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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Birmingham Midshires Mortgage Services Ltd. v Sabherwal  EWCA Civ 3042 (17 December 1999)
Cite as:  EWCA Civ 3042, (1999) 80 P & CR 256
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(MR RECORDER ISAACS QC)
B e f o r e :
MR JUSTICE ALLIOTT
|BIRMINGHAM MIDSHIRES MORTGAGE SERVICES LIMITED|
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
MR N JONES QC and MR P J KIRBY (Instructed by Eversheds, Fitzalan House, Fitzalan Road, Cardiff) appeared on behalf of the Respondent
Crown Copyright ©
"It is your responsibility to ensure that no one has or will obtain rights of occupation or any interest whatsoever in the proposed security in priority to or otherwise preventing the free exercise of the Company's rights as mortgagee of the property. A Form of Consent must be obtained from all adult occupiers of the property (other than the borrowers) and placed with the Title Deeds."
"Before the documentation is executed the contents should be explained and wherever possible, signatures should be witnessed by a solicitor."
"NOW I/We the undersigned being a person(s) who is/are in or may go into actual occupation of the Property hereby consent to the creation of a mortgage or charge over the Property to secure the advance (and such further advances) and undertake to the Company that such rights if any as I/we may have by way of overriding interest or otherwise in or over the Property shall be postponed and made subject to the rights and interests of the Company under its mortgage or charge.
I/We confirm that the effect of this form has been explained and that I/we have been advised of my/our right to have independent legal advice on its effect."
"All this seems to show that there may well be rights, of an equitable character, outside the provisions as to registration and which are incapable of being overreached."
"In fact the only examples of such equities likely to occur are commercial (as opposed to family) interests, which it is absurd to speak of overreaching. Two instances are an equitable right of way which is yet not an equitable easement, and an equitable right of entry to secure performance of a covenant, and there are probably others. To overreach such interests is to destroy them ..."
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with law and is necessary in a democratic society ... for the protection of the rights and freedoms of others."
ORDER: Appeal dismissed with costs, not to be enforced without the leave of the court. Stay on possession lifted. Permission to appeal to the House of Lords refused.
(Order not part of approved judgment)