Land law Assignment Example | Topics and Well Written Essays - 3000 words

Land law - Assignment Example 110,000 without explicitly stating that this was a new mortgage leaving Ben to believe that this was some form of mortgage repackaging. Ali used her accountant, Devi, to talk Ben through the mortgage papers. Devi however made it clear that Ali’s job is dependent upon his cooperation. Ali’s investment then failed and made Ben and her to default on their repayments. Their banker, Cantander Bank, initiated the move to repossess the property so as to recover the mortgage amount but Ben is unaware that he signed a second mortgage and is surprised by the move. Repossession is a legal process where an owner’s right to own a property is terminated usually because he or she has defaulted in payments1. Repossession of a mortgaged property usually occurs when the borrower defaults on the regular payment for sometime as stipulated by the terms and conditions of the lender, in this case Cantander Bank. Following the circumstances involved in this case, the bank has a right to recover the owed amount by repossessing and selling Valiant Villa. It is a straightforward case that the two, being joint account holders, make decisions jointly. The fact that the signatures of both partners were appended in the mortgage is enough evidence that each partner consented. It is not up to the bank to determine how the consent was obtained as this is a private, or even a homely, matter2. The bank can point out that it was Ben’s negligence and/or mistake that cost them their family home. A mistake is an erroneous belief that leads one to believe certain facts are true during contracting3. In this case Ben believed that they were repackaging the first mortgage of ?125,000. The law provides that a contract cannot be rendered voidable because it was caused by a unilateral mistake of this nature. Furthermore, Ben acted negligently when he signed the papers without exercising due diligence to know what he was really signing. Negligence is defined as the failure to exer cise care where an otherwise prudent person would when in a like circumstance4. While the real relationship between Ben and Ali is unclear, it is evident that there is mutual trust. The fact that they hold a joint account also shows the amount of trust and confidentiality between them. However, in matters concerning mortgaging a family home it is expected that one will take due care to read and understand the seriousness and the nature of implication of contract being signed. Ben did not do that, neither did he seek independent legal counsel if he did not understand. The bank therefore reserve the right to reposes the property, sell it and recover the amounts loaned to Ben and Ali. However, Ben can use undue influence as his defence and prevent Valiant Villa from being repossessed by Cantander Bank. This is because the courts of law are courts of conscience, they not only apply the law to the letter but also apply them in such a way that justice is served as in the case of Royal Ban k of Scotland v. Etridge 5. The courts have the obligation to determine how consent was obtained. The manner in which the intention to enter the contract was secured is material in cases of repossession especially of a family home. If the court finds out that the consent was obtained through unacceptable or improper means then the court should not allow such a transaction to stand6. In this case, Ben’s can use the undue influence defence by arguing that his consent was not secured in a proper manner. Since Ali knew that Ben did not approve of her