Law Report: No repossession against one only of married couple

LAW REPORT v 14 February 1997

Albany Home Loans Ltd v Massey; Court of Appeal (Lord Justice Aldous, Lord Justice Schiemann) 12 February 1997

Where joint mortgagors of a property, such as a husband and wife, fell into arrears and the mortgagee sought to repossess the property but was only granted possession against one of the mortgagors, then, pending determination of possession proceedings against the other mortgagor, the court should not enforce the possession order against the first.

The Court of Appeal dismissed an appeal by the defendant, Frank Reginald Massey, against a decision of Judge Hammond, sitting in Stockport County Court on 4 April 1995, upholding a possession order granted to the plaintiff, Albany Home Loans Ltd.

Martyn Birkin (McCormicks, Harrogate) for the defendant; Simon Edwards (BMD Geiringer, Potters Bar) for the plaintiff.

Lord Justice Schiemann said the defendant and his wife, Jacqueline Joyce Massey, were the joint owners and mortgagors of their home. They fell into arrears to a substantial extent and the plaintiff mortgagee sought possession.

The defendant claimed that he was only in arrears because of actions taken by associate companies of the plaintiff, by whom he was employed as a mortgage provider and by whom he had been wrongfully dismissed. He said he had a good claim against the associate companies for a sum in excess of what was owing on the mortgage, and that in those circumstances the judge should not make an order for possession against him, or at least not make it enforceable before the hearing of his claim.

The judge decided that even if the defendant were to succeed on his dismissal claim, that would provide no defence to a possession claim by the mortgagee: see Ashley Guarantee plc v Zacaria [1993] 1 WLR 62. He also declined to exercise his powers under section 36 of the Administration of Justice Act 1970 to adjourn the possession proceedings or stay or suspend the execution of the judgment or postpone the delivery of possession. He said the dismissal claim was unlikely to be heard before 1997 and it did not appear that the defendant was "likely to be able within a reasonable period to pay any sums due under the mortgage".

That decision was well within the judge's discretion. However, the defendant pursued a second argument which raised a point of general interest.

The plaintiff had not, as yet, obtained judgment for possession against the wife. It had brought proceedings, but she, relying on Barclays Bank plc v O'Brien [1994] AC 180, contended that the mortgage should be set aside, as against her, on the ground of undue influence.

It was clear that the possession order made by the judge did not bind the wife. Thus the husband had been ordered by the court to leave the matrimonial home in which his wife was entitled to stay. The plaintiff had not in fact sought to enforce the order against the defendant prior to the adjudication of his wife's case, and now offered an undertaking not to do so.

But, although no practical problem arose here, his Lordship saw force in the submission that the judge ought not to have made the order for possession. Its result was that a husband was in breach of the court's order and might be held in contempt of court for remaining in a house in which his wife was entitled to remain and invite whom she pleased.

In such a case, where the ejection of one of two mortgagors was of no benefit to the mortgagee, it would not in general be right to make an order requiring him to leave within the period during which the other mortgagor was in possession, particularly where the two mortgagors were husband and wife.

It could not be said that the court had no power to make such an order; but it ought so to have disposed of the case that the husband was not required to leave until his wife left. That could have been achieved by an undertaking by the mortgagee, such as was now offered, not to enforce the possession order against the defendant until such an order was made and became enforceable against his wife or she left voluntarily; or the court could have ordered an adjournment under its general powers (though not under section 36 of the 1970 Act) with liberty to restore if the wife left the property or a possession order was made against her.

In this case, the right course was to accept the undertaking now offered by the plaintiff and dismiss the appeal.

Paul Magrath, Barrister

Start your day with The Independent, sign up for daily news emails
ebooksAn introduction to the ground rules of British democracy
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Ashdown Group: Human Resources Manager

£28000 - £35000 per annum + Benefits: Ashdown Group: A successful organisation...

Recruitment Genius: Internal Recruiter - Manufacturing

£20000 - £30000 per annum: Recruitment Genius: An Internal Recruiter (manufact...

Ashdown Group: HR Manager (CIPD) - Barking / East Ham - £50-55K

£50000 - £55000 per annum + 25 days holidays & benefits: Ashdown Group: HR Man...

Recruitment Genius: Operations / Project Manager

£40000 - £48000 per annum: Recruitment Genius: This software company specialis...

Day In a Page

Isis profits from destruction of antiquities by selling relics to dealers - and then blowing up the buildings they come from to conceal the evidence of looting

How Isis profits from destruction of antiquities

Robert Fisk on the terrorist group's manipulation of the market to increase the price of artefacts
Labour leadership: Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea

'If we lose touch we’ll end up with two decades of the Tories'

In an exclusive interview, Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea
Tunisia fears its Arab Spring could be reversed as the new regime becomes as intolerant of dissent as its predecessor

The Arab Spring reversed

Tunisian protesters fear that a new law will whitewash corrupt businessmen and officials, but they are finding that the new regime is becoming as intolerant of dissent as its predecessor
King Arthur: Legendary figure was real and lived most of his life in Strathclyde, academic claims

Academic claims King Arthur was real - and reveals where he lived

Dr Andrew Breeze says the legendary figure did exist – but was a general, not a king
Who is Oliver Bonas and how has he captured middle-class hearts?

Who is Oliver Bonas?

It's the first high-street store to pay its staff the living wage, and it saw out the recession in style
Earth has 'lost more than half its trees' since humans first started cutting them down

Axe-wielding Man fells half the world’s trees – leaving us just 422 each

However, the number of trees may be eight times higher than previously thought
60 years of Scalextric: Model cars are now stuffed with as much tech as real ones

60 years of Scalextric

Model cars are now stuffed with as much tech as real ones
Theme parks continue to draw in thrill-seekers despite the risks - so why are we so addicted?

Why are we addicted to theme parks?

Now that Banksy has unveiled his own dystopian version, Christopher Beanland considers the ups and downs of our endless quest for amusement
Tourism in Iran: The country will soon be opening up again after years of isolation

Iran is opening up again to tourists

After years of isolation, Iran is reopening its embassies abroad. Soon, there'll be the chance for the adventurous to holiday there
10 best PS4 games

10 best PS4 games

Can’t wait for the new round of blockbusters due out this autumn? We played through last year’s offering
Transfer window: Ten things we learnt

Ten things we learnt from the transfer window

Record-breaking spending shows FFP restraint no longer applies
Migrant crisis: UN official Philippe Douste-Blazy reveals the harrowing sights he encountered among refugees arriving on Lampedusa

‘Can we really just turn away?’

Dead bodies, men drowning, women miscarrying – a senior UN figure on the horrors he has witnessed among migrants arriving on Lampedusa, and urges politicians not to underestimate our caring nature
Nine of Syria and Iraq's 10 world heritage sites are in danger as Isis ravages centuries of history

Nine of Syria and Iraq's 10 world heritage sites are in danger...

... and not just because of Isis vandalism
Girl on a Plane: An exclusive extract of the novelisation inspired by the 1970 Palestinian fighters hijack

Girl on a Plane

An exclusive extract of the novelisation inspired by the 1970 Palestinian fighters hijack
Why Frederick Forsyth's spying days could spell disaster for today's journalists

Why Frederick Forsyth's spying days could spell disaster for today's journalists

The author of 'The Day of the Jackal' has revealed he spied for MI6 while a foreign correspondent