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Garguilo v Jon Howard Gershinson & Anr [2012] EWLandRA 2011_0377 (06 January 2012)

Location: Case TypesProperty

Posted by: Stephen Moore 01/03/2012 21:56

We are pleased to welcome solicitor and partner Anis Waiz of Mohindra Maini LLP as he continues his critical review of current case law. Here, Anis examines Garguilo v Jon Howard Gershinson (2) Louisa Brooks Joint Fixed Charge Receivers of Desmond Daniel Charles Moore in respect of 140 High Street, Godalming ( Deeds) [2012] EWLandRA 2011_0377 (06 January 2012)

 

Introduction

 

Here we examine a very important and perhaps unnoticed decision of the Adjudicator to HM Land Registry which raised two substantive legal issues. The execution of a lease and who has the right to seek rectification.

 

As a result of this case the Land Registry replaced its earlier guide to Rectification and indemnity in January 2012 . http://www.landreg.gov.uk/upload/documents/pg39.html

 

Background

 

Mr and Mrs Garguilo applied to the land registry to rectify the register of a title to property in surrey. They and another party were the registered owners. They sought to cancel a lease purportedly granted to a third party and a charge in favour of a Bank . Both the Lease and the Charge were registered in September 2008. The background facts are somewhat complicated and the reader is referred to the judgment.

 

The third party a borrower of the bank failed to make payment to the Bank and accordingly the Bank appointed LPA receivers over the property. The LPA receivers were respondents to the application.

 

The application was made on the basis the Lease was a nullity because a third party did not knowingly sign the Lease.

 

Between the parties it was common ground that if the Lease was void then the registration of the Lease constituted a ‘mistake’ for the purposes of paragraph 5(a) of Schedule 4 to the Land Registration Act 2002 (the 2002 Act)

 

In addition under paragraph 6(2) of Schedule 4 of the 2002 Act there was an important issue as to who could apply to remove both the Lease and the Charge.

 

 

Read more : - http://www.casecheck.co.uk/CaseLaw.aspx?EntryID=18368

 

 

 

 

Hope this helps too?

 

Apple

Edited March 26, 2013 by citizenB

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RE Post no 25 - I believe this is based around a 'forged' signature.

[citizenB]

Hi, makes some interesting reading. I feel a bit stuck regards only 1 signature from the borrower, please express your thoughts.

 

 

 

BLUNDELL LECTURES – 34TH ANNUAL SERIES

 

THE ENFORCEABILITY AND UNENFORCEABILITY OF CHARGES OVER LAND – PART I

 

HAVE I GOT A CHARGE?

 

Introduction

 

1. The overriding theme of this year’s Blundell Lectures is dictated by the economy. Do I have to pay? Can I get out of paying? Can I sue the guarantor? These are the questions which last came to prominence in the property crash of the early nineties. They have returned, in a more virulent form. The deal driven cases which were still crossing my desk this time last year have gone, to be replaced by clients seeking exit routes from conditional contracts negotiated in better times, clients seeking to activate or frustrate break clauses, clients seeking to stave off lenders or enforce securities, and a myriad of other cases driven by the contraction in credit and the contraction in the economy.

 

1.1 Standing at the centre of all this is the mortgage market, both residential and commercial. In the first blast of the recession my impression has been that lenders have preferred to avoid or defer the enforcement of their securities, perhaps on the basis that enforcement at the bottom of the market is not the best option.

 

1.2 It is difficult to believe that this state of affairs will last. Whatever politicians may say about green shoots, past experience of recessions tells us that after a certain period of time debtors run out of money and excuses, and lenders run out of patience. It is at that point that lenders look to enforce their securities, and it is at that point that everyone starts to look very closely at the security agreement entered into in better times. 2

 

1.3 In tonight’s lecture the task which Carol and I are undertaking is to carry out at least part of that scrutiny, in relation to charges over land, before the balloon goes up for those of your clients who may be looking to enforce or to resist the enforcement of a charge over land.

 

EDWIN JOHNSON QC

 

Maitland Chambers

 

22nd June 2009

 

 

 

For the full text read : - [ATTACH=CONFIG]42759[/ATTACH]

Edited March 26, 2013 by citizenB

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Practice Guide 8 – Execution of deeds

 

 

Updated: March 2012

 

Update

 

This edition of the guide replaces the January 2012 edition. Amendments have been made to reflect the coming into force of the Charities Act 2011, which repealed the Charities Act 1993 and parts of the Charities Act 2006.

Scope of this guide

 

The aim of this guide is to advise on the execution of deeds that are to be submitted to Land Registry. It is aimed at conveyancers, and you should interpret references to 'you' accordingly. Land Registry staff will also refer to it.

1 Terms and abbreviations used

 

In this guide:

'CA 1985' means the Companies Act 1985

'CA 2006' means the Companies Act 2006

'Companies Acts' means CA 1985, the Companies Act 1989 and the Companies Act 2006

'conveyancer' means an authorised person within the meaning of s.18, Legal Services Act 2007 who is entitled to provide the conveyancing services referred to in paragraphs 5(1)(a) and (b) of Schedule 2 to that Act, or a person carrying out those activities in the course of their duties as a public officer. It also includes an individual or body who employs or has among their managers such an authorised person who will undertake or supervise those conveyancing activities (r.217A, LRR 2003)

'EPAA 1985' means the Enduring Powers of Attorney Act 1985

'IA 1986' means the Insolvency Act 1986

'LPA 1925' means the Law of Property Act 1925

'LPA 2007' means the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007

'LP(MP)A 1989' means the Law of Property (Miscellaneous Provisions) Act 1989

'LRA 2002' means the Land Registration Act 2002

'LRR 2003' means the Land Registration Rules 2003

'MCA 2005' means the Mental Capacity Act 2005

'PAA 1971' means the Powers of Attorney Act 1971

'RRO 2005' means the Regulatory Reform (Execution of Deeds and Documents) Order 2005

'TDA 1999' means the Trustee Delegation Act 1999

'TLATA 1996' means the Trusts of Land and Appointment of Trustees Act 1996

'UK' means the United Kingdom.

2 General points

 

2.1 The need for a deed when dealing with land

 

With a few exceptions1, a legal interest in land cannot be conveyed or created without a deed (s.52(1), LPA 1925).

1 See s.52(2), LPA 1925. The exceptions include assents, which must be in writing but need not be executed as a deed (s.36(4), Administration of Estates Act 1925), and leases taking effect in possession for a term not exceeding three years at the best rent which can be reasonably obtained without taking a fine (s.54(2), LPA 1925).

2.2 Elements of a deed

 

 

 

To be a deed the document:

• must be in writing
  
• must make clear on its face that it is intended to be a deed by the person making it or the parties to it. This can be done by the document describing itself as a deed or expressing itself to be executed as a deed 'or otherwise'
  
• must be validly executed as a deed by the person making it or one or more of the parties to it (s.1, LP(MP)A 1989).
  

Where a person outside England and Wales, or a company or corporation incorporated outside England and Wales, is to execute a deed relating to land in England and Wales, it is still English law that applies to the form and execution of the deed. Land is 'immovable property' and so the law governing its disposition is the law of the territory in which it is situated.

 

2.3 Deeds and Land Registry

 

Certain deeds affecting registered land need to follow a prescribed form (r.206, LRR 2003). (In cases where there is no prescribed form, the deed must be in such form as we may direct or allow (r.212, LRR 2003).) Currently, the prescribed forms include transfers of registered titles and registered charges (forms TP1, TP2, TR1, TR2, TR4 and TR5), assents of registered titles and registered charges (forms AS1, AS2 and AS3), and discharges of and releases from registered charges (forms DS1 and DS3). The words of execution for these deeds are also prescribed. The prescribed forms and words of execution may be in either English or Welsh.

In this guide we set out the different prescribed words of execution or attestation clauses (these terms being used interchangeably). Where we refer to a situation for which there is no prescribed attestation clause, we give a suggested clause. To reduce requisitions, we recommend that in all deeds sent to us you use the prescribed or suggested attestation clauses, adapted as necessary.

3 Execution of deeds by individuals

 

3.1 The three elements: signature, attestation and delivery

 

3.1.1 Signature

 

To be validly executed as a deed by an individual, they must sign the document. Making one's mark on a document is treated as signing it (s.1(4), LP(MP)A 1989). The signature should be on the document itself in the space provided and the words of execution should name the signatory or otherwise make clear who has signed the document. For obvious reasons, the signature ought to be in ink or some other indelible medium.

The individual must sign manually, not in facsimile. However, the registrar might accept a discharge or release in form DS1 or DS3 though signed in facsimile. A discharge or release in one of these forms must be “executed as a deed or authenticated in such other manner as the registrar may approve” (r.114(3), LRR 2003).

