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Published: Wed, 07 Mar 2018
Barclays Bank Ltd v Bird  Ch 274
Equitable right of lender to possession trumps deserted wife’s right of possession
An equitable charge was created over the property of Mr Bird. It contained a clause whereby the plaintiff obtained an irrevocable power of attorney to execute a legal mortgage. Mr Bird deserted his wife and she obtained a court order allowing her to reside in the house. Mr Bird was declared bankrupt and the plaintiff executed a legal charge on the property and claimed possession.
Mrs Bird resisted the plaintiff’s claim to possession on the basis that on the date that Mr Bird deserted her, the plaintiff had only an equitable mortgage and not a legal mortgage over the property. She also argued that the execution of the legal charge contravened the court order which she had obtained to allow her to reside in the house. The order provided that the plaintiff should take no steps whatsoever to evict Mrs Bird and her children.
The plaintiff was entitled to raise a summons for possession. There was no legal justification for the view that the bank cannot have possession because of Mrs Bird’s privilege. The only limit on an equitable mortgagee, such as the plaintiff, is that it has no right to possession until the court provides it. The plaintiff’s equity predated Mrs Bird’s equity and therefore it took precedence. The plaintiff had an absolute right to do what it did and there was no infraction of the court order obtained by Mrs Bird. The plaintiff, an equitable mortgagee under a power of attorney, were in as good a position as a mortgagee under a legal mortgage when it came to seeking a possession order from the court.
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