Hello BP I don't understand, which principle are you referring to in garguilo that can be applied to an application made to the chamber to determine if a lender has to sign a mortgage deed If you mean that a deed can be found to be void, that is not a principle set by Garguilo - it is just a fact of life, it can and does happen Apart from that I struggle to see any relevance in regard to Garguilo with the applications made, you have to remember that Apple has conceded that he/she misunderstood the meaning of the word "it" in that case.

You have to remember in Garguilo (1) Andrew Francis Garguilo (2) Jennifer Margaret Garguilo v (1) Jon Howard Gershinson (2) Louisa Brooks both acting as Joint Fixed Charge Receivers of Desmond Daniel Charles Moore in respect of Flat 4, Station Court, 140A High Street, Godalming (Deeds : Execution) [2012] EWLandRA 2011_0377 (06 January 2012) http://www.bailii.org/ew/cases/EWLandRA/2012/2011_0377.html 61. The submission on this point is that, even without forgery being demonstrated, the mere fact that the signatory pages of the Lease were, as I have found, executed separately and inserted into the Lease invalidates the instrument as a matter of law. 66. It was common ground that the documents in question were intended to be deeds. It was also common ground that the clients were asked to sign incomplete drafts of each of the three documents and that, when fresh documents in final form came to be executed, the client was not asked to sign these versions but instead the signature pages from the drafts were detached and stapled to the final version. There were differences between the drafts and the final versions. With a mortgage deed, the signatory page (well on a mortgage deed it is more of a space) is incorporated within the actual deed, it is not on a separate piece of paper that could be inserted into the deed at a later date The mortgage deed, is also not a incomplete draft (as per Garguilo), the actual document signed by the borrower is the same document that is sent to the Land Registry

Hello BP What is it you want Dodge to say ? It went badly for the lender ? I have no qualms in saying that it went badly for the lender. In fact, I would say it could not have gone any worse for the lender However, the reasons and circumstances that it went badly in that case don't apply to the application made by the OP on behalf of his friend to the chamber - The chamber has already told Is It Me? that this case is not relevant to the question of if a lender has to sign a mortgage deed The reason it went badly was because of the signatory page, this as we know is incorporated within a mortgage deed, so not applicable to the application - the "it" includes the signature as required by s.1 The above is from the Accord Mortgage Deed http://www.accordmortgages.com/documents/ACCL0002-Mortgage-Deed-E&W.pdf In terms of the mortgage deed, the lenders do not ignore the proper execution of deeds at their peril - instead they comply with the statutory requirements as per my earlier post The circumstances as detailed within that case are completely different to how a mortgage deed is used and signed by the borrower, prior to registration

before the RRO 2005 the legal position was confirmed by Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001) and as shown above, the RRO 2005 didn't make the changes suggested by this thread 12. So, says Mr Green, section 2 requires the signature of all the parties to a mortgage, being a contract for the disposition of an interesticon in land. He says that if you look at this mortgage at the end where the signatures appear it will be seen (on page 50 of Volume 1 of the bundles of documents) that there are the signatures of himself and Miss Challis, but there is no signature on behalf of Eagle Star. So, he submits, the mortgage of 8th November 1989 does not comply with the requirements of section 2 of the 1989 Act, which by then had come into force. He made it clear that it is not disputed that he owes money to Eagle Star, but there is a dispute about the precise amount. He emphasised that he has been regularly paying monthly payments to Eagle Star, though he accepts there are arrears. He says that the effect of applying section 2 to the mortgage of 8th November 1988 is that it is unenforceable. That means that the Eagle Star company are not entitled to obtain the order for possession which it obtained from His Honour Judge Jones. He emphasised a number of times during his submissions that without the signature of someone on behalf of Eagle Star the mortgage is not a full and complete legal document and so they are not entitled to enforce the charging provisions in it against him. 13.Mr Green referred to some passages in the report of the Law Commission which led to the bill enacted in the 1989 Act. He referred to passages in the Law Commission Paper No.164, in particular 4.5, 4.6 and 4.8. He also referred to a number of authorities. I think the most important of these (because it was concerned with a mortgage, while the other cases he referred to concerned contracts for the sale of land) was United Bank of Kuwait Plc v Sahib [1997] Ch at 107. I have been supplied with a copy in [1996] 3 All ER 251. That is an important case. It decided that the requirements contained in section 2 of the 1989 Act to the effect that a contract for the sale or other disposition in land must be in writing in a single document incorporating all the terms and signed by the parties, abolished the rule that a mere deposit of title deeds relating to property by way of security created a mortgage or charge. Following the 1989 Act the rule had changed. There had to be a written document, not merely a deposit of title deeds by way of security in order to create a mortgage or charge. 14.Mr Green relied on that for the proposition that the same should apply to this case because there was, in this case, within the mortgage deed a contract by him in the form of the covenant to repay. There were also contractual provisions or covenants by Eagle Star. So, he said, if the mortgage in United Bank of Kuwait v Sahib was governed by section 2 of the 1989 Act, so should this mortgage with similar results for its enforceability. 15.In my judgment this argument does not stand any real prospect of success. This is not a case of a contract: it is a case of a deed. If we were simply dealing with a contract to create a mortgage then Mr Green would be right. But in this case he and Miss Challis have actually executed a deed. It is clear from the provisions of the 1989 Act itself that a distinction is drawn between the formal requirements affecting the execution of deeds and the formal requirements governing contracts. Section 1 makes alterations to the law about the execution of deeds. For example, they are no longer required to be written on any particular kind of substance and a seal is not required for the valid execution of an instrument as a deed by an individual. There are a number of detailed provisions in section 1 relating to deeds. Section 2 does not apply to deeds; it applies to contracts. It may be a contract for the sale of land, it may be a contract for some other kind of disposition of an interest in land, one other kind of disposition being a transfer by way of security over what is commonly called a mortgage or charge.

