is not one of confidence, and that the presumption of undue influence does not apply. In National Westminster Bank plc v Morgan, the respondent’s husband’s business was in deep financial trouble and he was unable to keep up payments due under the mortgage on the family home. The bank agreed to refinance the debt in order to avoid threatened foreclosure by the original mortgagees. The bank took a legal charge on the property. The respondent only agreed to this after having been assured by the bank that the arrangement covered no more than the amount of the original loan. In fact, this assurance was inaccurate, as the mortgage extended to cover all of the husband’s liabilities to the bank. When the husband died, the question arose whether the mortgage could be set aside on the ground of undue influence. The House of Lords held that the bank had not crossed the line which distinguished a normal business relationship from one in which the bank was able to exert influence over their customer. In particular, the fact that the arrangement was not to the manifest disadvantage of the respondent was considered to be a key factor in the decision: National Westminster Bank plc v Morgan [1985] 1 AC 686, p 702

1995 ◽  
pp. 427-430
Keyword(s):  
Business Relationship ◽  
Undue Influence ◽  
House Of Lords ◽  
The Family ◽  
Key Factor ◽  
Family Home

17. Informal trusts of land

2019 ◽  
pp. 397-429
Author(s):  
Gary Watt
Keyword(s):  
Practical Significance ◽  
Legal Knowledge ◽  
House Of Lords ◽  
Key Points ◽  
The Social ◽  
The Family ◽  
Family Land ◽  
Family Home ◽  
Trust Law ◽  
The Relationship

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. The trust law that applies to family land might not be applicable to other types of land. Resulting trusts present a particular challenge in this regard. Although the doctrines of resulting trust have long been settled in the law of trusts, they have recently been questioned in the context of the family home. This chapter focuses on informal trusts of land and the social reasons why they are recognised, first looking at the problem of informality before turning to the different kinds of informal trusts of land. It also examines whether facts give rise to a resulting trust or a constructive trust, the practical significance of the distinction between constructive and resulting trusts of land, the relationship between proprietary estoppel and constructive trust, express agreement plus detrimental reliance, and the decision of the House of Lords in Stack v Dowden. The chapter concludes by considering some of the problems addressed by, and caused by, the operation of informal trusts in the context of cohabitation.

27. Protection of the Borrower

2021 ◽  
pp. 1045-1094
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Common Law ◽  
Mortgage Market ◽  
Market Regulation ◽  
Control Mechanisms ◽  
Undue Influence ◽  
Residential Mortgage ◽  
The Family ◽  
The Common ◽  
Family Home ◽  
Statutory Control

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter reviews the loan contract and the controls that the law has imposed to protect the borrower. The level of protection differs according to the nature of the borrower and the type of security transaction. Market regulation of the residential mortgage market has increased protection for domestic borrowers. Vitiating factors, particularly undue influence, have impacted upon the creation of collateral mortgages of the family home to secure commercial borrowing. Equitable protection has been provided by controls against penalties and oppressive and unconscionable terms, as well as by protection of the borrower’s equity of redemption. Statutory consumer protection now offers more effective protection to domestic borrowers. The common law, equitable, and statutory control mechanisms are then described and applied to demonstrate the protection they afford against particular mortgage terms, for instance to control rates of interest and other costs associated with borrowing.

Combating the mortgagee's right to possession: new hope for the mortgagor in chains?

Legal Studies ◽  
1998 ◽  
Vol 18 (3) ◽  
pp. 279-293 ◽  
Author(s):  
Martin Dixon
Keyword(s):  
Undue Influence ◽  
Building Society ◽  
Dwelling House ◽  
The Family ◽  
Family Home

The need for certainty about the scope of the court's jurisdiction to interfere with a mortgagee's right to possession of a dwelling house following default by the mortgagor needs little emphasis. Much is at stake, and unless the mortgagor can plead some substantive defence such as undue influence, the mortgagor faces losing what is usually the family home. Until relatively recently, this certainty has existed and the extent of the court's jurisdiction to control or deny a mortgagee's possessory rights has not been in issue, the focus being instead on the narrower question of how the court's recognised powers should be exercised. However, a number of recent decisions, including Cheltenham and Gloucester plc v Krausz; Cheltenham and Gloucester plc v Booker and Bristol & West Building Society v Ellis and Ellis, have prompted more fundamental questions.

17. Informal trusts of land

2021 ◽  
pp. 394-425
Author(s):  
Gary Watt
Keyword(s):  
Practical Significance ◽  
Legal Knowledge ◽  
House Of Lords ◽  
Key Points ◽  
The Social ◽  
The Family ◽  
Family Land ◽  
Family Home ◽  
Trust Law ◽  
The Relationship

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. The trust law that applies to family land might not be applicable to other types of land. Resulting trusts present a particular challenge in this regard. Although the doctrines of resulting trust have long been settled in the law of trusts, they have recently been questioned in the context of the family home. This chapter focuses on informal trusts of land and the social reasons why they are recognised, first looking at the problem of informality before turning to the different kinds of informal trusts of land. It also examines whether facts give rise to a resulting trust or a constructive trust, the practical significance of the distinction between constructive and resulting trusts of land, the relationship between proprietary estoppel and constructive trust, express agreement plus detrimental reliance, and the decision of the House of Lords in Stack v Dowden. The chapter concludes by considering some of the problems addressed by, and caused by, the operation of informal trusts in the context of cohabitation.

27. Protection of the Borrower

Land Law ◽  
2018 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Common Law ◽  
Mortgage Market ◽  
Market Regulation ◽  
Control Mechanisms ◽  
Undue Influence ◽  
Residential Mortgage ◽  
The Family ◽  
The Common ◽  
Family Home ◽  
Statutory Control

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter reviews the loan contract and the controls that the law has imposed to protect the borrower. The level of protection differs according to the nature of the borrower and the type of security transaction. Market regulation of the residential mortgage market has increased protection for domestic borrowers. Vitiating factors, particularly undue influence, have impacted upon the creation of collateral mortgages of the family home to secure commercial borrowing. Equitable protection has been provided by controls against penalties, and oppressive and unconscionable terms, as well as by protection of the borrower’s equity of redemption. Statutory consumer protection now offers more effective protection to domestic borrowers. The common law, equitable, and statutory control mechanisms are then described and applied to demonstrate the protection they afford against particular mortgage term, for instance to control rates of interest and other costs associated with borrowing.

The things we do for love: detrimental reliance in the family home

Legal Studies ◽  
1996 ◽  
Vol 16 (2) ◽  
pp. 218-231 ◽  
Author(s):  
Anna Lawson
Keyword(s):  
Academic Literature ◽  
House Of Lords ◽  
The Family ◽  
Family Home

The rules governing the acquisition of beneficial interests in family homes have generated a great deal of academic literature since their restatement, and apparent clarification, by the House of Lords in Lloyds Bank plc v Rosset. In what has become an all too familiar passage, Lord Bridge outlined the two methods by which such an interest can be acquired in the absence of writing. For a claimant to succeed under the first of these (the only one with which this article will be concerned), the court must be satisfied that there has been: (a) an ‘agreement, arrangement or understanding’ between the claimant and the legal owner to share the beneficial interest, evidenced by oral discussions between them; and (b) that the claimant has acted to her detriment, or significantly altered her position, in reliance on the agreement. If these requirements are satisfied the claimant will obtain an interest, according to Lord Bridge, by way of constructive trust or proprietary estoppel.

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