3.1.2 Attestation by a witness

 

The individual must sign “in the presence of a witness who attests the signature” (s.1(3), LP(MP)A 1989). We look to see that a witness has signed the deed, that their signature clearly records the witnessing of the signing of the deed by the individual concerned, and that the name and address of the witness appear in legible form on the deed (to allow the witness to be traced should any questions later arise concerning execution).

The relevant legislation does not prevent a signatory's spouse, civil partner or cohabitee from acting as a witness, but this is best avoided. It is also advisable that the witness be no younger than 18 or, at least, of sufficient maturity for their evidence to be relied on should it later prove necessary to verify the circumstances under which the execution took place.

3.1.3 Delivery

 

The document must be “delivered as a deed” by each person executing it or a person authorised to deliver it on their behalf (s.1(3)(b), LP(MP)A 1989). Delivery requires that the person expressly or impliedly acknowledges, by words or conduct, an intention to be bound by its provisions.

Where a conveyancer, in a transaction involving the disposal or creation of an interest in land, purports to deliver a document as a deed on behalf of a party to it, there is a conclusive presumption in favour of a purchaser that the conveyancer is authorised to deliver it (s.1(5), LP(MP)A 1989). In practice, we assume that a document has been delivered as a deed unless there is some indication to the contrary. So if, for example, the words of execution have been modified to provide that delivery has not taken place, or that delivery is not to be presumed until some condition has been fulfilled, we will require evidence that delivery has subsequently taken place.

3.2 Attestation clause

 

The general law does not require a particular attestation clause. It is sufficient if the clause makes clear that the signatures of the parties to the deed are intended to be by way of execution and that they were made in the presence of the witnesses. The wording should also state that the document has been executed “as a deed”. Then, even if it is not clear elsewhere in the document that it is intended to be a deed, the words of execution will make this apparent – see section 2.2 Elements of a deed.

In transfers of registered land and other deeds whose form is prescribed, you must use the following attestation clause (or its Welsh equivalent) when individuals execute the deed.

 

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3.3 People unable to read or understand a deed

 

A person may be illiterate, unable to read a deed because of physical illness or disability, or unable to understand the deed because it is in a foreign language2. How such a person informs themselves of the contents of the deed before execution will depend on the circumstances.

2 If a person does not understand the deed for other reasons, they may not have capacity to execute a deed.

If the person executing the deed is not sufficiently literate to read it, the contents might be read over to them or the effect of the deed fully explained.

If the signatory is physically impaired so as to be unable to read the deed, they might have the deed read out or might read an enlarged or Braille copy.

If the signatory does not understand the English language (or Welsh if the deed has been drawn up in Welsh), they could read a copy in their own language or have it read out in that language.

In each of the above cases, we recommend that the individual's conveyancer witnesses the signature as confirmation that a proper procedure has been followed. The facts of the case can be recorded by way of an amendment to the attestation clause as shown below.

Modification of the words of execution will mean that they no longer follow the prescribed wording. However, you may make “such alterations and additions, if any, as the registrar may allow” (r.206(3), LRR 2003).

We will accept a clause in the following terms without the need for specific approval in advance.

 

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3.4 People physically unable to sign

 

Some individuals may be physically incapable of signing a deed. This may be as a result of illness or disability. A deed may be validly executed by an individual if it is signed at their direction and in their presence and the presence of two witnesses who each attest the signature (s.1(3)(a)(ii), LP(MP)A 1989). The usual words of execution should be suitably modified to reflect the method of execution. In transfers of registered land and other deeds whose form is prescribed you must use the following words of execution (or their Welsh equivalent) when an individual executes the deed by directing another to sign on their behalf.

 

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This method of execution is appropriate if the individual is unable to sign at all. If the individual is able to sign (which includes making their mark) whether by hand, foot or mouth, it may be preferable to use the ordinary method of execution.

3.5 People signing in foreign characters

 

 

 

A signature in foreign characters still constitutes a signature complying with the requirements for a valid deed. However, where any instrument is executed in foreign (ie non-Roman) characters, such as Arabic or Chinese characters, we will require either:

• the words of execution to be expanded to confirm that the signatory understands English or that the signatory has familiarised themselves with its contents (perhaps by having had it read out in their native language), or
  
• a separate certificate to that effect given by the conveyancer acting for the signatory.
  

3.6 People signing in an official capacity

 

 

There are circumstances in which individuals will be executing a deed not in connection with their own affairs but in some official capacity, which entitles them to act on behalf of someone else. Examples are a person acting as an executor or administrator of the estate of someone who has died (s.1, Administration of Estates Act 1925) and a person acting as a trustee in bankruptcy on behalf of a bankrupt (s.306, IA 1986). Note that the situation here is distinct from that where an individual has delegated authority under a power of attorney, which is dealt with later. The person signing needs to do so in their own name and the signature should be witnessed in the usual manner. The words of execution in the deed need only be modified to show the capacity in which the person has signed if this fact is not clear from the body of the document.

As well as ensuring that the official capacity in which the person has signed is clear from the deed, you will need to send in with the application evidence of the person's authority to act in this capacity, such as the grant of probate when an executor signs.

The execution of deeds by a company's administrator, receiver or liquidator is covered in section 8 Execution of deeds following appointment of a nominee, supervisor, administrator, receiver or liquidator.

4 Execution of deeds by companies registered under the Companies Acts

 

On 6 April 2008 s.44, CA 2006 came into force and applies to deeds executed on or after 6 April 2008 by companies registered under previous Companies Acts and also to companies registered in Northern Ireland.

4.1 Execution by a company under its common seal3

 

Where this form of execution is adopted, the common seal will normally be affixed to the deed in the presence of the company secretary and one director, or two directors, who attest the sealing by countersigning the deed and describing themselves by their respective offices of 'secretary' and 'director' or 'director' and 'director'. If this is done, a purchaser is from 15 September 2005 protected by s.74(1), LPA 19254:

“In favour of a purchaser5 an instrument shall be deemed to have been duly executed by a corporation aggregate if a seal purporting to be the corporation's seal purports to be affixed to the instrument in the presence of and attested by –

(a) two members of the board of directors, council or other governing body of the corporation, or

(b) one such member and the clerk, secretary or other permanent officer of the corporation or his deputy.”

3 This is the common law method of execution by corporations, preserved for companies registered under the Companies Acts by s.36A(2), CA 1985 and for documents executed on and after 6 April 2008 by s.44(1)(a), CA 2006.

4 Prior to 15 September 2005, when the amendment to s.74(1), LPA 1925 by the RRO 2005 came into effect, the protection was limited to cases where the seal is affixed in the presence of a director and secretary.

5 Defined in s.205(xxi), LPA 1925 to mean “a purchaser in good faith for valuable consideration” and to include “a lessee, mortgagee or other person who for valuable consideration acquires an interest in property”, with “valuable consideration” including marriage or civil partnership but excluding “a nominal consideration in money”.

Under s.1(2A), LP(MP)A 1989 introduced by the RRO 2005, merely sealing a document will not make it a deed. It must be clear on the face of a document that it is intended to be a deed. You should use the following attestation clause when sealing a deed by a company, including a deed in one of the forms prescribed by Schedule 1, LRR 2003.

 

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This form of execution will also apply to deeds executed by Northern Ireland companies on or after 6 April 2008.

Most companies, however, have articles of association that authorise the affixing of the company seal to a deed in the presence of people other than a director and the secretary. For example, article 101 of Table A6 provides that:

“The directors may determine who shall sign any instrument to which the seal is affixed and unless otherwise so determined it shall be signed by a director and the secretary or by a second director”.

6 That is, Table A in the Schedule to the Companies (Tables A-F) Regulations 1985 (SI 1985/805).

The protection for purchasers provided by s.74(1), LPA 1925 is limited to cases where the seal is affixed in the presence of a director and the secretary or, from 15 September 2005, two directors. Where a deed is executed by a company affixing its seal in the presence of persons other than a director and the secretary or two directors, we may call for evidence that the people attesting the affixing of the seal are duly authorised by the company's articles to do so. Where their authority also depends upon a decision by the directors of the company, we may in addition require a certified copy of the board resolution.

4.2 Execution by a company otherwise than under a common seal

 

A different method of execution can be used by a company which either has no seal or, having one, chooses not to use it. For deeds executed before 6 April 2008, s.36A(4), CA 1985 provides:

“A document signed by a director and secretary of a company, or by two directors of a company, and expressed (in whatever form of words) to be executed by the company has the same effect as if executed under the common seal of the company.”

S.36A(6), CA 1985 provides protection for purchasers where a document is executed in the following fashion.

“In favour of a purchaser a document shall be deemed to have been duly executed by a company if it purports to be signed by a director and the secretary of the company, or by two directors of the company”7.

7 The sub-section goes on to define a 'purchaser' as 'a purchaser in good faith for valuable consideration' including 'a lessee, mortgagee or other person who for valuable consideration acquires an interest in property'.

Where the deed in question is a transfer of registered land or other instrument whose form is prescribed, the following attestation clause should be used.

