''Birmingham Midshires Mortgage Services Limited v Sabherwal''

000 Triple zero, Triple Zero, Zero Zero Zero, Triple 0, Triple-0, 000, or 0-0-0 may refer to: * 000 (emergency telephone number), the Australian emergency telephone number * "Triple Zero", a song by AFI (band), AFI from ''Shut Your Mouth and Open Your ...

80 P&CR 256 is an

English property law English property law refers to the law of acquisition, sharing and protection of valuable assets in England and Wales. While part of the United Kingdom, many elements of Scots property law are different. In England, property law encompasses four ...

case, concerning the principles of

equitable interest An equitable interest is an "interest held by virtue of an equitable title (a title that indicates a beneficial interest in property and that gives the holder the right to acquire formal legal title) or claimed on equitable grounds, such as the int ...

overriding interest Overriding interest is an English land law concept. The general rule in registered conveyancing is that all interests and rights over a piece of land have to be written on the register entry for that land. Otherwise, when anyone buys that piece of ...

s, and overreaching interests. It is one of many cases where the commercial rights mortgage lenders need to do business clash with the rights of innocent parties facing the loss of their home.

Facts

Mrs Sabherwal was facing eviction from her home, bought in the names of her two sons in 1987 with family assets and a mortgage. It was occupied by Mrs Sabherwal, her sons, and their wives. In 1990 the sons took out a loan, secured on the house, with the mortgage company; this loan replaced an existing mortgage but was primarily taken in order to finance family business interests. In 1993 the sons defaulted on the repayments. Possession proceedings soon began. Mrs Sabherwal claimed to have

s; the mortgage company claimed to have overreached them. The mortgage company won the original case. The three key issues were * Did Mrs Sabherwal have an equitable interest? * Was this an overriding interest? * Did the mortgage company successfully overreach this interest?

Judgment

Mrs Sabherwal was found to have an equitable interest in the property. Lord Justice Walker went to some length in his judgment to detail the family financial history, which showed that Mrs Sabherwal had contributed to the purchase price of the house (although the question of by how much was not considered). The court also accepted that she was in actual occupation. These being the case, the court appears to conclude that Mrs Sabherwal had an overriding interest. Counsel for Mrs Sabherwal attacked the claim that the interest was overreached by arguing that the

Trusts of Land and Appointment of Trustees Act 1996 The Trusts of Land and Appointment of Trustees Act 1996c 47, usually called "TLATA" or "TOLATA", is an Act of Parliament of the United Kingdom, which altered the law in relation to trusts of land in England, Wales, Scotland and Northern Ireland. B ...

altered the common law precedent, and by arguing that his client’s human rights (specifically the right to respect for one’s home in Article 8 of the

European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...

) had been breached. Walker LJ found that neither the 1996 Act or the implementing 1998 Human Rights Act were in force at the material time, and furthermore even if they were neither would apply. Despite searching at length for a reason why he should not, Walker LJ ultimately concluded that the precedent in ''

City of London Building Society v Flegg is an English land law case decided in the House of Lords on the relationship between potential overriding interests and the concept of overreaching. The case was controversial because it construed the statutory framework so that interests w ...

'' should apply and Mrs Sabherwal’s interest was perfectly capable of being overreached and as the respondent had loaned capital money to two individuals – the sons – they had succeeded in overreaching her interest.

Notes

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References

* Court of Appeal (England and Wales) cases 1999 in United Kingdom case law English property case law