One of the ways in which HJK will
be able to get the money from Brian is by possessing his property and then
claiming the money back. Similarly, in Birmingham
the mortgagor did not repay the sum demanded by the mortgagee. Subsequently,
the mortgagee sold the property at an auction and claimed the money. It was
held in this case, that every mortgage has an implied term stating that a
mortgagee cannot reclaim a property unless there has been a default on the
loan. Relating it to Brian’s case, Brian failed to pay the mortgage for three
months therefore increasing the possibilities of HJK being able to possess his property.
Moreover, it was held in Four-Maids v Dudley2 by Harman J. that ‘the
mortgagee may go into possession before the ink is dry on the mortgage unless
there is something in the contract…whereby he has contracted himself out of
From the facts given, there is no implication that the contract between Brian
and HJK suggests that HJK cannot reclaim the property. Based on the precedence
given, HJK has the right to possess Brian’s home as a manner of claiming the
money back. Such a right can be exercised by obtaining a court order or
self-help as per Ropaigealach v Barclay Bank4. However, in the same case
it states that ‘where a mortgagee does enter into possession, he must do so
peaceably so as not to be liable to prosecution’5 under section 6 of the
Criminal Law Act 1977. If HJK does decide to obtain a court order of
possession, the court has the power to refuse the right under section 36 of the
Administration of Justice Act 1970 if the premises include a dwelling-house. 6 Considering that Brian’s
property falls under the category of a dwelling-house, it may be that HJK would
not be able to claim the right to possession.
1 Birmingham v Caunt 1962 Ch
2 Four-Maids v Dudley 1957
3 ibid 320.
4 Ropaigealach v Barclays 2000
5 ibid 265.
6 Alison Clarke and Paul Kohler, Property
Law Commentary and Materials (Cambridge University Press 2005) 686.