First National Securities Ltd v Hegerty

First National Securities Ltd v Hegerty [1985] QB 850

Mortgage – Forged Signature of Wife – Joint Tenants – Severance

Facts

A husband and wife were joint tenants of the matrimonial home.  Unknown to the wife, the husband forged her signature on mortgage applications with First National Securities.  The mortgage application was successful.  The husband then took the money and fled abroad.  The bank sought a charging order over the husband’s equitable share of the property.

Issues

Whether or not the charging order could be granted over the husbands, but not the wife’s equitable interest in the property.  Whether or not the application for a mortgage on behalf of the husband was an act consistent with the husband acting upon his own interest and so capable of severing the joint tenancy.

Decision/Outcome

The application for the mortgage alone severed the joint tenancy as it was held to be an act which was inconsistent with the concept of a joint tenancy.  This could be seen as an act of an individual acting upon their own share, and so a cause for severance of the joint tenancy as set down in Williams v Hensman (1861) 70 E.R. 862.  The fraudulent legal charge could be effective against the husband’s interest in the property, but not against the wife’s interest.  The lender was therefore entitled to a legal charge over the property which could be enforced by way of an order for an application for sale, then under s30 Law of Property Act 1925, and which would now fall under s14 Trusts of Land and Appointment of Trustees Act 1996(TOLATA).  The hardship caused to the wife in this case was not sufficient to prevent a charging order being created.