 

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The above form of execution can be used for deeds executed on or after 6 April 2008 by virtue of s.44(2)(a) and (3), CA 2006. This form of execution will also apply to deeds executed by Northern Ireland companies on or after 6 April 2008.

In addition for deeds executed on or after 6 April 2008 s.44(2)(b), CA 2006 provides that a company may execute a document under the law of England and Wales or Northern Ireland by a single director if that signature is witnessed and attested.

Where the deed in question is a transfer of registered land or other instrument whose form is prescribed, the following attestation clause should be used.

 

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If a deed is lodged for registration that does not have the common seal affixed and purports to have been:

• executed on behalf of the company by signatories
  
• with descriptions other than that of director and secretary, or two directors
  
• executed on or after 6 April 2008 on behalf of the company by a signatory with a description other than that of director where the signature is witnessed and attested
  

we will require evidence to be produced to show that the deed has been duly executed. If such evidence cannot be produced we will insist that the deed is executed correctly, either under the common seal or by following the procedure set out in s.36A(4), CA 1985 for documents executed before 6 April 2008 or s.44 (4), CA 2006 for documents executed on or after 6 April 2008.

 

The same will apply to a deed lodged for registration that purports to have been executed on behalf of the company by people who lack any description. The exception is that if it can be shown by extrinsic evidence that the signatures are those of people who were in fact a director and the secretary, two directors, or a single director if the signature is witnessed and attested, of the company at the date of execution, then we may be able to accept the deed as validly executed.

4.3 Delivery

 

As with other deeds, a deed which has been executed by a company must also be delivered in order to be effective.

A document executed by a company that makes it clear on its face that it is intended by the people making it to be a deed is presumed to have been delivered on execution unless a contrary intention is proved (s.46, CA 2006).

In practice, we assume that a document has been delivered as a deed unless there is some indication to the contrary. So if, for example, the words of execution have been modified to provide that delivery has not taken place, or that delivery is not to be presumed until some condition has been fulfilled, we will require evidence that delivery has subsequently taken place.

4.4 Execution where the director or secretary is also a company

 

The seal of the executing company needs to be affixed to the deed “in the presence of and attested by” the director and secretary or, from 15 September 2005, two directors (s.74(1), LPA 1925, see 4.1 Execution by a company under its common seal). A corporate director or secretary must act through the agency of a real person. That person is required to be physically present at the affixing of the seal and must then attest the affixing with their signature. We suggest the following words of execution (amended as necessary) be used where the director or secretary is also a company.

 

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8 Until 15 September 2005 the seal should be affixed to the deed in the presence of and attested by a director and the secretary.

When the executing company is executing a deed on or after 6 April 2008 without using a common seal in accordance with s.44, CA 2006 the following form of execution may be used.

 

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4.5 Execution by directors/secretaries on behalf of several companies

 

From 15 September 2005, where a person who is a director or secretary of two or more companies executes a deed on behalf of them all, such person must sign the deed separately for each company (s.36A(4A), CA 1985 and s.44(6), CA 2006). It is essential, however, that the words of execution are drafted carefully as otherwise we may need proof that the signatories have the relevant status within each company. An attestation clause along the following lines should, therefore, be used.

 

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In addition to the above form of attestation, for deeds executed on or after 6 April 2008 in accordance with s.44(2)(b), CA 2006, the following form of attestation may be used.

 

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4.6 Execution by Scottish companies registered under the Companies Acts

 

The question of whether a disposition of land in England and Wales is formally valid must be determined in accordance with the lex situs, that is, the law of England and Wales. It is our view, therefore, that the requirements for an effective transfer etc. of registered land are the same where the disposition is by a Scottish company registered under the Companies Acts as for a disposition by English and Welsh companies so registered.

S.48, CA 2006 provides that “a document signed or subscribed by or on behalf of the company in accordance with the provisions of the Requirements of Writing (Scotland) Act 1995 shall have effect” as if executed by a company affixing its common seal. However, the section begins: “The following provisions form part of the law of Scotland only.” It is difficult to see, therefore, how s.48, CA 2006 can be relevant where it is registered land that is being disposed of.

The Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009 includes provisions as to execution by overseas companies, but a Scottish company is not an overseas company.

5 Execution of deeds by unregistered companies

 

 

 

An unregistered company9 is a body incorporated in and having a place of business in Great Britain, except:

• a body incorporated by or registered under any public general Act of Parliament
  
• any body not formed for the purpose of carrying on a business that has for its objects the acquisition of gain by the body or its individual members
  
• any body for the time being exempted by direction of the Secretary of State.
  

9 The definition which follows is derived from s.1043(1), CA 2006.

 

In practice, unregistered companies are usually incorporated either by royal charter or private Act of Parliament and of a local character, although some large companies, such as certain insurance companies, fall into this category. In transfers of registered land and other instruments whose form is prescribed, the attestation clause should be in the form set out in section 4.1 Execution by a company under its common seal where the unregistered company executes using its common seal. We will need to see the statute, charter or other document of constitution of the company when other forms of attestation clause are adopted.

An unregistered company can make use of the same alternative method of execution as a company registered under the Companies Acts10. So an unregistered company may execute without using its seal by arranging for a director and its secretary, or two directors, to sign on its behalf. In the case of a transfer of registered land or other instrument whose form is prescribed, the attestation clause must be in the form set out in section 4.2 Execution by a company otherwise than under a common seal.

10 Companies (Unregistered Companies) Regulations 2009 (SI 2009/2436). The regulations apply s.44, CA 2006 to unregistered companies, and revoke previous regulations.

For deeds executed on or after 1 October 2009 an unregistered company may also execute deeds by a single director if that signature is witnessed and attested, using Form D(ii), schedule 9, LRR 2003.

6 Execution of deeds by other corporations incorporated in the UK

 

6.1 General

 

A corporation is either a corporation sole or aggregate. A corporation sole is an office, such as 'bishop', that has a legal personality separate from the particular holder of the office for the time being. A corporation aggregate is a body of persons that has a legal personality separate from the particular members of the body for the time being.

This section is concerned with corporations aggregate other than companies registered under the Companies Acts and unregistered companies. So among the corporations this section does cover are those incorporated by or registered under public general Acts other than the Companies Acts; this includes building societies, industrial and provident societies, incorporated friendly societies, higher and further education corporations, the governing bodies of maintained schools and local authorities.

The relaxation of the common law requirement for a deed to be executed under seal, which enables sealing to be dispensed with in the case of deeds executed by individuals, does not extend to corporations sole (s.1(10), LP(MP)A 1989). The statutory provision (s.44(2), CA 2006) allowing companies to execute by a signature on behalf of the company does not apply to the corporations aggregate with which this section is concerned. We will, therefore, require that a corporation sole or aggregate executes under seal except where the applicant is able to point to some specific statutory provision in relation to the corporation concerned.

If the corporation is a corporation aggregate and the attestation clause is in the form set out in section 4.1 Execution by a company under its common seal11, we will normally accept the deed without further evidence – s.74(1), LPA 1925 will apply in favour of a purchaser.

11 It will be necessary to adapt this clause if the member of the governing body is not a 'director' or the permanent officer is not the 'secretary': see section 7.1 Execution under common seal.

The legislation or other document (such as a royal charter) under which the corporation is incorporated will normally provide for it to have a corporate seal and for the use of the seal in the execution of deeds. If the corporation is authorised to execute a deed by affixing its seal other than in accordance with s.74(1), and such a method of execution is adopted, then we will need to see the legislation or document of incorporation or regulating its affairs12. If, however, incorporation is under the provisions of a public general Act, we will not require a copy of the legislation to be lodged with the deed, although we would ask that reference is made to the appropriate section or sections of the legislation in a covering letter sent with the deed.

12 Such a corporation, if it regularly deals with registered land, can seek to lodge the relevant document of incorporation with our Commercial Arrangements Section at Land Registry Head Office (see section 11 Special arrangements for details). We may then be able to issue a facility letter which, if its terms are followed in individual cases, will avoid the need to lodge a copy of the corporation's document of incorporation or regulating its affairs in each case.

 

 

If a deed is lodged for registration that does not have the common seal affixed and purports to have been:

• executed on behalf of the corporation by signatories
  
• with descriptions other than as provided for in the relevant statutory provision allowing for execution without a common seal
  

we will require evidence to be produced to show that the deed has been duly executed. If such evidence cannot be produced we will insist that the deed is executed correctly, either under the common seal or by following the procedure set out in the relevant statutory provision. The same will apply to a deed lodged for registration that purports to have been executed on behalf of the corporation by people who lack any description.

 

6.2 Limited liability partnerships

 

A limited liability partnership is a body corporate, with legal personality separate from that of its members, formed by being incorporated under s.1(2), Limited Liability Partnerships Act 2000.

Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009 (SI 2009/1804) applies ss.44-47, CA 2006 to limited liability partnerships, so they may execute deeds as provided by s.44, CA 2006. The regulations modify s.44, CA 2006 so that the references to a director and the secretary, or two directors, of the company are to be read as references to two members of the limited liability partnership (Regulation 4).

We suggest that you use the following attestation clause where a deed is to be executed by a limited liability partnership without using a common seal, acting by two members.

 

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We suggest that you use the following attestation clause where a deed is to be executed by a limited liability partnership, without using a common seal acting by a single member.

 

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If instead the limited liability partnership uses a seal, we can accept this provided the attestation clause is as in section 4.1 Execution by a company under its common seal, but with two members witnessing the affixing of the seal.

6.3 Building societies

 

Under ss.5(2)-(4), Building Societies Act 1986, building societies are corporate bodies and so a purchaser from a building society can rely on the protection given by s.74(1), LPA 1925. If, therefore, the attestation clause is in the form set out in section 4.1 Execution by a company under its common seal, we will accept the deed.

 

 

We will normally be able to accept a form DS1 or form DS3 where:

• the seal is affixed to the form and attested in accordance with s.74(1)
  
• the seal is affixed to the form in the presence of and attested by an individual who is described as acting by authority of the board of directors, or
  
• the form is signed by an individual who is described as duly authorised by the board of directors.
  

Similarly, we will normally be able to accept a vacating receipt endorsed on an unregistered building society charge where it is sealed or signed in any of the three ways above13.

 

13 S.6C, Building Societies Act 1986; Schedule 2A, paragraph 1(1); Building Societies (Prescribed Form of Receipt) Rules 1997 (SI 1997/2869).

6.4 Industrial and provident societies

 

Industrial and provident societies are registered under the Industrial and Provident Societies Act 1965.

Many (but not all) housing associations are industrial and provident societies.

 

 

They may execute deeds under their common seal. Where they do so the attestation should show that the signatories authenticating the seal are duly authorised to do so under the society’s rules. Alternatively, from 20 October 2003, the deed may be:

• signed by a member of the committee and its secretary or by two members of the committee
  
• expressed (in whatever form of words) to be executed by the society (as provided for by section 29C, Industrial and Provident Societies Act 1965 as inserted by the Co-operatives and Community Benefit Societies Act 2003).
  

7 Execution of deeds by foreign corporations

 

 

We are concerned here with corporations from outside the UK.

With the coming into effect of the Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009 (SI 2009/1917) an overseas company can execute in one of three ways14. The regulations apply s.44, CA 2006 to overseas companies with some amendments.

14 There is a possible fourth way, which is to rely on s.74(3), LPA 1925, but this is much the same as the third way authorised by the regulations with the added requirement that the signature be witnessed.

Whichever method is used, we need to see evidence of the corporate status of the corporation, unless it is already the proprietor of the land or charge and one of the methods of execution set out in this section is used15.

15 See Ruoff & Roper, Registered Conveyancing, 39.010, for the requirements if the foreign company is being registered as the proprietor of registered land or of a registered charge.

The evidence might consist of a letter from a qualified lawyer practising in or familiar with the domestic legislation of the territory of incorporation (with a translation if the letter is not in English or Welsh). Such a letter should confirm that the corporation has a separate legal personality and that its ownership of property is separate from the ownership of its members and officers. See Von Hellfeld v Rechnitzer and Mayer Freres & Co [1914] 1 Ch. 748, 754-755.

7.1 Execution under common seal

 

A corporation possessing a common seal may execute deeds using that seal. The points made in section 4.1 Execution by a company under its common seal apply if a deed is executed in this way.

If the witness who is a permanent officer of the corporation is not a 'clerk', 'deputy clerk', 'secretary' or 'deputy secretary', add to the description below the signature a note to the effect that the signatory is a permanent officer of the corporation, eg 'Chief General Manager (a permanent officer of the corporation)'. Likewise, if the witness who is a member of the governing body has a title which does not make this clear, add an appropriate note to the description below the signature, eg 'Member of the Senate (being the governing body of the corporation)'.

A foreign corporation may be able to execute in this way even though it has not hitherto had a seal (perhaps because the sealing of deeds is unknown to the law of its domicile). Provided there is nothing in the corporation's constitution or domestic law to fetter its powers in this respect, it would appear to be open to the board, council or other governing body to adopt a seal for the purpose of executing deeds in relation to property in England and Wales. It could use a wafer seal16. The attestation clause in the form set out in section 4.1 Execution by a company under its common seal should then be used, adapted as necessary (see the previous paragraph).

16 The Law Commission considered that this should be effective: The Execution of Deeds and Documents by or on behalf of Bodies Corporate (Law Com No 253), 4.33.

7.2 Execution in a manner permitted by the local law

 

Under Regulation 4 of the Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009 the deed can be executed “in any manner permitted by the laws of the territory in which the company is incorporated for the execution of documents by such a company”. If this method is used, we shall require evidence (which might include a letter from a qualified lawyer practising in or familiar with the domestic legislation of the territory of incorporation) to establish that the manner of execution used is indeed effective according to the law of the territory of incorporation. Any documentation in a language other than English or Welsh will need to be accompanied by a translation.

7.3 Execution by signature of authorised person(s)

 

The Regulations apply s.44(2), CA 2006 amended as follows.

“(2) A document which:

(a) is signed by a person who, in accordance with the laws of the territory in which an overseas company is incorporated, is acting under the authority (express or implied) of the company, and

(b) is expressed (in whatever form of words) to be executed by the company,

has the same effect in relation to that company as it would have in relation to a company incorporated in England and Wales or Northern Ireland if executed under the common seal of a company so incorporated.”

S.44(3), CA 2006 is also amended to read:

“(3) In favour of a purchaser a document is deemed to have been duly executed by an overseas company if it purports to be signed in accordance with subsection (2).”

In the case of a transfer of registered land, or other instrument whose form is prescribed, we require the following attestation clause if this form of execution is used.

 

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8 Execution of deeds following appointment of a nominee, supervisor, administrator, receiver or liquidator

 

You should refer to Practice Guide 35 – Corporate insolvency and Practice Guide 36 – Administration and receivership for fuller guidance on cases involving the execution of deeds by administrators, receivers and liquidators.

8.1 Voluntary arrangements – appointment of a nominee or supervisor

 

It is possible for a company in difficulties to enter into a voluntary arrangement or composition with its creditors (see generally ss.1–7, IA 1986). A person is appointed to supervise the implementation of the scheme and is known as a 'nominee' until the scheme is approved by a meeting of creditors and a meeting of the company, whereupon they become a 'supervisor'. Unless the scheme is such that the company's land has been transferred to the nominee or supervisor as trustee, the land remains vested in the company and it must execute deeds in the ordinary way.

8.2 Administration orders

 

Where a company is, or is likely to become, unable to pay its debts an administrator may be appointed to manage its affairs, business and property. The appointment may be made by the court, by the holder of a qualifying floating charge, or by the company itself or its directors (see generally s.8 and Schedule B1, IA 1986, as amended by the Enterprise Act 2002). The property of the company remains vested in the company but the administrator is authorised to use the company's seal and to execute deeds in the name and on behalf of the company (Schedule B1, paragraph 60, and Schedule 1, paragraphs 8 and 9, IA 1986).

Following the making of an administration order, we can accept a deed executed by the administrator in either of the following forms17.

17 The second form of attestation clause relies on the statutory provisions in the IA 1986 being read with s74(3), LPA 1925.

 

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You need to lodge evidence of the appointment of the administrator with the deed unless the appointment is already noted in the register – see Practice Guide 36 – Administration and receivership.

8.3 Receivership

 

Debenture holders can appoint a receiver under s.101(1)(iii), LPA 1925, unless a contrary intention is expressed. Such a receiver has no statutory power to execute on behalf of the company.

However, a debenture will usually contain an express power to appoint a receiver and give the receiver the right to sell or otherwise dispose of the company's property, with the power to execute in the name and on behalf of the company. We suggest the following form of execution be used by such a receiver

 

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Where an application is made for registration based on a disposition by a receiver, we require:

• the debenture or a certified copy of it, unless the debenture has been registered or noted
  
• evidence that the power of appointment of the receiver has arisen (usually a certificate by or on behalf of the debenture holders that the power of appointment has arisen will be sufficient), and
  
• a certified copy of the appointment of the receiver.
  

8.4 Administrative receivership

 

 

 

 

An administrative receiver is either:

• a receiver or manager of the whole (or substantially the whole) of a company's property appointed by or on behalf of holders of any debentures of the company secured by a charge which, as created, was a floating charge, or such a charge and one or more other securities, or
  
• a person who would be such a receiver or manager but for the appointment of some other person as the receiver of part of the company's property (s.29(2), IA 1986).
  

An administrative receiver cannot be appointed by the holder of a debenture dated on or after 15 September 2003, notwithstanding any provision contained in the debenture (s.72A, IA 1986, which came into force on that day). This is subject to limited exceptions set out in ss.72B to 72GA, IA 1986.

