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land law mortgage question needs help,pls

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    Hi people, good luck with your revision.

    I am not lazy. I have done lots of research, but still have no ideas on one issue.
    I really need some pointers. Thanks in advance!

    Gillian is the sole registered proprietor of a house in which, until recently, she shared with her husband, peter and their son,william. The house is subject to a mortgage of £200000 in favour of Freshco Bank. Six months ago, Gillan stopped making any mortgage repayment, as she was planning to emigrate to the USA to live with her new lover. She left last month, and the bank seeks possession.

    Peter is defending the action. He is arguing in the alternative that he has an interest in the house binding on Freshco. If this arguments succeeds, advise Frescho on what further action it can take to recover the money
    ......And the question goes on, which is basically about the power of sale and possession of the bank I find it easy.

    The issue I am struggling is what interests does peter have.

    I was thinking resulting trust or constructive trust. But the the question is silent on this. Assuming he has, is it all about the S14, S15 of TOLALA?

    Or it is about the undue influence? But Gillian is the sole legal owner and Peter moves in after the purchase of the house, so it is unlikely that he is the surety of mortgage and argue undue influence.

    I really go crazy about land law, exam in one week
    Thanks for any help or ideas!!
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    I was thinking resulting trust or constructive trust. But the the question is silent on this
    Since Peter is not a co-owner in law he has to mount his action as a co-owner in equity. Peter has to establish that Gillian has held the property in trust for herself and Peter, and a trust is imposed as a result of inequitable conduct. Lord Diplock in Gissing v Gissing says "whenever the trustee has so conducted himself that it would be inequitable to deny to the (beneficiary) a beneficial inbterest in the land acquired. Peter is the husband afterall.
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    (Original post by ktwolves)
    I was thinking resulting trust or constructive trust. But the the question is silent on this
    Since Peter is not a co-owner in law he has to mount his action as a co-owner in equity. Peter has to establish that Gillian has held the property in trust for herself and Peter, and a trust is imposed as a result of inequitable conduct. Lord Diplock in Gissing v Gissing says "whenever the trustee has so conducted himself that it would be inequitable to deny to the (beneficiary) a beneficial inbterest in the land acquired. Peter is the husband afterall.
    Thanks for your help.
    However, I am thinking in order to have an interest binding on the bank, he needs apart from establishing that he has an interest in the house, but also he was in actual occupation at the time of disposition(Abbey building Society;Thomson v Foy).
    Given in the question that he moved in recently, it is not likely that he has an interest binding on the bank.

    And, say if he succeeds, what the bank can do to recover the money? is s14 TOLATA 1996 appicable here?

    I think I am so messed up about this
    Help pls
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    (Original post by manjeff)
    Thanks for your help.
    However, I am thinking in order to have an interest binding on the bank, he needs apart from establishing that he has an interest in the house, but also he was in actual occupation at the time of disposition(Abbey building Society;Thomson v Foy).
    Given in the question that he moved in recently, it is not likely that he has an interest binding on the bank.

    And, say if he succeeds, what the bank can do to recover the money? is s14 TOLATA 1996 appicable here?

    I think I am so messed up about this
    Help pls
    The way you structure your answer is like this... You begin by While legal intgerest binds the world, equitable interests will only bind purchaser with notice.... this was further refined to the extent that interest of occupier subject to purchaser making reasonable discovery etc...If the bank has made inspection, bank may not be bound, are such facts in the question?

    I think I am so messed up about this
    There are 2 separate parts actually 1. Establishing the interests 2. Then, how it might bind the bank.

    In this question, you are also saying if Peter can succed in preventing sales, that is odd!! I don't know how he can achieve that.

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Updated: May 14, 2012
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