From time to time we receive applications for legal services from persons with mortgage difficulties.
Sometimes it is argued that the mortgage is invalid because the applicant didn’t validly consent, or defectively consented, to the property being mortgaged. We take the view that disputes about the validity of a mortgage are not disputes about rights or interests in or over land. Legal aid may be granted for such cases subject to the application of the merits criteria.
However, our experience is that in the vast majority of cases involving difficulties with a mortgage, there is no dispute about the validity of the mortgage. Legal advice may be given in relation to these difficulties. Our approach is that proceedings taken against a borrower do not necessarily constitute a dispute concerning rights and interests in or over land however the requirements set out in sections 24 and 28(2) of the Act still need to be met i.e., the applicant is required to satisfy the merits test.
The application may fail to satisfy the likelihood of success test if the plaintiff and defendant are agreed on the fact that the mortgage is valid and the amount is owed. If there’s no defence its unlikely that we will grant legal aid. This does not stop you continuing to provide legal advice to the applicant so long as you do not act for them in any proceedings.