‘A recent decision by Master Matthews in Menalou v Bank of Cyprus UK Limited [2016] EWHC 2656 (Ch), in a characteristically detailed and interesting judgment, reaffirms the author’s long-held view that the appropriate procedure for the a claimant, claiming to be subrogated to the unpaid vendor’s lien, to use is to apply for an order for sale and vesting/appointment orders under s90 Law of Property Act 1925. Section 90 reads as follows:
“90.— Realisation of equitable charges by the court.
(1) Where an order for sale is made by the court in reference to an equitable mortgage on land (not secured by a legal term of years absolute or by a charge by way of legal mortgage) the court may, in favour of a purchaser, make a vesting order conveying the land or may appoint a person to convey the land or create and vest in the mortgagee a legal term of years absolute to enable him to carry out the sale, as the case may require, in like manner as if the mortgage had been created by deed by way of legal mortgage pursuant to this Act, but without prejudice to any incumbrance having priority to the equitable mortgage unless the incumbrancer consents to the sale…”’
Hardwicke Chambers, 5th January 2017
Source: www.hardwicke.co.uk
