Skip to main content
  • About
  • News & Insights
  • Careers
  • International
0808 291 3524
Dialog that contains search functionality
Irwin Mitchell Logo
  • Personal
    • Personal
    • Personal Home
    • Personal Injury Claims
      • Personal Injury Claims
      • Personal Injury Claims Home
      • Abuse Claims
      • Accidents In Public Places Claims
      • Criminal Injury Compensation Claims
      • Accident At Work Claims
      • Air, Rail & Maritime Claims
      • Asbestos & Mesothelioma Claims
      • Changing Solicitors During a Personal Injury Claim
      • Group Claims
      • Holiday Accidents & Illness Claims
      • Illness Compensation Claims
      • Industrial Disease Claims
      • Injury Types
      • Military Injury Compensation Claims
      • No Win No Fee Personal Injury Claims
      • Personal Injury Claims In Scotland
      • How To Claim Compensation For Personal Injury
      • Product Liability Claims
      • Road Traffic Accident Claims
      • Serious Injury Claims
      • Who Can Help?
      • Support Services
    • Medical Negligence Claims
      • Medical Negligence Claims
      • Medical Negligence Claims Home
      • Cancer Misdiagnosis Claims
      • Birth Injury Claims
      • Cauda Equina Syndrome Claims
      • Never Event Claims
      • Ambulance & Paramedic Medical Negligence Claims
      • Cosmetic Surgery Claims
      • Private Healthcare Claims
      • Cerebral Palsy Claims
      • Defective Medical Device Claims
      • Dental Negligence Claims
      • Diabetes Misdiagnosis Claims
      • Fatal Medical Negligence Claims & Inquests
      • GP Negligence Claims
      • Hospital Negligence Claims
      • What Is Medical Negligence?
      • Meningitis Misdiagnosis Claims
      • Failure To Prevent Suicide Claims
      • Misdiagnosis Claims
      • Ophthalmic Negligence Claims
      • Pregnancy & Gynaecology Injury Claims
      • Sepsis Negligence Claims
      • Pharmacy And Medication Negligence Claims
      • Shrewsbury & Telford Hospital NHS Trust Maternity Care Claims
      • Stroke Misdiagnosis Claims
      • Surgery Compensation Claims
    • Family Law
      • Family Law
      • Family Law Home
      • Divorce Solicitors
      • Prenuptial & Postnuptial Agreement Solicitors
      • Child Abduction Solicitors
      • Civil Partnership Solicitors
      • LGBT+ Family Law Solicitors
      • Unmarried Couples' Rights
      • Divorce Financial Settlement Solicitors
      • Child Arrangement Orders
      • Family Mediation
      • Out of Court Divorce Solicitors
      • Separation Agreement Solicitors
      • Adoption & Surrogacy Solicitors
    • Wills, Trusts & Estates
      • Wills, Trusts & Estates
      • Wills, Trusts & Estates Home
      • Estate Planning Solicitors
      • Powers Of Attorney
      • Trusts
      • Will Writing Services
      • Will Disputes & Contentious Probate
    • Will, Trust & Estate Disputes
      • Will, Trust & Estate Disputes
      • Will, Trust & Estate Disputes Home
      • Trust Disputes
      • Inheritance Act Claims
      • Contesting A Will
      • Contentious Probate
      • Pre-Death Agreements
      • Professional Negligence
      • Challenging A Lifetime Gift
      • Financial Abuse
      • Statutory Will Disputes
      • Defending A Contested Will
    • Conveyancing & Property Solicitors
      • Conveyancing & Property Solicitors
      • Conveyancing & Property Solicitors Home
      • Conveyancing Fees Calculator
      • Buying A Property
      • Selling A Property
      • Remortgage
      • Transfer Of Equity
      • Buy To Let
      • Freehold Purchase (Leasehold Enfranchisement) Solicitors
      • Lease Extension Solicitors
      • Conveyancing Guide
      • Residential Property Disputes
    • Tax
      • Tax
      • Tax Home
      • Charity & Philanthropy
      • Business Tax
      • Inheritance Tax
      • International Tax
      • Professional Negligence
      • HMRC Tax Investigations
      • Tax Disputes & Litigation
      • Tax Residence
      • Tax Returns & Compliance
      • UK Resident Non-Doms
      • Wealth Structuring
    • Probate
      • Probate
      • Probate Home
      • International Probate
      • Probate Sale Conveyancing
      • What Is Probate & How Does It Work?
    • Employment Solicitors
