take reasonable care to prevent someone else’s actions.

“A solicitor asked to do something for his or her client and against the interests of another person is necessarily doing something capable of harming the other person. If it is done carelessly, it may harm that person even more. But that hardly militates for imposing a duty of care.

The solicitors were responsible for submitting the documents to the Land Registry without making checks. But that is what they were asked to do and their clients could have complained had they not done that. That contractual duty was undertaken to the clients alone.

“The act (of submitting the documents without first making checks) would have been easy to avoid, but at the price of not acting for the clients, or at any rate of greater expense to the clients. Moreover, the bank also has another remedy, i.e. against the [Land Registry].”

Registered land was known to property lawyers and to others, at that time, to be insufficiently secure against that kind of fraud. That was not the solicitors’ fault. The real question was how the law should allocate the risks of such fraudulent activity.

The Land Registry claimed to be subrogated to the rights of the bank. So the issue was to be determined as between the bank and the solicitors. The solicitors had not designed or run the system and it was not fair just or reasonable to make the solicitors responsible to the bank for the risk of fraud within an inherently risky Land Registration system. So the claim failed so far as it was based on negligence.

The Land Registry’s second basis for claim was negligent misstatement i.e. that by completing and/or submitting the application to the Land Registry and/or certifying a copy of the purported power of attorney and/or supplying it to the Registry, the solicitors “expressly or impliedly represented to the Land Registry that they had taken sufficient steps or measures and/or knew of sufficient facts to satisfy [themselves] that” the discharge form had been properly executed, solicitors had been instructed, the power of attorney was valid, the bank wished to discharge the charge, and that the property was no longer charged in favour of the bank.

The Land Registry said that the relationship between the solicitors and the Land Registry was such that the solicitors “knew or ought to have known that the Land Registry would rely upon” those representations in dealing with the application to discharge the bank’s charge, and so “the [solicitors] owed to the [Land Registry] a duty to take reasonable care to ensure that the [representations] were true.” The Land Registry said the representations were false, that it had relied on them and that it had thereby been caused loss.

Unlike the first negligence ground where the Land Registry claimed to be subrogated to the rights of the bank, and the question therefore arose as between the bank and the solicitors, here the issues arose directly between the Land Registry and the solicitors.

The Land Registry had professional staff who might be expected to have systems for checking matters themselves. They did not just blindly accept whatever the solicitors told them.

However the High Court Master was narrowly persuaded that, on the peculiar facts of this case, the solicitors had assumed a duty to take care in the representations which they had made to the Land Registry.

So the Master gave default judgment to the Land Registry, on the second cause of action, for damages to be assessed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Mortgages: later facility letters not caught by restrictions on tacking

Section 48 of the Land Registration Act 2002 provides that charges over registered land rank in the order of their registration. That is subject to the restrictions on tacking contained in sections 49 and 50.

“Tacking” describes the method by which a creditor, with a mortgage securing an original advance, can use that mortgage to secure a further “advance” and so obtain priority for the further advance over sums secured by any second or later mortgage.

As this may prejudice second and later mortgagees, tacking is only allowed in limited cases.

For these purposes an advance is money paid to someone on terms that they will repay it, in other words a loan.

The issue in Urban Ventures Ltd v Thomas & ors [2016] was whether any further advances had been made by the holder of first mortgages on various properties.

Only if further advances had been made, would the restrictions on tacking apply.

The Court of Appeal said the borrowers had entered into a series of further facility letters but essentially all that had happened was that the lender required the borrower to sign up to date versions of their standard terms, and added unpaid interest and fees in respect of the original advances to the account.

No new advances were made.

The facility letter dated 26 March 2009 may have replaced, rather than varied, the previous facility letter as amended, but its purpose was to set out the terms, largely the same as previously applying, to the existing advance.

That facility letter and the subsequent facility letters were restatements, with relatively minor variations, of the original facility letter, rather than the complete extinction of the original facility letter and its replacement with a new contract.

It followed that this was not a case in which tacking arose, and the lender retained its priority as first mortgagee in respect of the advance originally made by it in October 2006.

The unpaid interest was added to the account and capitalised in successive facility letters. In the absence of an express arrangement between the parties to that effect, unpaid interest could hardly be treated as a new or further advance so as to be caught by the restrictions on tracking.

