Facts
- Mrs Shaire and Mr Fox jointly owned (in law) a house as tenants in common (equity), with shares 25% and 75% respectively
- Mr Fox mortgages his 25% share, and defaulted on payments
- His mortgagee (bank), the Mortgage Corporation, sought an order so sale to allow them to recoup their losses
Issue
- Could a sale, under section 14 of the Trusts of Land and Appointment of Trustees Act (TOLATA) 1996, be ordered?
Decision
- No
Reasoning
- The 1996 Act replaced the trust for sale with the trust of land, and clearly altered the factors which were to be taken into account before a sale was ordered (s 15 TOLATA)
- There was no longer a presumption of sale, and the courts now have a much wider discretion in which to protect families from mortgagees
- Instead, Mrs Shaire was to take over the payments of interest on the loan in return for a sale not being ordered – that way the mortgagee would not be kept out of its money indefinitely
