Land - Trusts & Coownership - Cases (5)

Implied waiver
Paddington BS v Mendelsohn (1985)
- Doctrine of implied waiver (implied authorization through active support of mortgage, bank will take priority over beneficiary’s beneficial interest)
- One has waived one’s right as against the building society if one must have known of its charge over the property and have impliedly consented to its taking priority over one’s interest

*Abbey National BS v Cann
- Registration under LRA 1925; date for determining overriding interests; whether the relevant date for determining ‘actual occupation’ for the purposes of s70(1)(g) was the date of completion of the transaction or the later date of its registration
- This is a landmark decision on s70(1)(g) LRA 1925. Priori to their Lordship’s decision there was uncertainty as to the date when a claimant had to be in occupation by – the date of completion of the transaction or the later date of registration – in order to establish such as overriding interest. The case establishes that the relevant date for determining the existence of a s70(1)(g) overriding interest is the date of registration, but the relevant date for determining whether the claimant is in actual occupation for the purposes of para (g) is the date of completion of the transaction. The fact that a claimant must be in occupation before or simultaneously with the completion of the transaction (e.g. sale & mortgage) means that the changes of successfully establishing a s70(1)(g) overriding interest have lessened as a result of this decision. However, it will still be possible to claim s70(1)(g) overriding interest in the following situation: legal title to property in husband’s name alone, wife has a beneficial interest in the property and there is no mortgage. Subsequently, the husband takes out a mortgage and if the lending institution does not make inquiry of the wife it would in such circumstances be bound by the wife’s para (g) overriding interest (i.e. in such a situation the wife is in occupation before completion of the mortgage transaction.)
- Extension of Mendelson: beneficiary should have known mortgage is necessary, thus bank takes priority

Skipton BS v Clayton (1993)
- s149(6) was applied to an agreement which called itself a ‘licence’ but which the counrt found in reality to be a lease for life for a premium
- With premium having been paid, court orders a lease for life

Equity & Home Loans v Prestige
- 2nd mortgage pays off 1st mortgage, when 1st mortgage takes priority, 2nd mortgage take priority as well up to the unpaid sum of 1st mortgage

TLATA 1996
- s12 & 13: occupational expense
- s14 & 15: on sale

AJA 1970
- s36

LPA 1925
- s36(2)