Insofar as fees were payable under the terms of the original facility letter the same would apply to them. However further fees payable on each renewal of the facility, were not payable under the terms of the original facility letter. This was academic because of the substantial shortfall on the sale of the properties. Had it mattered to the outcome of this appeal, it would have been necessary to consider carefully whether, and in what ways, section 49 of the Land Registration Act 2002, and section 94 of the Law of Property Act 1925, applied to the creation of new liabilities which fall within the charging provisions of the first mortgage or charge.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Solicitor should have disclosed price discrepancy to lender

In the Court of Appeal case of Mortgage Express Ltd v Bowerman & Partners [1996] Millett LJ said;

“…..A solicitor who acts for [buyer and lender in] a transaction owes a duty of confidentiality to each client, but the existence of this duty does not affect his duty to act in the best interests of the other client. All information supplied by a client to his solicitor is confidential and may be disclosed only with the consent, express or implied, of his client. There is, therefore, an obvious potentiality for conflict between the solicitor’s duty of confidentiality to the buyer and his duty to act in the best interests of the mortgage lender.”

No such conflict was found by the court to exist:

“It is the duty of a solicitor acting for a purchaser to investigate the vendor’s title on his behalf and to deduce it to the [lender’s] solicitor. He has the implied authority of his client to communicate all documents of title to the [lender’s] solicitor. In the present case, the information in question appeared on the face of the vendor’s title, which consisted of his agreement, subject to contract, to purchase the flat for £150,000. Had the [lender] instructed other solicitors, [the borrower’s solicitor] would have had to provide them with a copy of that agreement. It would then have been for those solicitors to consider whether they ought to inform their client of the price which [the borrower] was paying for the flat. In the present case [the borrower’s solicitor] was instructed to act both for the buyer and the [lender] and it was his duty to investigate the vendor’s title on behalf of each of his clients. He must, therefore, be taken to have been in possession of the documents of title, including [the vendor’s] purchase agreement, not only as solicitor for [the borrower] but also, with [the borrower’s] implied authority, as solicitor for the [lender]. He then came under a duty to the [lender] to consider whether he ought to disclose the information which that documentation contained to them.”

In the Court of Appeal case of Goldsmith Williams Solicitors v E.Surv Ltd [2015] the court said that the question whether the Solicitors were under the Bowerman duty in the present case depended on whether that duty was excluded by, or was inconsistent with, the terms of the solicitors’ engagement, as contained in the Council of Mortgage Lender’s (CML’s) Handbook.

On the contrary Clause 5.1.2 of Part 1 of the CML Handbook could only be explained on the basis that if:

1. a matter “comes to the attention of the solicitor dealing with the transaction which [the solicitor] should reasonably expect [the Lender] to consider important in deciding whether or not to lend to the borrower” and

2. that matter is not confidential to the borrower

then the solicitor should report it to the lender.

One of the matters then included under Rule 6(3)(c) of the Law Society’s Practice Rules 1990 as being a solicitor’s obligation to the lender was “making appropriate searches relating to the property in public registers … and reporting any results … which the solicitor considers may adversely affect the lender”.

A search of the Land Registry in this case was a search for the purposes of that sub paragraph and had resulted in the information that the property had been purchased recently at a lower price which strongly suggested that the current valuation was excessive. The search in this case had obviously been relevant to the value of the proposed security and the information should have been reported to the lender.

However the solicitors’ appeal was successful. Even if they had provided the information they should have on the purchase price and date of purchase of the property, it had not been proved on the balance of probabilities that the lender would have reacted to the information. This was because on their mortgage application the borrower had provided price history information which was not materially different.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Receivers owed no duty of care directly to bankrupt mortgagor

Where a mortgagor is subject to the appointment by the mortgagee of a receiver over the mortgaged property the receiver owes a duty to the mortgagor to look after the property if and to the extent that the mortgagor retains an interest in what remains of the property after the mortgage debt and the receiver are paid off {the equity of redemption).

Where the mortgagor becomes bankrupt, the mortgagor ceases to have any such interest. The equity of redemption becomes vested in their trustee in bankruptcy. Though the mortgagor retains a legal liability under the mortgage, that is limited in nature and duration. Upon his discharge from bankruptcy it is automatically extinguished. The mortgagor walks free from the mortgage and the benefit of the equity of redemption stays vested in the trustee in bankruptcy for the benefit of the general creditors.

In the event of a surplus in the bankruptcy, then under section 330(5) of the Insolvency Act 1986, the trustee must return that surplus to the bankrupt: But the bankrupt has no right to the mortgaged property as such and his interest in any possible surplus can be and is protected by the duties which both the receivers and the mortgagee will owe the trustee in bankruptcy as to their management of the property and its realisation.

