2Dwelling house subject to mortgage
In the Act of 1967, after section 7, there shall be inserted the following section 7A, and subsection (1) of that section 7A shall be deemed always to have had effect:—
“7ADwelling house subject to mortgage.
(1)In determining for the purposes of this Act whether a spouse or former spouse is entitled to occupy a dwelling house by virtue of an estate or interest there shall be disregarded any right to possession of the dwelling house conferred on a mortgagee of the dwelling house under or by virtue of his mortgage, whether the mortgagee is in possession or not; but the other spouse shall not by virtue of the rights of occupation conferred by this Act have any larger right against the mortgagee to occupy the dwelling house than the one first mentioned has by virtue of his or her estate or interest and of any contract with the mortgagee, unless under section 2 of this Act those rights of occupation are a charge, affecting the mortgagee, on the estate or interest mortgaged.
(2)Where a mortgagee of land which consists of or includes a dwelling house brings an action in any court for the enforcement of his security, a spouse who is not a party to the action and who is enabled by section 1(5) or (5A) of this Act to meet the mortgagor's liabilities under the mortgage, on applying to the court at any time before the action is finally disposed of in that court, shall be entitled to be made a party to the action if the court—
(a)does not see special reason against it; and
(b)is satisfied that the applicant may be expected to make such payments or do such things in or towards satisfaction of the mortgagor's liabilities or obligations as might affect the outcome of the proceedings or that the expectation of it should be considered under section 36 of the [1970 c. 31.] Administration of Justice Act 1970.
(3)(a)Where a mortgagee of land which consists or substantially consists of a dwelling house brings an action for the enforcement of his security, and at the relevant time there is—
(i)in the case of unregistered land, a land charge of Class F registered against the person who is the estate owner at the relevant time or any person who, where the estate owner is a trustee, preceded him as trustee during the subsistence of the mortgage; or
(ii)in the case of registered land, a subsisting registration of a notice or caution entered pursuant to section 2(7) of this Act;
(3)(a)notice of the action shall be served by the mortgagee on the person on whose behalf the land charge is registered or the notice or caution entered, if that person is not a party to the action.
(b)For the purposes of paragraph (a) above, if there has been issued a certificate of the result of an official search made on behalf of the mortgagee which would disclose any land charge of Class F, notice or caution within sub-paragraph (i) or (ii) of paragraph (a) above, and the action is commenced within the priority period, the relevant time is the date of that certificate; and in any other case the relevant time is the time when the action is commenced.
In this paragraph " priority period" means, for both registered and unregistered land, the period for which, in accordance with section 11(5) and (6) of the [1972 c. 61.] Land Charges Act 1972, a certificate on an official search operates in favour of a purchaser.
(4)In this section—
(a)"mortgage" includes a charge and " mortgagor " and " mortgagee " shall be construed accordingly;
(b)" mortgagor " and " mortgagee " includes any person deriving title under the original mortgagor or mortgagee.”