 

An administrative receiver is authorised to use the company's seal and to execute deeds in the name and on behalf of the company (s.42(1) and paragraphs 8 and 9 of Schedule 1, IA 1986).

We can accept a deed executed by the administrative receiver in either of the following forms18.

18 The second form of attestation clause relies on the statutory provisions in the IA 1986 being read with s.74(3), LPA 1925.

 

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Where an application is made for registration based on a disposition by an administrative receiver, we require the documentation and evidence referred to in section 8.3 Receivership.

8.5 Liquidation

 

A disposition made by a company in liquidation may be executed either by the liquidator affixing the common seal and signing the document to attest that the seal has been affixed in their presence, or by the liquidator signing the document as a deed in the name and on behalf of the company19.

19 Ss.165, 167 and Schedule 4, paragraph 7, 1986, read with s.74(3), LPA 1925.

So, the following attestation clauses might be used.

 

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You will need to send in evidence of liquidation with the deed (see Practice Guide 35 – Corporate insolvency, in particular, section 3).

9 Execution of deeds by trustees of charities

 

You should refer to Practice Guide 14 – Charities for fuller guidance on cases involving the execution of deeds by charity trustees.

9.1 Where the charity trustees are individuals

 

The general principle that all owners of a legal estate must execute a disposition applies to charity trustees. However, s.333, Charities Act 2011 allows charity trustees to delegate to no fewer than two of their number authority to execute, in the names of and on behalf of all the trustees, any deed giving effect to a transaction to which the trustees are a party.

 

 

We will not require evidence of the delegation if:

• the disposition is for money or money's worth and there is no reason to doubt the good faith of the person in whose favour it is made
  
• the deed states that it has been executed in pursuance of s.333, Charities Act 2011.
  

In these circumstances, there is a conclusive presumption in the purchaser's favour that the deed has been duly executed (s.333(5), Charities Act 2011).

 

To meet the second requirement listed, we suggest that transfers contain the following clause (which can also be used in conveyances and other types of deed, suitably modified).

This transfer is executed by AB and CD being two of the registered proprietors of the land in this title as charity trustees and on behalf of all the charity trustees under a general authority given pursuant to s.333 of the Charities Act 2011.

Alternatively, the following attestation clause can be used.

 

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9.2 Where the charity trustees are incorporated under Part 12, Charities Act 2011

 

Where charity trustees have been made a body corporate by s.251, Charities Act 2011 and the body has a common seal, a disposition can be executed by affixing that common seal (s.260(2), Charities Act 2011). We will not question this form of execution if the common seal appears to have been affixed in the presence of appropriate officers of a charity so as to allow for the operation of s.74(1), LPA 1925. Use the attestation clause in section 4.1 Execution by a company under its common seal, adapted as necessary.

 

 

There are two other possible methods of execution (ss.260(3) and 261(1), Charities Act 2011) that might be used either where the body corporate does not have a common seal or chooses not to use it.

• The deed may be executed by a majority of the individual charity trustees, the deed being expressed to be executed by the body (s.260(3)(a)).
  
• The deed may be executed under an authority conferred on two or more trustees to execute in the name and on behalf of the body (s.261(1)).
  

9.3 Where the charity trustee is another body corporate

 

 

Where the charity is a body incorporated other than under Part 12 of the Charities Act 2011, refer to sections 4 or 6 above, as appropriate, for guidance on execution.

10 Execution under a power of attorney

 

10.1 General points

 

A power of attorney is a deed by which one person (the donor) gives another person (the attorney) power to act on their behalf. This section is concerned with transfers and other deeds being executed by attorneys20.

20 Where an agent is given power to execute a deed, that power must itself be contained in a deed: Powell v London & Provincial Bank (1893) 2 Ch 555. Hence the references in this section are to powers of attorney, as opposed to written or verbal agency agreements. This guide does not deal with powers of attorney granted under the law of another jurisdiction. In such cases we are likely to require a letter from a qualified lawyer practising in or familiar with the relevant law confirming the effectiveness of the power for the purposes of the execution of the deed concerned. Any such letter and supporting documentation in a language other than English or Welsh will need to be accompanied by a translation.

A power of attorney will either be for a specific purpose or general. If it is for a specific purpose you will need to ensure that it contains clear authority to enter into the transaction in question, as powers of attorney are interpreted strictly. A general power of attorney must follow the form set out in the PAA 1971 or be in a form to the like effect and expressed to be made under the PAA 197121.

21 PAA 1971, Schedule 1, s.10(1). The prescribed form describes itself as a general power of attorney and states that the donor appoints the donee or the donees jointly or jointly and severally to be their attorney or attorneys in accordance with the s.10, PAA 1971.

 

 

Any deed lodged for registration that has been executed under a power of attorney must be accompanied by one of the following.

• Form 122.
  
• The original power.
  
• A sufficient copy of any power that you are relying on to establish that a document lodged with your application is validly executed. See section 7 of Practice Guide 9 – Powers of attorney and registered land for further details.
  

22 R.61 and Schedule 3, LRR 2003.

 

 

 

We will retain the evidence lodged in our files. If, therefore, you need to keep the original you should lodge a copy with your application. S.3, PAA 1971 prescribes a strict method of proving the contents of a power of attorney. To follow this procedure a solicitor, notary public or stockbroker must certify:

• at the end of a photocopy of the power that it is a true and complete copy of the original, and
  
• on each page of the photocopy, if the power includes more than one page, that the page is a true and complete copy of the corresponding page of the original.
  

In practice, we will usually accept a photocopy that is certified by a conveyancer to be a true copy of the original power. However, in any case of doubt, we would need to ask you to produce either the original or the more formal certified copy mentioned above.

 

10.2 Delegation by trustees

 

Trustees can only delegate their duties and powers (such as executing a transfer of trust land) when they have authority to do so. However, several statutory provisions now allow for delegation.

Note that for beneficial interests to be overreached the attorney must act with at least one other person23. If a transfer is lodged executed by only one person, both as proprietor and as attorney for the other proprietor or as attorney for all the proprietors, we will return it for execution by the donor or donors. If the transfer is not re-executed we will enter a restriction in the register to protect any beneficial interests that may subsist.

23 S.7, TDA 1999. As will be seen, however, there is no overreaching where capital money is paid to beneficiary attorneys under s.9, TLATA 1996, even though there may be more than one of them.

The statutory provisions allowing for delegation by trustees can be divided into those allowing for delegation by individual trustees and those allowing for collective delegation by the trustees.

10.2.1 Individual delegation

 

S.25, Trustee Act 1925

Under this section, a trustee can delegate the exercise of their powers for a maximum of 12 months from the start of the delegation or, if there is no provision for when the delegation starts, for 12 months from the execution of the power by the trustee. The trustee must, before or within seven days of giving such a power of attorney, give notice of it to each of the co-trustees (if any) and to any person who has power under the trust instrument to appoint a new trustee (if any). The section sets out a form of general power in respect of a trustee's function (s.25(6), Trustee Act 1925).

S.1, Trustee Delegation Act 1999

This section allows a power of attorney to be used in relation to trust property if there is no indication in the power that the donor does not intend the attorney to exercise trustee functions and, at the time the power of attorney is used, the donor has a beneficial interest in the property. This delegation is not limited in duration and the notice requirements under s.25, Trustee Act 1925 do not apply.

A signed statement by the attorney made within three months of the date of the document will be conclusive evidence of the donor having had a beneficial interest at that time (s.2, TDA 1999). The most convenient place for the attorney to make this statement is in the document.

(1) A clause along the following lines may be included in the document.

(Name of attorney) confirms that (name of donor of power) has a beneficial interest in the property at the date of this (transfer, charge etc).

(2) The statement may be incorporated into one of the attestation clauses in section 10.6 Execution of deeds by attorneys, for example:

 

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(3) The words of signature may be expanded to:

John Brown by his attorney Jane Brown who confirms that the donor has a beneficial interest in the property at the date hereof.

The written statement can also be made separately as long as it is dated within three months of the date of the document.

If such a statement cannot be produced in any of these forms, we will consider other evidence that the donor had a beneficial interest at the relevant time. A statutory declaration or statement of truth (see Practice Guide 73 – Statements of truth) to that effect by a responsible person with full knowledge of the facts may be acceptable in some cases.

The document will need to be executed by the donor of the power in the absence of sufficient evidence of the donor's beneficial entitlement.

10.2.2 Collective delegation

 

S.9, Trusts of Land and Appointment of Trustees Act 1996

All the trustees of a trust of land may jointly delegate their functions to a beneficiary or beneficiaries of full age and beneficially entitled to an interest in possession. The delegation may be for any period or indefinite24.

24 A power of attorney under this section cannot be an enduring power of attorney or a lasting power of attorney: s.9(6), TLATA 1996.