The creditors and the bankrupt mortgagor have a shared interest that the property should be managed and disposed of for the best price reasonably obtainable but that does not mean that they are owed any duty by the receivers.

In the Court of Appeal case of Purewal v Countrywide Residential Lettings Ltd & Anor [2015] all the foregoing factors were in play. The residential property had been subject to water damage but the receivers had failed to take timely action to stop the problem, which the mortgagor had told them about, or to claim the insurance proceeds in time. On getting the property back the mortgagor had spent £16000 fixing it.

The court said no legal precedents suggested the receivers’ duty being owed to a bankrupt mortgagor nor was there any justification for imposing such a duty. The mortgagor has ceased to have any interest in the equity of redemption and his ultimate entitlement under s. 330(5) to any surplus in the bankruptcy did not require the imposition of a duty to anyone beyond the trustee in bankruptcy so the receivers were not liable to him.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Mortgage: Solicitor had failed to give surety necessary advice

In Royal Bank of Scotland v Etridge (No.2) [2001] (“Etridge”) the House of Lords considered the obligations and rights of lenders and sureties where the surety is to provide security for the borrowing of another person where that person might be in a position to exert undue influence over the surety.

The common situation is that of a wife mortgaging her interest in the matrimonial home to secure bank borrowing by her husband.

There the House of Lords was concerned to identify the minimum requirements necessary to protect the surety from granting a charge over property without fully understanding the nature and effect of the proposed transaction, and to ensure that the surety took the decision whether to provide security freely and of their own will.

Where a solicitor is advising someone mortgaging property or giving a guarantee to secure another’s debts, the requirements set by Etridge and their responsibilities are:

1. before acting, to consider whether there is any conflict of duty or interest and what is in the best interests of the surety;

2. to confirm the identity of the surety and explain to the surety the reason for the solicitor’s involvement, which is to counter any later allegation of undue influence or failure to understand the transaction and its implications;

3. to confirm that surety agrees to the solicitor so representing and advising the surety;

4. to explain and advise at a face-to-face meeting, without the borrower being present, and in appropriately non-technical language.

Other principles

1. The bank instructs the solicitor but the solicitor should be chosen by the surety. Cost and the fact a solicitor/client relationship pre-exists are important factors so the same solicitor may act for the borrower, the surety and the bank. BUT, the legal and professional duties that the solicitor assumes when accepting instructions to advise the surety, are owed to the surety alone and the solicitor must be satisfied that he can give the surety the necessary advice fully, carefully and conscientiously. If the provision of that service may be inhibited, the solicitor must cease acting for the surety and so inform the bank; and,

2. the core minimum advice to be given and involvement of the solicitor is:

(a) to explain the nature of the documents and the practical consequences for the surety if (s)he signs them (mainly loss of the property made available as security and/or, where a guarantee is being provided, being bankrupted);

(b) to explain the seriousness of the risk involved entailing:

(i) an explanation of the purpose, amount and principal terms of the new facility,

(ii) an explanation that the bank may increase the facility or change its terms or grant a new facility without referring back to the surety,

(iii) an explanation of the surety’s liability under any guarantee,

(iv) discussion of the surety’s means, the value of any property being mortgaged, and whether (s)he or the borrower have other assets with which to make repayment if the transaction fails). So routinely, the bank must provide the solicitor with financial information about the borrower so that the financial risks to be assumed by the surety may be properly explained to the surety. The relevant information will vary but as a minimum should be the borrower’s current indebtedness, the limit of any current facility, and the limit and terms of any proposed facility;

(c) to explain that the surety has a choice and that the choice is the surety’s alone. This will be informed by the borrower’s and the surety’s present financial circumstances, including their present indebtedness and financial facilities available to them discussed at 2(b)(iv) above;

(d) to ascertain whether the surety wishes to negotiate with the bank (eg to re-prioritise the order in which the bank may call upon securities and/or to fix the upper limit of the surety’s exposure at a lower level) and, if so, whether (s)he wishes to do so directly with the bank or with the bank through the solicitor; and

(e) to verify whether the surety wishes to proceed and, if so, to get the surety’s authority to write to the bank to confirm the explanation the solicitor gave the surety.

Before advising the surety, the solicitor should get any information needed from the bank (if missing from the bank’s instructions).

If the above requirements, are complied with, the bank can accept, rely upon and, if need be, enforce the surety’s security and/or guarantee.

Where the solicitor has been properly retained, the bank can assume that the solicitor has done the job properly.

