Limitation act query

[CYNthesys]

Admin, please move this post if it is not in the correct forum. Limitaton Act Section is showing as a closed thread.
Section 28 of Limitation Act 1980 relates to persons under a disability- subsection 28(4) seeme to suggest that the limitation period to recover land or money charged on land is 30 years.
Can anyone expand on this please, as I always thought it was 12 years,

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28Extension of limitation period in case of disability.

(1)

Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when he ceased to be under a disability or died (whichever first occurred) notwithstanding that the period of limitation has expired.

(2)

This section shall not affect any case where the right of action first accrued to some person (not under a disability) through whom the person under a disability claims.

(3)

When a right of action which has accrued to a person under a disability accrues, on the death of that person while still under a disability, to another person under a disability, no further extension of time shall be allowed by reason of the disability of the second person.

(4)

No action to recover land or money charged on land shall be brought by virtue of this section by any person after the expiration of thirty years from the date on which the right of action accrued to that person or some person through whom he claims.

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[des8]

Re: Limitation act query

I read it that if the person who has the right to act is under a disability, the limitation act's 6 years doesn't kick in until the disability ceases or the person dies.
However there is an overall limitation period of 30 years from the time the original cause arose.

So eg:
2000 cause of action disable claimant
2006 normal limitation period ends
2028 claimant dies
Claim can be made upto 2030

[CYNthesys]

Re: Limitation act query

Thanks Des, you think eg

2000 cause of action disable claimant
2006 normal limitation period ends
2028 claimant dies
Claim can be made upto 2030

Im thinking on the lines of -eg
cause of action arises 2000,
claimant dies in 2008,without regaining mental capacity
therefore time (30years) would start to run on claimants death

[des8]

Re: Limitation act query

I'm understanding;

cause of action arises 2000
Claimant dies 2008 without regaining capacity
limitation period (6 years) starts 2008

Open to correction . As always statutes are written in most convoluted langauge possible.

[CYNthesys]

Re: Limitation act query

so, in my late husbands case

Cause of action arose in 1999

Husband died in 2004 without regaining capacity

As an action to recover land or money secured on land has a 30 year limitation period, proceedings must be commenced by 2034?

[des8]

Re: Limitation act query

As the Court of Appeal held that the limitation period in relation to claims for a mortgage debt is 12 years from the accrual of the cause of action to sue for the principal as a debt but only six years to sue for interest in your case I would expect limitation period to end:
in respect of interest: 2010
in respect of capital: 2016

Not what you needed to hear, but that is how I understand that clause.
It would be good if others could confirm or deny.

[CYNthesys]

Re: Limitation act query

Des as my husband was the freehold owner of the land and the property
what is the difference between a mortgage debt and money secured/charged on land.

[des8]

Re: Limitation act query

I beleve the main difference is that a mortgage will always be a legal charge on the land, whereas a secured loan may be registered as an equitable charge

Legal Charges

A legal charge is usually registered to protect a mortgage loan. The owner of legal charge has a power of sale should the mortgage payments not be maintained. Anyone buying a property which is subject to a legal charge must ensure the seller pays off the mortgage on completion otherwise the buyer will be subject to the lender’s power of sale. Unlike an interest protected by a notice, or an equitable charge, a legal charge is an actual legal interest in land, just like a right of way, and so it is capable of binding future owners of a property who were not a party to the mortgage contract.
Equitable Charges

There are two basic reasons for an equitable charge to be created. Either an attempt was made to create a legal charge but the formalities were not dealt with correctly or a court order has been obtained to charge the property with a previously unsecured debt. Holding an equitable charge does not give the owner a power of sale, though he may be able to go to court and obtain an order for sale based on his charge.

[CYNthesys]

Re: Limitation act query

Des I'm still confused, maybe I'm just thick LOL

You wrote that a legal charge is usually registered to protect a mortgage loan, but I know for a fact that YB didn't register the charge. The land/property was not registered with Land Registry, the sale by the receivers triggered 1st registration, Even though it wasn't registered I understand that the Bank could have registered the charge under Land Charges Act. Searches were conducted but no results were found.

As the Bank was unable to enforce its security under the mortgage it enforced its security under the terms of the personal guarantee.
Would that in your view make any difference re 12 or 30 year limitation perod

[des8]

Re: Limitation act query

If the bank failed to complete the formalities and no legal charge was registered, the bank would be unable to enforce its security.
I suspect (ie I'm not sure) that the argument would be that although the loan was described as "secured",and should have been registered in fact it was not and so the liitation period is capped at 12 years.

[CYNthesys]

Re: Limitation act query

You say that as the legal charge wasn't registered the bank wouldnt have been able to enforce its security. It did enforce its security though by relying on the personal guarantee. Do you know if that is that legally correct?

[des8]

Re: Limitation act query

It is not unusual for business loans (secured or not) to be backed by personal guarantees.
I would expect the PG to be called upon, only if the sale of the company assets failedto discharge the loan.

I believe from memory of earlier threads your husband's commercial premises were car showrooms and there was concern about the valuation and sale by bank's agents?

[CYNthesys]

Re: Limitation act query

Des, to clarify- my late husband was the freehold owner of the property and the charge he executed (that the Bank didnt register) was headed-

LEGAL MORTGAGE BY OWNER TO SECURE CUSTOMER ACCOUNT.

The monies had been lent to the company. The company ceased trading and didnt have any assets, but I ensured that the monthly repayments continued to be made. The account was up to date, no arrears or defaults whatsoever.
When Bank was put on notice of husbands mental incapacity demand was made on non-trading company, following which demand was made on the mentally incapacitated guarantor.
The premises consisted of 3 units 2 of which were tenanted, my husband's business traded from the 3rd unit

[des8]

Re: Limitation act query

OL went into this in some detail earlier this year if my memory serves me rightly.

Regarding your current queries, however, I don't think there is any prospect of success.
As the charges were never registered the limitation act 30 year extension does not apply, and there is no reason for the bank not calling in a personal guarantee.

I do believe you and your late husband were shafted, and I'd love it if another beagle can come to a different conclusion and give you hope.

[CYNthesys]

Re: Limitation act query

Thanks anyway Des, I'm just trying to make sure that I've not missed anything