Land Law
land UNIT 9- LEVEL 6 - LAND LAW SUGGESTED ANSWERS - January 2010 Note to Candidates and Tutors:
The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2010 examinations. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination.
SECTION A
Question 1(a) A mortgage is a charge over land or other property to secure payment of a debt or compliance with some other obligation. Undue influence is some improper pressure falling short of duress. Equity identifies three categories of undue influence (O'Brien/Aboodi). The first (Class 1) requires the claimant to demonstrate actual undue influence. The second and third categories require the claimant to demonstrate a particular type of relationship (in the second category (2A) are listed a number of often fiduciary relationship, ie doctor/patient; but not husband and wife): in the third (2B) the relationship is one of "trust and confidence"). Once the relationship is made out, the burden shifts to the defendant to prove that there was no undue influence. If the undue influence is made out, the claimant is entitled to have the contract/mortgage set aside as against the unduly influencing party. It is rare that that party is the mortgagee. For the charge to be set aside as against the mortgagee on the basis of the undue influence of another party, it is necessary for the claimant to show that the mortgagee had constructive notice of the possibility of undue influence (Compare O’Brien and COBC Mortgages –v- Pitt for the circumstances
The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2010 examinations. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination.
SECTION A
Question 1(a) A mortgage is a charge over land or other property to secure payment of a debt or compliance with some other obligation. Undue influence is some improper pressure falling short of duress. Equity identifies three categories of undue influence (O'Brien/Aboodi). The first (Class 1) requires the claimant to demonstrate actual undue influence. The second and third categories require the claimant to demonstrate a particular type of relationship (in the second category (2A) are listed a number of often fiduciary relationship, ie doctor/patient; but not husband and wife): in the third (2B) the relationship is one of "trust and confidence"). Once the relationship is made out, the burden shifts to the defendant to prove that there was no undue influence. If the undue influence is made out, the claimant is entitled to have the contract/mortgage set aside as against the unduly influencing party. It is rare that that party is the mortgagee. For the charge to be set aside as against the mortgagee on the basis of the undue influence of another party, it is necessary for the claimant to show that the mortgagee had constructive notice of the possibility of undue influence (Compare O’Brien and COBC Mortgages –v- Pitt for the circumstances