If the solicitor’s advice is poor that is a matter between the surety and the solicitor.

However, if the bank ought to have realised from facts known to it that the surety has not received the appropriate advice, Etridge says any bank, proceding with the security, would do so at its own risk.

A lender might lose the benefit of security obtained in good faith, if the lender ought to have known that the surety’s concurrence to it had been got by a third party’s misconduct (more often than not the borrower’s).

A bank is put on inquiry whenever a wife offers to stand surety for her husband’s debts as (1) the transaction may well not be to the wife’s financial advantage and (2) such transactions carry a substantial risk of the husband has committing a legal or equitable wrong in getting the wife to stand surety, which may entitle the wife to set aside the transaction.

More generally, a bank is put on inquiry where (1) the transaction is not on its face to the surety’s financial advantage and (2) the relationship between the borrower and the surety causes a substantial risk that the borrower could and did exert undue influence in getting the surety to provide a guarantee or security.

The surety must therefore inform the bank of the chosen solicitor’s identity. There has to be a balance between independence on the one hand and practicality and avoidance of unnecessary financial outlay on the other.

In the High Court case of HSBC Bank Plc v Brown [2015] the court looked behind the solicitor’s certificate and found that he had failed to take any of the steps and to give the core minimum advice specified in Etridge. So the bank’s claim for possession was dismissed and the mortgage was declared unenforceable.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Land Registry Compensation applied despite rightful owner’s occupation

Is the proprietor of a forged registered mortgage entitled to an indemnity payment under Schedule 8 to the Land Registration Act 2002 (“LRA 2002”) where the registered proprietor of the property was in actual occupation of it at the date of the mortgage?

That was the issue in the Court of Appeal case of Swift 1st Ltd v The Chief Land Registrar [2015] .

The registered proprietor of the property had the right to seek rectification (now alteration) of the register on the ground that the mortgage was forged.

This was an “overriding interest” by virtue of their occupation and therefore took precedence over the registration of the forged mortgage at the Land Registry.

Paragraph 1(2)(b) of Schedule 8 of LRA 2002 applied where the overriding interest enforced against the registered title consists of a right to seek alteration of the Land Register.

However the fact remained that the registered proprietor of the mortgage would have suffered loss because the Land Register would have been altered to remove the mortgage as an incumbrance against the property.

The court said the fact the mortgage had been registered in the first place had conferred substantive rights on the proprietor of the mortgage although it had been forged.

So it’s loss was to be considered prejudicial despite the fact that the mortgage had of itself been void for forgery.

The court therefore supported the lender’s claim for compensation against the Land Registry.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Lenders had priority over Vendors in “sale and lease back” deals

Homeowners have agreed sale-and-leasebacks deals with investors to overcome debts.

In Scott-v-Southern Pacific Mortgages Ltd (2014), properties were sold to buy to let investors on the understanding the homeowners could remain as the tenants after the sales were completed.

However the sale contracts made no reference to the lease-backs to the sellers.

Some of those landlords had mortgages and failed to maintain mortgage payments.

The lenders were not told about the lease-backs to the sellers. They were informed that the properties were being bought with vacant possession. So they had not consented to the lease-backs.

Did those mortgages take priority over the agreements between the buyers and sellers or were the lenders bound by the agreed lease-back arrangements?

The sellers said they had overriding interests in the houses based on the promised lease-backs which were protected by them being in actual occupation when the sales were completed.

The Supreme Court said the rule that a buyer becomes the equitable owner of the property sold on exchange of contracts “applies only as between the parties to the contract and cannot be extended so as to affect the interests of others” i.e the lenders.

Accordingly the court were unanimous that exchange of contracts had not prior to completion empowered the buyers to confer equitable proprietary rights on the sellers capable of taking priority over the lenders.

So all the sellers had were personal claims against the buyers.

The acquisition of the houses may have been a vital precursor to a mortgage but where a property buyer needs a loan to finance a purchase, the purchase and mortgage form a seamless whole because the buyer would never have got the property without the loan.

The sellers’ claims against the buyers changed from being purely personal claims to being proprietary claims against the properties, capable of binding third parties, when the buyers completed their purchases from them and acquired the legal estates in the houses, but by then it was too late for the sellers to get priority over the mortgages taken by the lenders as an integral part of the house purchase completions.

The decision has important implications for other property transactions where the priority of derivative interests depends on the person granting them already having the legal estate in the property at the key time. The transactions potentially affected include commercial sales and lease-backs.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.