Mortgage Corporation v Shaire

March 27, 2024
Micheal James

Jurisdiction / Tag(s):

Introduction to Mortgage Corporation v Shaire

The 2001 case of Mortgage Corporation v Shaire stands as a landmark decision in English land law, impacting both mortgage law and the legal intricacies of co-ownership. This case study delves into the facts, legal issues, arguments presented, and the court’s judgment, followed by a discussion of its lasting impact and the various legal principles it addresses.

Facts of the Case:

The story unfolds with a couple, Mr. Fox and Mrs. Shaire, who co-owned a house. The ownership details weren’t explicitly defined, but it was accepted that Mrs. Shaire had a larger share (around 75%) based on her greater contribution to the purchase price. Mr. Fox, unbeknownst to Mrs. Shaire, decided to secure a mortgage on the property. However, he committed a fraudulent act by forging Mrs. Shaire’s signature on the mortgage documents. Unfortunately, Mr. Fox defaulted on the mortgage repayments, leaving the Mortgage Corporation, the lender, in a precarious situation.

Legal Issues:

The case presented two central legal issues:

  1. Mortgage Validity: Could the mortgage be considered valid for Mrs. Shaire’s share of the property, even though her signature was forged?
  2. Discretion in Property Law: Did the court have the authority to order a sale of the property to satisfy the mortgage debt, considering the emotional attachment of Mrs. Shaire, the innocent co-owner?

Arguments Presented:

  • Plaintiff (Mortgage Corporation):
    • Despite the forgery, the Mortgage Corporation argued that the mortgage was a valid charge on the entire property. They sought an order for sale to recover the outstanding debt.
  • Defendant (Mrs. Shaire):
    • Mrs. Shaire countered that the forged signature rendered the entire mortgage void. She argued that she should not be held liable for Mr. Fox’s actions.


The court delivered a groundbreaking judgment.

  • Mortgage Validity: The court acknowledged the general principle that a forged signature renders a contract void. However, in this case, the court applied the concept of “non est factum” – a legal doctrine stating that a document is not considered a deed if the party signing it did not understand its nature or effect due to a fundamental mistake. In this instance, Mrs. Shaire was completely unaware of the mortgage and did not consent to it. Therefore, the court found the mortgage to be valid only for Mr. Fox’s 25% share of the property.
  • Discretion in Property Law: The case also addressed the court’s authority in property law matters. Prior to the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), the emphasis was on enforcing pre-existing interests (like mortgages) through a “sale” order. However, TOLATA introduced a more flexible approach. The court, in this case, acknowledged Mrs. Shaire’s emotional attachment to the property and the potential hardship of a forced sale. Therefore, instead of an immediate sale, the court ordered Mr. Fox’s 25% share to be treated as a loan owed to the Mortgage Corporation, with Mrs. Shaire having the option to repay it at a reasonable interest rate. Failure to repay would then lead to repossession of Mr. Fox’s share only.

Conclusion: A Multifaceted Legacy

The Mortgage Corporation v Shaire case stands as a pivotal decision with a multifaceted legacy. It offers crucial protection for innocent co-owners from the consequences of fraudulent actions by their partners. Furthermore, it underscores the court’s growing discretion in property law matters, allowing for solutions that balance legal obligations with the human element of ownership and emotional attachment to property. While the case raises questions about the potential implications for lenders, it ultimately represents a significant step towards a more nuanced and equitable approach to resolving co-ownership disputes and safeguarding the rights of innocent parties in mortgage transactions.

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