However, these beneficiary attorneys are not treated as trustees for the purposes of receiving capital money, which means that the trustees themselves need to join in any disposition under which capital money arises if beneficial interests are to be overreached (s.9(7), TLATA 1996). This type of power is only going to be appropriate, therefore, when no capital money is passing, eg on the grant of a lease without payment of a premium.

Statutory protection is given to a third party who in good faith deals with an attorney to whom trustee powers were delegated as a beneficiary but who in fact was not a beneficiary to whom the trustee functions could be delegated. The attorney is presumed to have been a person to whom the trustee functions could be delegated unless the third party had knowledge that they were not such a person (s.9(2), TLATA 1996). In consequence, where a beneficiary has executed a deed under a power of attorney, we may require a statutory declaration or statement of truth from this third party to confirm that they acted in good faith and had no knowledge at the time of completion of the transaction that the attorney was not a person to whom the functions of the trustees in relation to the land could be delegated. Alternatively, the third party's conveyancer can provide a certificate to the effect that at the time of completion their client had no such knowledge (r.63, LRR 2003, and forms 2 and 3).

S.11, Trustee Act 2000

This section allows for the trustees “to authorise any person to exercise any or all of their delegable functions as their agent”. The delegable functions are all the trustees' powers and duties other than (a) the distribution of trust assets, (b) the power to allocate fees between capital or income, © the power to appoint trustees or (d) any power conferred by any other enactment or the trust instrument permitting delegation25. The people who may act as agents include one or more of the trustees themselves, but do not include a beneficiary (even if the beneficiary is also a trustee) (s.12, Trustee Act 2000).

25 S.11(2), Trustee Act 2000. The delegable functions are different in the case of a charitable trust: s.11(3).

Third parties who deal with these agents have the protection that a failure by the trustees to act within the limits of the powers conferred by the section will not invalidate the authorisation (s.24, Trustee Act 2000).

10.3 Enduring powers of attorney

 

 

 

The Enduring Powers of Attorney Act 1985 was repealed by the MCA 200526. Enduring powers created before 1 October 2007 will continue to have effect but become subject to the provisions of Schedule 4, MCA 2005. New enduring powers cannot be created after 30 September 2007. Those already created must be in one of the following prescribed forms according to the date of execution of the power and language used.

• The Enduring Powers of Attorney (Prescribed Form) Regulations 1986.
  
• The Enduring Powers of Attorney (Prescribed Form) Regulations 1987.
  
• The Enduring Powers of Attorney (Prescribed Form) Regulations 1990 (both in its original form and as amended by the Enduring Powers of Attorney (Prescribed Form)(Amendment) Regulations 2005).
  
• The Enduring Power of Attorney (Welsh Language Prescribed Form) Regulations 2000.
  

26 5.66(1)(b),MCA 2005.

 

The general rule is that a power of attorney can be granted for an indefinite period27 but will automatically be revoked if the donor lacks capacity. However enduring powers of attorney will continue to be effective even after the donor lacks capacity, provided the required notices have been served on the appropriate relatives and the power has been registered with the Public Guardian as required by MCA 2005.

27 A power of attorney under s.25, Trustee Act 1925, is an exception to this general rule.

If the Public Guardian does not register the power the attorney(s) cannot use it to act on behalf of the donor if they lack capacity.

The Court of Protection may, on the application of an attorney, direct the Public Guardian to register the power of attorney(s) even though notice has not been given as required by MCA 200528.

28 Schedule 4, paragraph 13(3), MCA 2005.

An enduring power must have first been executed as a deed by the donor and then by the attorney. If two or more attorneys are appointed jointly, they must all execute the power. If they are appointed jointly and severally, only one need execute it. However only those joint and several attorneys who have executed the power can act once the donor lacks capacity29.

29 Regs 3 and 4, Enduring Powers of Attorney (Prescribed Forms) Regulations 1990.

If an enduring power of attorney has been registered at the Court of Protection or by the Public Guardian and any order or direction has been made by the court under Schedule 4, paragraph 16, MCA 2005 with respect to the power or to the donor or to the donee, the order or direction, or an official copy or certified copy of the order or direction, must be sent to us with the deed and copy power30.

30 R.61(2), LRR 2003 as amended.

10.4 Lasting powers of attorney

 

Lasting powers of attorney were introduced by the MCA 2005. They have replaced enduring powers as the primary way of choosing a decision-maker to act in the event of loss of capacity. In addition to property and affairs, donors will be able to appoint an attorney to make decisions about their personal welfare for a time when they lack capacity to make such decisions themselves.

Part 1, Schedule 1, LPA 2007 prescribes the form which must be used for a property and affairs lasting power of attorney.

A lasting power of attorney must be executed in accordance with regulation 9, LPA 2007. The donor must sign first in the presence of a witness; the person or persons giving the certificate(s) required by paragraph 2(1)(e) of Schedule 1, MCA 2005 must sign next; and the donee(s) must sign next in the presence of a witness. The donor must not witness any signature required for the power. Similarly, a donee may not witness any signature required for the power other than that of another donee. A person witnessing a signature must sign the instrument and give their full name and address. Signing includes a signature created by making a mark on the deed in the appropriate place.

A lasting power may only be used once it has been registered with the Office of the Public Guardian. A person about to apply for registration must first serve notice in the form set out in Schedule 2, LPA 2007.

If a lasting power of attorney has been registered with the Office of the Public Guardian and any order or direction has been made by the court under ss.22 or 23, MCA 2005 with respect to the power or to the donor or donee, the order or direction, or an official or certified copy of it, must be sent to us with the original or copy power.

10.5 Powers of attorney more than a year old

 

A power of attorney may be revoked either expressly by the donor or impliedly by the death, bankruptcy, mental incapacity of the donor (except in the case of an enduring power or a lasting power) or, where the donor is a body corporate, by its winding up or dissolution31.

31 An important exception to this general rule is a power of attorney that is expressed to be irrevocable and is given to secure a proprietory interest of the donee or the performance of an obligation owed to the donee. Such a power will not be revoked by the donor without the consent of the donee, or by the death etc of the donor, as long as the donee has the proprietory interest or the obligation remains undischarged: s.4(1), PAA 1971.

Where a power has been revoked and a person, without knowledge of the revocation, deals with the donee of the power, the transaction between them will be valid (s.5(2), PAA 1971). Statutory protection is also given in certain circumstances to a purchaser where their interest depends upon the validity of a transaction made between the attorney and another person. It is conclusively presumed that the latter did not at the material time know of the revocation of the power if the transaction took place within 12 months of the date on which the power came into operation or if the person dealing with the attorney, such as a purchaser from the attorney, swears a statutory declaration within three months of completion of the purchase that they did not at the material time know that the power had been revoked32. Similar protection is afforded by the MCA 2005 in relation to enduring powers of attorney, where the power was invalid but has been registered under that Act or the EPAA 1985 (Schedule 4, paragraph 18(4), MCA 2005).

32 S.5(4), PAA 1971. s.9(5), EPAA 1985, provides that knowledge of a donor's revocation of an enduring power of attorney registered under that Act means knowledge of a revocation that has been confirmed by the court.

The legal position being as set out above, we may require a statutory declaration or statement of truth as to non-revocation by the person who dealt with the attorney where the transaction between the attorney and this person is not completed within 12 months of the power of attorney coming into operation. Alternatively, the person's conveyancer can provide a certificate (r.62, and Form 2, LRR 2003 – see section 13 Appendix).

As Trustee Act powers of attorney can only operate for 12 months, evidence of non-revocation is unnecessary for these powers.

10.6 Execution of deeds by attorneys

 

10.6.1 Attorneys who are individuals

 

An attorney who is an individual may execute the deed (whether the donor is an individual or a corporation) either by signing in their own name or in the name of the donor (s.7, PAA 1971; s.74(3), LPA 1925). There is no prescribed attestation clause, but either of the following will be acceptable to us.

 

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10.6.2 Corporate attorneys

 

A corporate attorney may execute a deed in one of three ways.

It may execute using its own seal.

 

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33 From 15 September 2005 the protection for a purchaser provided by s.74(1), LPA 1925 or amended by the RRO 2005 applies where the seal is affixed in the presence of and is attested by a director and the secretary or two directors.

If the corporate attorney has no seal or chooses not to use its seal, it can execute as follows (s.36A(4), CA 1985).

 

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In addition to the above if the corporate attorney is executing a deed without using a common seal on or after 6 April 2008 in accordance with s.44(2)(b), CA 2006 the following form of execution may be used.

 

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The board of directors, council or other governing body of a corporate attorney may appoint an officer to execute the deed in the name of the donor (s.74(4), LPA 1925). A suitable execution clause would be:

 

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10.7 Execution by deputy appointed under the Mental Capacity Act 2005

 

A deputy appointed by the Court of Protection to act on behalf of an individual may execute the deed. There is no prescribed attestation clause, but the following will be acceptable to us.

