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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 two cases this month:
  • The register would be altered to remove the effect of a forged transfer and a new mortgage.
  • The doctrine of marshalling applied in favour of a lender with security over one property as against a bank with security over the same property and a second property.

Alteration of land register

Power to remove mortgage

Sharma v Santander UK Plc
[2016] EWLandRA 2015_0451

Summary

The register would be altered under the provisions of the Land Registration Act 2002 to remove the effect of a forged transfer, and consequentially a mortgage.

Relevant statutory provisions

The Land Registration Act 2002, Schedule 4, para 5 provides:
    “The registrar may alter the register for the purpose of—
    (a) correcting a mistake,
    …”

    The relevant parts of Para 6 provide:
    (2) No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor's consent in relation to land in his possession unless—

    (a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or
    (b) it would for any other reason be unjust for the alteration not to be made.

    (3) If on an application for alteration under paragraph 5 the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration.”
Facts

Following separation, the former jointly owned matrimonial home which was subject to a mortgage in favour of a lender (M), was transferred into the husband’s sole name and he also mortgaged it to a lender (L). The wife applied to the Land Registry to set the transfer aside on the ground of forgery and for consequential alteration of the register including the removal ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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