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Mortgages.

The editor of this section of the site is Nigel Clayton of Kings Chambers, Leeds and Manchester. Nigel also maintains the specialist website dealing with mortgages at www.legalmortgage.co.uk

There are a number of recent cases, dealing with equitable exoneration, disclosure of conveyancing files, forged mortgages - rectification of register and indemnity, sale at undervalue, surplus of proceeds of sale.


Conveyancing

Solicitors action for breach of trust

See Property Transactions section.


Co-owners

Equitable exoneration

Day v Shaw
[2014] EWHC 36 (Ch)

Summary

A co-owner who mortgaged her interest in a jointly owned property as security for the debt of the other co-owner was entitled to be equitably exonerated out of his interest in the net proceeds of sale.

Facts

Mr & Mrs S were the joint freehold owners of a property which was charged to a lender (L). The property was sold and L was paid off. The net proceeds were held on deposit pursuant to a court order pending the determination of Mrs S’s claim that she was entitled to be indemnified by Mr S in respect of her liability to L and was thus entitled to equitable exoneration with the result that the debt to L should be paid out of his share first.

Issues

Whether on the facts Mrs S had entered into the mortgage as a surety and if so whether and upon what terms she was entitled to equitable exoneration.

Decision

On the facts, the mortgage secured a guarantee liability for which Mr & Mrs S as mortgagors were liable as sub-sureties, with the principal liability for the debt falling upon Mr S and another party as co-sureties. The Court held that therefore Mr & Mrs S as mortgagors were entitled to be indemnified by Mr S and the other party.

In reality Mrs S was entitled to be indemnified by Mr S in relation to the debt owed to L. This gave rise to a proprietary right binding upon Mr S’s share in the property.

Comment

In a co-ownership situation, equitable exoneration enables one co-owner (typi ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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