      • Employment Solicitors
      • Employment Solicitors Home
      • Employment Contract Solicitors
      • Employment Disputes
      • Dismissal & Redundancy Solicitors
      • Employment Discrimination Solicitors
      • Employment Lawyers for Legal Expenses Insurance
      • Harassment & Bullying At Work Solicitors
      • Parental & Family Friendly Employment Rights
      • Professional Discipline Solicitors
      • Recruitment & Promotion
      • Senior Executive Employment Lawyers
      • Settlement Agreements
      • Whistleblowing Solicitors
    • Protecting Your Rights
      • Protecting Your Rights
      • Protecting Your Rights Home
      • Actions Against The Police
      • Inquests
      • Environmental & Planning Law
      • Assessment & Treatment Unit Solicitors
      • Data Protection Breach Claims
      • Education Law
      • Healthcare & Social Services
      • Human Rights
      • Judicial Review
      • Mental Capacity
      • Professional Regulation & Discipline
      • Dispute Resolution
      • Legal Aid
    • Immigration Solicitors
      • Immigration Solicitors
      • Immigration Solicitors Home
      • British Citizenship & Naturalisation Solicitors
      • EU & EEA Immigration Solicitors
      • Indefinite Leave To Remain Solicitors
      • Spouse Visa Solicitors
      • Innovator Visa
      • Permanent Residence Solicitors
      • Business Immigration Solicitors
    • Crime & Investigations
      • Crime & Investigations
      • Crime & Investigations Home
      • Crime
      • Fraud & Financial Crime
      • Court Martial Solicitors
      • Motoring Offences Legal Advice
      • Regulatory Investigations & Enforcement
    • Insolvency
      • Insolvency
      • Insolvency Home
      • Business Restructuring & Insolvency
      • Debt Consultancy
      • Insolvency Disputes & Litigation
    • Counselling
      • Counselling
      • Counselling Home
      • Counselling Myths Dispelled
    • Court Of Protection
      • Court Of Protection
      • Court Of Protection Home
      • Court Of Protection Deputyship
      • Personal Injury Trusts
      • Court Of Protection Problems & Disputes
      • Healthcare and Social Services
      • Court of Protection Frequently Asked Questions
      • Powers Of Attorney Disputes
      • Statutory Wills Solicitors
  • Business
    • Business
    • Business Home
    • Sectors
      • Sectors
      • Sectors Home
      • Agriculture & Rural Business
      • Retail, Leisure & Hospitality
      • Education
      • Financial & Professional Services
      • Landed Estates
      • Manufacturing
      • Real Estate
      • Sport
      • Technology & Communications
    • Banking & Finance
      • Banking & Finance
      • Banking & Finance Home
      • Corporate Banking
      • Leveraged & Acquisition Finance
      • Real Estate Finance
      • Receivables Finance & Asset Based Lending
    • Environmental, Social & Governance
      • Environmental, Social & Governance
      • Environmental, Social & Governance Home
      • Cyber Security
      • Environment
      • Net Zero
      • Social
      • Diversity & Inclusion
      • Governance
      • International
      • ESG Legal Advisory Services
      • Legislation Library
      • Manufacturing Sector
      • Real Estate
      • Retail, Leisure and Hospitality Sector
      • Sports Sector
    • Business Crime
      • Business Crime
      • Business Crime Home
      • Anti-Bribery & Corruption
      • Asset Tracing & Recovery
      • Cartels & Illegal Price Fixing
      • Cybercrime
      • Dawn Raids
      • Deferred Prosecution Agreements
      • Extradition
      • INTERPOL Red Notices
      • Mutual Legal Assistance
      • Private Prosecution
      • Proceeds Of Crime Act
      • Unexplained Wealth Orders
      • Fraud Lawyers
      • Insider Trading & Market Abuse
      • Corporate Internal Investigations
    • Business Immigration
      • Business Immigration
      • Business Immigration Home
      • Business Visitor Visa
      • Global Business Mobility Visas
      • Innovator Visa
      • Prevention Of Illegal Working
      • Skilled Worker Visas
      • Sole Representative Of An Overseas Business
      • UK Visa Sponsor License
    • Commercial
      • Commercial
      • Commercial Home
      • Commercial Contracts
