Stephanie Tozer KC

Damages for the damnified? What DOES Law of Property Act s 104(2) mean?

Section 104(2) is frequently used to ease the conveyancing process when a mortgagee sells the security: it enables the mortgagee to pass good title to a purchaser even if the exercise of its power of sale is unauthorised, improper or irregular. The corollary of that power, the obligation to pay damages if a wrongful sale occurs, has, until recently, received little attention. This article highlights two recent cases, explains what we can learn from them, and sets out some thoughts on the remaining unanswered questions arising out of this provision.