Remember s.1 which applies to deeds only requires “(2) An instrument shall not be a deed unless: (a) it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and (b) it is validly executed as a deed: (i) by that person or a person authorised to execute it in the name or on behalf of that person, or (ii) by one or more of those parties or a person authorised to execute it in the name or on behalf of one or more of those parties (2A) For the purposes of subsection (2)(a) above, an instrument shall not be taken to make it clear on its face that it is intended to be a deed merely because it is executed under seal. (3) An instrument is validly executed as a deed by an individual if, and only if: (a) it is signed: (i) by him in the presence of a witness who attests the signature; or (ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and (b) it is delivered as a deed. (ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and (b) it is delivered as a deed.” Nothing in s.2 applies to deeds unless it is also mentioned in s.1

I think for this part, we need to look at the actual legislation – Firstly Schedule 2, Article 10(2) of the Regulatory Reform (Execution of Documents and Deeds) Order 2005 http://www.legislation.gov.uk/uksi/2005/1906/schedule/2/made 1989 c. 34. The Law of Property (Miscellaneous Provisions) Act 1989. In section 1— (a) in subsection (3)(b), the words from “by him” to the end; (b) in subsection (5), the words “involving the disposition or creation of an interest in land”; and © in subsection (6), the definition of “interest in land” and the word “and” preceding it. Secondly, we need to look at s.1(3)(b) of the LP (MP) A 1989 – before and after it was amended. Before (3)An instrument is validly executed as a deed by an individual if, and only if— (b)it is delivered as a deed by him or a person authorised to do so on his behalf. After (3) An instrument is validly executed as a deed by an individual if, and only if: (b) it is delivered as a deed. It is asserted by the application to the Property Chamber that the repeal of the words “by him or a person authorised to do so on his behalf” – have created a new obligation upon a lender to sign a mortgage deed. However, if we look at both s.1(2) and (3) as amended by the RRO 2005, a very different picture emerges – “(2) An instrument shall not be a deed unless: (a) it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and (b) it is validly executed as a deed: (i) by that person or a person authorised to execute it in the name or on behalf of that person, or (ii) by one or more of those parties or a person authorised to execute it in the name or on behalf of one or more of those parties (2A) For the purposes of subsection (2)(a) above, an instrument shall not be taken to make it clear on its face that it is intended to be a deed merely because it is executed under seal. (3) An instrument is validly executed as a deed by an individual if, and only if: (a) it is signed: (i) by him in the presence of a witness who attests the signature; or (ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and (b) it is delivered as a deed.” If we use a mortgage deed as an example s.1(2) as amended confirms that (a) A mortgage deed is not a mortgage deed unless it makes it clear on its face that it is intended to be a deed - it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise) – If we look at the Accord Mortgage Deed – we can see that it does make it clear on its face that it is a deed. (b) (i) It is validity executed as a deed by the person making it– s.1(3) details the requirements for a valid execution of a deed – I will return to that topic in a moment. So s.1(2) confirms that a deed must be validly executed by the person making it – It is the borrowers deed, as the borrower is granting a legal charge to the lender – so it must be validly executed by the borrower. s.1(3) explains what the borrower as the person who is required to validly execute a deed must do. It must be signed by him in the presence of a witness who must attest the signature and it must be delivered. If delivery as asserted by the application to the property chamber is a statutory implied obligation on the Lender – Why does statue include delivery, as part of what is required by the borrower to validly execute the deed – resulting from the statutory requirements to make an instrument a deed ?