      • Competition Law
      • GDPR & Data Protection
      • Information Technology
      • Sourcing
      • Notary Public Solicitors
    • Commercial Litigation & Dispute Resolution
      • Commercial Litigation & Dispute Resolution
      • Commercial Litigation & Dispute Resolution Home
      • Banking & Finance Litigation
      • Business Interruption Insurance Lawyers
      • Contract Disputes
      • Defamation & Reputation Management
      • International & Cross-Border Disputes
      • Commercial Debt Recovery
      • Litigation Funding
      • Professional Negligence
    • Corporate
      • Corporate
      • Corporate Home
      • Corporate Advisory
      • Equity Capital Markets
      • Mergers & Acquisitions (M&A)
      • Private Equity
      • Search Funds and Entrepreneurship Through Acquisition Lawyers
    • Costs Team
    • Employment Law
      • Employment Law
      • Employment Law Home
      • Business Immigration
      • Employment Contracts, Policies & Procedures
      • Disciplinary & Grievance
      • Employee & Industrial Relations
      • Employment Lawyers for Legal Expenses Insurance
      • Employment Litigation & Resolution Lawyers
      • Equality, Diversity & Discrimination
      • Flexible Working Arrangements
      • Health & Safety
      • HR Advice Service - IMhrplus
      • Managing Sickness Absence
      • Pensions
      • Recruitment
      • Restrictive Covenants
      • Restructuring & Redundancy
      • Self Employment, Contractors & Agency Workers
      • Employment Seminars, Training & Updates
      • TUPE
    • In-House Counsel
    • Intellectual Property and Media
      • Intellectual Property and Media
      • Intellectual Property and Media Home
      • Defamation & Reputation Management
      • Brand Accelerator
      • Copyright Lawyers
      • Design Rights Lawyers
      • Image Rights Lawyers
      • Online Marketplace Seller Account Or Listing Suspensions
      • Stopping IP Infringement By Sellers On Online Marketplaces
      • Patent Lawyers
      • Trade Mark Lawyers
      • Trade Secrets Lawyers
    • Legal Helpline
    • Licensing
      • Licensing
      • Licensing Home
      • Betting & Gaming Licensing
      • Event Licences
      • Alcohol Licensing
    • Pensions
      • Pensions
      • Pensions Home
      • Employment
      • Managing Death Benefit Trusts
    • Regulatory & Compliance
      • Regulatory & Compliance
      • Regulatory & Compliance Home
      • Road Transport & Operator Compliance
      • GDPR & Data Protection
      • Regulatory Investigations
      • Account Freezing Orders
      • Anti-Money Laundering
      • Companies House Prosecutions
      • Environment & Safety Regulatory Compliance
      • Financial Services Regulation
    • Real Estate
      • Real Estate
      • Real Estate Home
      • Corporate Occupiers
      • Real Estate Development and Regeneration
      • Construction & Engineering
      • Environmental
      • Real Estate Finance
      • Real Estate Investment
      • Later Living & Care
      • Planning
      • Property Litigation & Real Estate Disputes
      • Real Estate Tax
      • Residential Development
      • Strategic Land
      • Structured Real Estate
    • Restructuring & Insolvency
      • Restructuring & Insolvency
      • Restructuring & Insolvency Home
      • Corporate Insolvency
      • Partnership Insolvency
      • Directors' Duties
      • Restructuring Plans
      • Debt Recovery (up to £100,000) – Pricing
      • Restructuring
    • Tax
      • Tax
      • Tax Home
      • Corporate Tax
      • Real Estate Tax
      • Tax Investigations
  • People
    • People
    • People Home
    • Search By Name
    • Search By Location
    • Search By Expertise
    • Business Management
  • Offices
    • Offices
    • Offices Home
    • Birmingham
    • Brighton
    • Bristol
    • Cambridge
    • Cardiff
    • Chichester
    • Edinburgh
    • Gatwick
    • Glasgow
    • Leeds
    • Liverpool
    • London
    • Manchester
    • Middlesbrough
    • Newbury
    • Newcastle
    • North Yorkshire
    • Nottingham
    • Reading
    • Sheffield
    • Southampton
  • Contact
  • About
  • News & Insights
  • Careers
  • International
Irwin Mitchell Logo
Dialog with Irwin Mitchell phone number
Call us on 0808 291 3524

