To what extent does the law strike a fair balance between the interests of the mortgagor and those of the mortgagee in respect of:

1. ascertaining the validity of clauses within a mortgage; and
2. enforcing the mortgagee's remedies of possession and sale?

An answer to this question may first require you to consider the nature of a mortgage as being both a contract between the mortgagor and the mortgagee and a proprietary interest. Obligations, rights and remedies thus arise from both a contractual and proprietary basis. You could give examples. You may also wish to reflect upon the fundamental purpose of a mortgage from the perspective of both the mortgagee and the mortgagor. In so doing, potential conflicts of interest between the parties may be made visible and the need to strike a balance becomes apparent.

Specific attention can then be drawn to how the balance is achieved, if indeed you consider it is, in relation to specific clauses that appear within a mortgage. For example, you may wish to consider clauses attempting to postpone the ability to redeem. Analyse the motivations for inclusion of such clauses by the mortgagee. To what extent should/are they upheld? Has a correct balance been achieved? Such discussion will incorporate detailed analysis of case law (for example Fairclough v Swan Brewery Co Ltd (1912); Knightsbridge Estates Trust Ltd v Byrne (1939)).

Attention can then turn to the remedies of possession and sale. Analyse the powers of a mortgagee to exercise such remedies. What limitations have been put into place, by both statute and equity, in respect of their availability and operation? For example, in respect of the remedy of possession, you may wish to consider s 36 Administration of Justice Act 1970 (as amended by s 8 AJA 1973). In what way does this legislation curtail a mortgagee's right to seek possession? Why has such curtailment been put in place and does it balance the needs of the mortgagee and the mortgagor appropriately? Consider the November 2008 Government pre action protocol here. In respect of the remedy of sale, perhaps consideration could be given of the mortgagee's duties when selling. Have these duties been set at an appropriate level to achieve a balance between the mortgagee's and mortgagor's interests? Analysis of the impact of human rights legislation may also prove useful here with consideration of such cases as Horsham Properties Group Ltd v Clark (2009); Harrow LBC v Qazi (2004); Manchester CC v Pinnock (2010).

Draw appropriate conclusions.