This scenario involves the mortgage of the property by the joint tenants and a subsequent second mortgage on the property for the purpose of one party (Ali), where the other party (Ben) is unaware that he has signed a second mortgage deed.
The definition of land is usually the starting point for understanding the land law. Traditionally, the definition of land is the actual land, and the things that are attached to the land stretching down to the centre of the earth and rising up to the sky.
A mortgage is a transaction by which a charge is created on a property as a security for a loan taken by the mortgagor from the mortgagee. The property is used as a security for the mortgagee. As such, mortgage gives rights to both the mortgagor and the mortgagee.
The issue in this scenario relates to the interest of Sylvie in the property, Dove Cottage, that is about to be sold due to bankruptcy of the trustee, Leon. The property was brought by Sylvie and Leon in joint names and registered in joint names. Sylvie and Leon were not married but they have a minor daughter. They no longer live together and the property is in the actual possession of Sylvie.
The first question that arises in the case is the nature of ownership in the property. As A, B, C and D have bought the house by contributing to the purchase price equally, they have become joint tenants as per the decision in Malayan Credit Ltd v Jack Chia-MPH Ltd. In that case, the court has held that where parties contribute equally to the purchase of the property,