 

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11 Special arrangements

 

Any organisation that regularly executes deeds either using a form of execution particular to that organisation or a long-standing power of attorney may wish to consider seeking a special arrangement with us. Such an arrangement involves our approving the form of execution or the power of attorney for registration purposes. This should prevent us from continually having to raise requisitions about the validity of the execution or having to see a certified copy of the power of attorney. Please note, however, that we cannot guarantee being able to provide a special arrangement in every case.

If you consider that a client may benefit from such arrangement, you should seek further advice from the Commercial Arrangements Section at Land Registry Head Office. See section 12 Enquiries and suggestions for the full address.

This guide does not in any way affect special arrangements already in force.

12 Enquiries and suggestions

 

If you have a particular concern that is not covered by this guide, please contact Land Registry in advance of the transaction – see Contact details. If the transaction is particularly complex, it may be better if you make your enquiry in writing at the Land Registry office that will process your application.

If you have any comments or suggestions about our guides, please send them to:

Central Operations Group

Land Registry

Trafalgar House

1 Bedford Park

Croydon

CR0 2AQ

(DX 8888 Croydon 3)

You can obtain further copies of this and all our guides free of charge from Customer Support (see Contact details) or you can download them from our website.

13 Appendix

 

13.1 Form 2 – Statutory declaration/certificate/statement of truth as to non-revocation for powers more than 12 months old at the date of the disposition for which they are used (rule 62)

 

Date of power of attorney

Donor of power of attorney

I of

 

do [solemnly and sincerely declare] or [certify] or [state] that at the time of completion of the

 

 

 

to me/my client I/my client had no knowledge –

• of a revocation of the power, or
  
• of the death or bankruptcy of the donor or, if the donor is a corporate body, its winding up or dissolution, or
  
• of any incapacity of the donor where the power is not a valid lasting or enduring power of attorney, or
  

Where the power is in the form prescribed for a lasting power of attorney –

• that a lasting power of attorney was not created, or
  
• of circumstances which, if the lasting power of attorney had been created, would have terminated the attorney's authority to act as an attorney, or
  

Where the power is in the form prescribed for an enduring power of attorney –

• that the power was not in fact a valid enduring power, or
  
• of an order or direction of the Court of Protection which revoked the power, or
  
• of the bankruptcy of the attorney, or
  

Where the power was given under section 9 of the Trusts of Land and Appointment of Trustees Act 1996 –

• of an appointment of another trustee of the land in question, or
  
• of any other event which would have the effect of revoking the power, or
  
• of any lack of good faith on the part of the person(s) who dealt with the attorney, or
  
• that the attorney was not a person to whom the functions of the trustees could be delegated under section 9 of the Trusts of Land and Appointment of Trustees Act 1996, or
  

Where the power is expressed to be given by way of security–

• that the power was not in fact given by way of security, or
  
• of any revocation of the power with the consent of the attorney, or
  
• of any other event which would have had the effect of revoking the power.
  

Where a certificate is given –

 

Signature of conveyancer Date

Print name

Firm name or employer (if any)

Capacity (e.g. acting for…) or

Where a Statutory Declaration is made –

And I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declarations Act 1835.

Signature of Declarant(s) Date

DECLARED at before me, a person entitled to administer oaths.

Name

Address

Qualification

Signature

Where a statement of truth is made –

I believe that the facts and matters contained in this statement are true.

Signature of Date

Print name

Firm name or employer (if any) of any conveyancer signing

Capacity (e.g. acting for…)

WARNING

 

1. If you dishonestly make a statement which you know is, or might be, untrue or misleading, and intend by doing so to make a gain for yourself or another person, or to cause loss or the risk of loss to another person, you may commit the offence of fraud under section 1 of the Fraud Act 2006, the maximum penalty for which is 10 years' imprisonment or an unlimited fine, or both.

2. Failure to complete the form with proper care may result in a loss of protection under the Land Registration Act 2002 if, as a result, a mistake is made in the register.

3. Under section 66 of the Land Registration Act 2002 most documents (including this form) kept by the registrar relating to an application to the registrar or referred to in the register are open to public inspection and copying. If you believe a document contains prejudicial information, you may apply for that part of the document to be made exempt using form EX1, under rule 136 of the Land Registration Rules 2003.

13.2 Form 3 – Statutory declaration/certificate/statement of truth in support of power delegating trustees' functions to a beneficiary (rule 63)

 

Date of power of attorney

Donor of power of attorney

I of

do [solemnly and sincerely declare] or [certify] or [state] that at the time of completion of the

 

 

 

 

to me/my client I/my client had no knowledge –

• of any lack of good faith on the part of the person(s) who dealt with the attorney, or
  
• that the attorney was not a person to whom the functions of the trustees could be delegated under section 9 of the Trusts of Land and Appointment of Trustees Act 1996.
  

Where a certificate is given –

 

Signature of conveyancer Date

Print name

Firm name or employer (if any)

Capacity (e.g. acting for...); or

Where a Statutory Declaration is made –

And I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declarations Act 1835.

 

 

Signature of Declarant Date

DECLARED at before me, a person entitled to administer oaths.

Name

 

 

Address

Qualification

Signature or

Where a statement of truth is made –

I believe that the facts and matters contained in this statement are true.

Signature of Date

Print name

Firm name or employer (if any) of any conveyancer signing

Capacity of any conveyancer signing (e.g. acting for…)

WARNING

 

1. If you dishonestly make a statement which you know is, or might be, untrue or misleading, and intend by doing so to make a gain for yourself or another person, or to cause loss or the risk of loss to another person, you may commit the offence of fraud under section 1 of the Fraud Act 2006, the maximum penalty for which is 10 years' imprisonment or an unlimited fine, or both.

2. Failure to complete the form with proper care may result in a loss of protection under the Land Registration Act 2002 if, as a result, a mistake is made in the register.

3. Under section 66 of the Land Registration Act 2002 most documents (including this form) kept by the registrar relating to an application to the registrar or referred to in the register are open to public inspection and copying. If you believe a document contains prejudicial information, you may apply for that part of the document to be made exempt using form EX1, under rule 136 of the Land Registration Rules 2003.

Land Registry advisory policy

 

 

We offer advice to our customers through our publications and Customer Support information and through the day-to-day handling of applications.

We provide factual information including official copies of registers, title plans and documents, searches and details of our forms and fees.

 

 

We provide procedural advice to explain how the land registration system works and how to make applications correctly. This includes:

• advice in advance of an application, where this is requested
  
• where an application is defective, advice as to the nature of the problem and what options, if any, are available to put it right
  
• an approval service for estate layout plans and certain other land registration documents.
  

There are limits to the advice that we will provide. We will not provide legal advice.

 

 

 

This means that:

• we will not approve the evidence to be produced in support of a registration application before we receive the application
  
• apart from procedural advice, we will not advise on what action to take
  
• we will not recommend a professional adviser but can explain how to find one.
  

We provide advice only about real cases, not about theoretical circumstances. We will not express a view on questions where the law is complex or unclear except where the question arises on a live registration application.

 

 

 

In providing this factual information and procedural advice we will:

• be impartial
  
• recognise that others may be affected by what we say
  
• avoid any conflict of interest.
  

Edited March 26, 2013 by citizenB

[tmb70]

Or the same is on this link http://www.landregistry.gov.uk/professional/guides/practice-guide-8

 

Now can an individual assume a lender being a bank is not a Building Society but a Company (lets say it is Something Bank PLC OR a subsiduary)?

 

So in the event the Deed has not been executed as per HMLR, is it then null & void?

[tmb70]

The conclusion is:

 

"The lender does not have to sign the Deed", as per telecon with HMLR.

[applecart]

RE Post no 25 - I believe this is based around a 'forged' signature.

 

Why do you say that tmb70?

 

Apple

[tmb70]

Hi apple, if I read it correctly that was how I interpreted it!

 

What are you comments on my telecon with HMLR, where they state no signature is required from the lender?

[applecart]

Hi

 

Your post 28, 29, 30, provide valuable input, you have been busy....... - How do you come to think that these are relevant to your situation or indeed for others readers?

 

Apple

[applecart]

Hi apple, if I read it correctly that was how I interpreted it!

 

What are you comments on my telecon with HMLR, where they state no signature is required from the lender?

 

Only to say that the staff who deal with 'registering' legal charges are not concerned with the Lenders signature...There is no issue with what you have been told afterall, they do not need to see the Lenders signature...It's up to you to argue whether the Deed is legal or not and for that you go to court or to the Adjudicator...

 

Apple

[tmb70]

Hi Apple,

 

I just want to achieve clarity on something that in my mind is 'black and white', that is:

 

1. A signature from the borrower only constitutes a challenge

2. Signatures from both parties does not constitute a challenge

 

From my research I cannot and have not found anything in law or cases etc that actually says '1.', the only conclusive fact I have discovered is HMLR have stated verbally over the phone that the lender does not have to sign the deed, only the borrower.