Your own submission to the Property Chamber confirms that is It Me?'s friend granted a charge by way of legal mortgage and not a mortgage by demise "contrary to a mortgage by demise a charge by way of legal mortgage is evinced when the borrower remains the owner of the estate" - Your words "The applicant is the registered owner of the registered estate" - Your words * did the posts jump to the next page again ? This is exactly as I have previously posted One moment you say s.23(2) are the lenders powers and when it doesn't suit you, you say they are the borrowers powers Here, one moment you say a mortgage by demise is different from a mortgage by legal charge and now you say they are the same Lets see what the chamber has to say

yes he does, the law confirms that a borrower does have the statutory power to grant a lender a charge by way of legal mortage Read the law Apple http://www.legislation.gov.uk/ukpga/2002/9/section/27 27 Dispositions required to be registered (2)In the case of a registered estate, the following are the dispositions which are required to be completed by registration— (f)the grant of a legal charge. If Is It Me? relied on this, he would have been laughed out of the chamber

http://www.legislation.gov.uk/ukpga/2002/9/notes/division/4/3/1/1 55.This section states the unlimited powers of an owner. It makes one change to the current law. Under the existing law, there is a presumption that a registered charge takes effect as a charge by way of legal mortgage, unless there is clear provision to the contrary, or it is made or takes effect as a mortgage by demise or sub-demise. Mortgages by demise or sub-demise are now in practice obsolete, because of the advantages of a charge (that enables freeholds and leaseholds to be made the subject of a single charge rather than separate demises or sub-demises; the grant of a charge of a lease is not thought to amount to a breach of the common-form covenant against subletting without the landlord’s consent; and the form of legal charge is short and simple). Subsection (1)(a) therefore abolishes them, with prospective effect. " Mortgages by demise or sub-demise are now in practice obsolete, because of the advantages of a charge " -"Subsection (1)(a) therefore abolishes them, with prospective effect." 23 Owner’s powers (1)Owner’s powers in relation to a registered estate consist of— (a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a mortgage by demise or sub-demise, and Only mention of demise and sub-demise no mention of legal charge or even "things with the same effect"

The Law Commission would disagree with you Two ways of creating a legal mortgage- demise or by charge - They have the same effect but s.23(1) only refers to one type being demise and the amendment to s.87 confirms that it does not apply to mortgage by legal charge Read the explanatory notes at least

Apple read your own submission to the property chamber and what you said, in your own words 1) The applicant is the registered owner of the registered estate 2) It is submitted that the applicant had no legal power to create a mortgage by demise 3) contrary to a mortgage by demise a charge by way of legal mortgage is evinced when the borrower remains the owner of the estate You said the applicant is the registered owner of the registered estate and then you say contrary to a mortgage by demise a charge by way of legal mortgage is evinced when the borrower remains the owner of the estate

Apple Even in your submission to the Property Chamber you accept this point that they are different things - Now where you really confuse things is where started off the submission by saying The above is what you told Is It Me? to say to the Property Chamber 1) The applicant is the registered owner of the registered estate 2) It is submitted that the applicant had no legal power to create a mortgage by demise 3) contrary to a mortgage by demise a charge by way of legal mortgage is evinced when the borrower remains the owner of the estate You said the applicant is the registered owner of the registered estate and then you say contrary to a mortgage by demise a charge by way of legal mortgage is evinced when the borrower remains the owner of the estate