We're here 24/7, 365 days a year.

  • Home
  • News & Insights
  • Newsletters
  • IM On The Money
  • IM on the Money - Issue Nine
  • Last Bite of the Cherry

Last Bite of the Cherry

A mortgagee’s statutory power of sale can be expressly varied, but what happens when the clause varying this power is not expressly incorporated in the registered charge but contained within an unregistered document?

In the Court of Appeal case of Cherry Tree Investments Ltd v Landmain Ltd, a borrower and lender used a Land Registry standard form charge, supplemented by a facility agreement which set out commercial terms agreed between the parties. This agreement varied the statutory power of sale so the lender could sell, not only on the borrowers default, but as soon as the charge was executed.

The charge was registered at the Land Registry however the facility agreement was not and the charge itself made no reference to it.

A dispute arose between the borrower and the lender as to whether the borrower was in default. The lender sold the property under the extended power of sale. The purchaser sought to register its title and the borrower objected. The purchaser sought a Court Order that it be registered as the owner, which the Judge at first instance granted. The borrower appealed.

The Court of Appeal overturned the first instance decision ruling that the charge could not be interpreted to include the terms within the unregistered document. The Court stated that a charge was a public document, open to public inspection and to be relied upon by third parties. Because of this, the Court felt the weight attached to the facility agreement was not enough to apply the usual rules of construction to incorporate the terms into the charge.

Interpreting the charge using the unregistered terms would mean the insertion would be treated as having been made when the charge was originally registered and would take priority over subsequent registered interests – thereby undermining the priority rules of the registered system. Interestingly, the Court found that had rectification been pleaded in the alternative, the purchaser would likely have succeeded in its argument, as the amendment would not have been fully retrospective.

This would not of course have helped the purchaser to register its sale retrospectively.

Finally, it is worth remembering that, in order to be incorporated into the charge, a term need not be set out in full therein. It is sufficient if the agreement, in this case the facility agreement, is clearly identified and expressly stated to be incorporated.

Emma Giles - Solicitor, Banking, Finance and Professional Negligence, Manchester

For general enquiries

0808 291 3524

Or we can call you back at a time of your choice

Phone lines are open 24/7, 365 days a year

Contact us today

For a free initial consultation

Freephone

0808 291 3524

Prefer not to call?

Use our form

This data will only be used by Irwin Mitchell for processing your query and for no other purpose.

About Irwin Mitchell

Founded in Sheffield in 1912, Irwin Mitchell has always been a bit different. Our advisers really get to know the people and business that we help.

We have offices around the UK so wherever you are, our experts can help.

Contact Us

Give us a ring to speak to a member of our team in the strictest confidence. Or you can fill out our contact form and we'll ring you back.

0370 1500 100

Our phone lines are open 24/7, 365 days a year

Get a call back

Fill in your details below and we'll be in touch as soon as possible

This data will only be used by Irwin Mitchell for processing your query and for no other purpose.

  • Contact
  • 0370 1500 100
  • Contact Irwin Mitchell
  • Social Media
  • Twitter
  • Facebook
  • YouTube
  • LinkedIn
  • Instagram
  • About Irwin Mitchell
  • About Us
  • Responsible Business
  • Careers
  • Business Management
  • Alumni Programme
  • Pay A Bill
  • Complaints Procedure
  • SRA Regulated
  • Terms & Conditions
  • Accessibility
  • Privacy & Security
  • Hoaxes
  • Modern Slavery Act Statement
  • Manage Cookie Settings

© 2025  Irwin Mitchell LLP

Irwin Mitchell LLP is authorised & regulated in England and Wales by the Solicitors Regulation Authority (SRA).
Irwin Mitchell Scotland LLP is a Scottish legal practise separate to the Irwin Mitchell Group and regulated by the Law Society of Scotland.
Our Regulatory Information

Dialog that contains a form to request a callback.

Request A Callback

Enter your details below and a member of our team will contact you within 24 hours

This data will only be used by Irwin Mitchell for processing your query and for no other purpose.