 

This is not the result I want!

[tmb70]

Only to say that the staff who deal with 'registering' legal charges are not concerned with the Lenders signature...There is no issue with what you have been told afterall, they do not need to see the Lenders signature...It's up to you to argue whether the Deed is legal or not and for that you go to court or to the Adjudicator...

 

Apple

 

Unfortunately I am unable to convince myself there is an argument, however I am open to be proven wrong.

 

Please can you (or someone) tell me how to argue the Deed is in breach and unenforceable?

[applecart]

Hi apple, if I read it correctly that was how I interpreted it!

 

Oh I see.... the forgery element was discounted by the Adjudicator in the case...the decision was not to do with 'forgery'....the decision gives valuable insight into how the Adjudicator will look at cases brought before him where the Lender or any person who is looking to secure land by way of deed and fails to do so....This was what you asked me for - or did I misinterpret your request???

 

What are you comments on my telecon with HMLR, where they state no signature is required from the lender?

 

I've responded to your telcon with HMLR above...

 

Hope this helps?

 

 

Apple

[applecart]

Hi Apple,

 

I just want to achieve clarity on something that in my mind is 'black and white', that is:

 

1. A signature from the borrower only constitutes a challenge

2. Signatures from both parties does not constitute a challenge

 

From my research I cannot and have not found anything in law or cases etc that actually says '1.', the only conclusive fact I have discovered is HMLR have stated verbally over the phone that the lender does not have to sign the deed, only the borrower.

 

This is not the result I want!

 

I hear you...may I ask....What result are you looking for??

 

Apple

[applecart]

Unfortunately I am unable to convince myself there is an argument, however I am open to be proven wrong.

 

Please can you (or someone) tell me how to argue the Deed is in breach and unenforceable?

 

All that you requested in regard to this topic is already contained within this thread...is there something more that you need..?

 

 

Apple

[tmb70]

Dear Apple,

 

Perhaps I have misunderstood your point(s) in some of the earlier posts on this thread where I believe there was indication that in the event there were 2 signatures, lender and borrower, it was nigh on impossible to challenge whereas with only the lender signature it would give good reason to challenge.

[applecart]

Dear Apple,

 

Perhaps I have misunderstood your point(s) in some of the earlier posts on this thread where I believe there was indication that in the event there were 2 signatures, lender and borrower, it was nigh on impossible to challenge whereas with only the lender signature it would give good reason to challenge.

 

There's a lot of information to digest....don't take this the wrong way, but....take time out...look again at what has been said and keep this topic in prospective...Which is....:

 

Does the Deed that I signed for the mortgage between me and my lender create a binding, enforceable relationship? or is it Void, thus unenforceable?

 

Even what you have said above evidences a wee bit of confusion...so, please...take time out and look again at the info...

 

Then, let's communicate again from there : )

 

Apple

[tmb70]

Hi Apple,

 

Nope, not taken the wrong way, I am obviously missing something which is staring me in the face?

 

I need to remove my blinkers!

 

Just struggling...

[tmb70]

Just to confirm the Deed doc, as per OC form has the borrowers signature (sole not joint) with a witness signature.

[applecart]

Hi Apple,

 

Nope, not taken the wrong way, I am obviously missing something which is staring me in the face?

 

I need to remove my blinkers!

 

Just struggling...

 

Not at all....it's simply that there is a lot to take in and the implications are huge - It is not necessarily the case that all lenders have failed to create an enforceable agreement with the borrower.....so it makes sense to be cautious....likewise, it makes sense to be open to the reality that there are lenders out there who have intentionally failed to sign the deed.......so, blinkers will not assist you : )

 

Apple

[applecart]

Just to confirm the Deed doc, as per OC form has the borrowers signature (sole not joint) with a witness signature.

 

 

Please confirm....you have a copy of the deed you signed in your possession...is that copy one sent by your solicitor or a copy as applied for, from HMLR??

 

 

Apple

[tmb70]

Hi Apple,

 

Just to confirm the deed document is a copy from the HMLR, this was requested as per the OC form.

[tmb70]

Or as per you second point in your post above.

[applecart]

Hi

 

Ok...The official copy is as good as the Original..This is because of the Land Registration Act 2002 s.67. (LRA 2002). Any copies of documents that you get from HMLR will be permitted in Court or before the Adjudicator as if it was the 'original'....in other words, it provides you with the 'official' evidence that the Lender has not signed the deed.

 

This is important because, before any Lender can claim possession of a Borrowers home; he must be able to show a 'cause of action'...His 'cause of action' is due to the Deed and the registration at HMLR against the Borrowers title.

 

The Law of Property Act 1925 at s.52 (LPA 1925) provides that the ONLY means of creating an interest in relation to land is by DEED, if not done by Deed, then the document fails to create any interest and is VOID.

 

A Deed does not operate at Law until it is registered at HMLR - the understanding is that it is NOT until the Deed has been signed by both the Borrower and the Lender that it acts as a 'registrable disposition' - its purpose once signed by both the Lender and Borrower is to represent the 'transfer' of the Borrowers interests (Owners Powers) to the Lender. If all this is OK, then the LPA 2002 s.27 says...Transfers of registrable dispositions must be registered to operate at Law - Once registered the Lender has a LEGAL 'cause of action' - i.e the legal right to bring proceedings to ask a court for possession of a Borrowers home if the Borrower is in default of the Mortgage (the Loan secured by the property).

 

In your case, the Deed has not been signed by your Lender, what this means is:

 

The Deed is Void - it does not comply with LPA 1925 s.52 (1)

 

"All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed"

 

The LAW makes it clear that both parties are intended to sign the Deed, you have signed - but your Lender has not, he has not complied with the Law of Property (Miscellaneous Provisions) Act 1989 s.1 (2) (b)

 

(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 by that person or, as the case may be, one or more of those parties.

 

A Deed is NOT Validly executed by a Company unless they can evidence compliance with the LPA 1925 s.74A (a)(b)

 

74AExecution of instrument as a deed

 

(1)An instrument is validly executed by a corporation aggregate as a deed for the purposes of section 1(2)(b) of the Law of Property (MiscellaneousProvisions) Act 1989, if and only if—

(a)it is duly executed by the corporation, and

(b)it is delivered as a deed.

(2)An instrument shall be presumed to be delivered for the purposes of subsection (1)(b) of this section upon its being executed, unless a contrary intention is proved.]

 

So, if you have a 'Deed' in your possession that your Lender has not signed, then it is VOID.

 

There will be no 'registrable disposition' that has given rise to a 'transfer' of any 'Owners Powers' that gave/give effect to a registration at HMLR.

 

But it is registered isn't it? of course it is.....HMLR relies on your witnessed signature as evidence of your intent to be bound by the Deed and registered the Lenders purported interest in your home/property..' that's why, when you called HMLR they told you that they do not need to see the Lenders signature...the Land Registration Rules 2003 allow that the Registrar need only be sure that it says its a Deed, it says that it is a charge by way of legal mortgage and a few other bits and bobs and you've signed it in front of a witness...and hey presto...it will be registered....

 

This is why, when many Borrowers contact HMLR to say the title register is wrong, the Registrar will give them short shift...it is not wrong at all..they have complied with the LRR 2003 - they are not concerned with issues to do with the underlying Deed - for that, you must go to a Court of Law or the 'Insurer of Last Resort' - The Adjudicator himself....but, they don't tell you this, they are not there to give Legal Advise....

 

Your Lender, will then rely that because HMLR has registered the purported interest that LRA s.58 (1) is conclusive of it's Legal interest...which it is....the Lender relies and knows that there is no getting around the conclusive nature of section 58 (1) ....for his 'cause of action' against a legal right to possession of your home, even though he knows you have in your possession a Deed that he has not signed, and has no intention to sign - this is because this piece of legislation conveniently says that even if he has no cause of action - this Statute provides that he has.

 

You may think - 'that's it then'....But it is not the end of the road for Borrowers as we are led to believe at all....

 

As a Borrower you can rely on the LPA 1925 s1 (7) which says:

 

(7)Every power of appointment over, or power to convey or charge land or any interest therein, whether created by a statute or other instrument or implied by law, and whether created before or after the commencement of this Act (not being a power vested in a legal mortgagee or an estate owner in right of his estate and exercisable by him or by another person in his name and on his behalf), operates only in equity. [i have highlighted the important bits]

 

So there you have it....even though LRA 2002 says it is 'conclusive' regardless....LPA 1925 says...Yes it is...but, if you can evidence that the Lender has not signed the Deed, then his alleged 'conclusive' right operates at Law in 'equity' only....

 

An equitable right is not a Legal right - an equitable right does not grant a legal right to possession of any borrowers home.

 

Hope this helps?

 

Apple

[tmb70]

Apple,

 

An interesting read! Now do I use this in a letter to HMLR to challenge the unenforceable deed?