Apple a mortgage by demise or sub-demise is one type of mortgage - demise is freehold and sub-demise is leasehold - both are referred to as a mortgage by demise- It is when a borrower grants a lender a demise. Another type of legal mortgage is as confirmed by the law commission a charge by deed expressed to be by way of legal mortgage "legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage Even in your submission to the Property Chamber you accept this point that they are different things -

Apple is the self professed expert on what things "really mean" - so Apple os best placed to "explain"

You are still refusing to accept the meaning of the word "or" ? lol http://dictionary.cambridge.org/dictionary/british/or_1?q=or used to connect different possibilities: Is it Tuesday or Wednesday today? You can pay now or when you come back to pick up the paint. Are you listening to me or not? The patent was granted in (either) 1962 or 1963 - I can't quite remember which. It doesn't matter whether you win or lose - it's taking part that's important. There were ten or twelve (= approximately that number of) people in the room. He was only joking - or was he (= but it is possible that he was not)? "or" used to connect different possibilities a mortgage by demise or sub-demise or charge by way of legal mortgage "or" one or the other "there are two ways of creating a legal mortgage"

And your point being ? All of my posts in this thread are like that lol However, thanks for posting that, I was going to repost that after the decision was posted especially the part about mortgage by demise - now you have made it easier for me to find. Thank you You will see that I did try to explain it too you at the time but you was not interested . - I did try, boy have I tried

I think you might recall it was the Property Chamber that advised that it was going to be struck out. - I posted what the Chamber had said. I wonder if the property chamber decided to proceed with it because of your subsequent submission or because other applications had been made. Given what the rules state and what was said in the submission, I learn towards it was because other applications had been made

To put it simply why the law states differently S.23 Owner’s powers in relation to a registered charge consist of— (a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a legal sub-mortgage, and (b)power to charge at law with the payment of money indebtedness secured by the registered charge. S.24 Right to exercise owner’s powers A person is entitled to exercise owner’s powers in relation to a registered estate or charge if he is— (a)the registered proprietor, or "223.Paragraph 8 relates to a newly created charge over a registered estate or a registered rentcharge. The charge must be recorded in the register relating to the registered estate and show the chargee (typically the lender) as proprietor of that charge." The law says that the proprietor of the registered charge is entitled to exercise the powers of the owner of the registers charge. The law also confirms that the lender is typically registered as the proprietor of the registered charged. However, no point going around in circles, when the decision is posted we will know, one way or the other won't we

I have read it previously and I do understand what it says and what it means. ;-) - hence the content of my many posts Section 23 is in part 3 the bit about registered land. Section 27(2)(f) is also in part three, the part about registered land As Is It Me? has said this was discussed during the hearing - He could resolve this by disclosing what was actually said about this during the hearing about this very thing, otherwise we will have to wait until the actual decision is posted

I will save my applause until I have read the decision ;-) I will then clap very loudly

Yes, I did read that is what he said. However, I would still consider it odd that he remains so silent, even on how the day went generally - Afterall the other applicants might be interested and it would give them the heads up. Anything he decides to share would be of benefit to the other applicants, would it not ? The decision will be posted here, as and when so I guess everyone will just have to wait until then

This single post sums up things nicely Apple says unregistered the law says registered http://www.consumeractiongroup.co.uk/forum/showthread.php?391318-Repossession-questioned-by-deeds-not-being-signed&p=4471316&viewfull=1#post4471316

Apple read my post that you quoted "223.Paragraph 8 relates to a newly created charge over a registered estate or a registered rentcharge. The charge must be recorded in the register relating to the registered estate and show the chargee (typically the lender) as proprietor of that charge." "Registered Estate" The LRA 2002 defines "registered estate" as http://www.legislation.gov.uk/ukpga/2002/9/section/132 “registered estate” means a legal estate the title to which is entered in the register, other than a registered charge; The title has been been entered into the register

Whilst I consider it odd, that Is It Me? is so reluctant to post any detail of the hearing, beyond a couple of vague references, especially as he indicates it went so well for his friend and the other unknown applicant - I respect his right to stay tight lipped and to keep things to himself. In that case, I guess we will just have to until the written decision is posted in this thread then, to know what was said and done during the hearing. That will be very interesting to read.

Hello CB, Reading the thread again, I can see what happened. It looks like one of Is It Me?'s posts was approved and when it appeared on the thread, it pushed Crapstones post onto the next page. The page change just appeared odd at the time.