Mortgage Deed - Does it need to be signed by the lender ?

Winged Piglet · July 6, 2013

Hello

Ok..

I have a feeling the answers that I can give are not the ones that you want to hear.

In terms of your comments about securitisation, I would direct you to:

paragon v pender 2003 2005,

Bank of Scotland Plc v McGuigan,

Wellstead -v- Judge White & Anon,

Santander UK Plc v Harrison

Paratus AMC Ltd & Anor v Countrywide Surveyors Ltd [2011],

Southern Pacific Personal Loans Ltd v Walker & Anor [2009],

Southern Pacific Securities 05-2 Plc v Walker & Anor [2010]

Closer inspection of the last two cases will show that the first involved the lender (SPPL) and the second involved the SPV (SPS 05-2) - notices of the change of ownership were provided to SPPL borrowers and the land registry was also updated to reflect the change from SPPL to SPS 05-02.

After reading some of the threads on CAG securitisation, much like now about deeds, has been debated to death.

My view is that the party registered on the charges register at the land registry has the power of possession. As a borrower myself, I am only worried about the party that can repossess my home.

Therefore, I would say that party is the legal owner - being they own the legal title and not necessarily the equitable / beneficial title.

I say this because, as per one of the Judgements from Pender:

"In my judgment as a matter of principle the right to possession conferred by the Legal Charge remains exercisable by Paragon as the legal owner of the Legal Charge (i.e. as the registered proprietor of it), notwithstanding that Paragon may have transferred the beneficial ownership of the Legal Charge to the SPV."

My absolute gut instinct is to disagree. The party who is the owner of the Legal Charge cannot have overall and absolute rights if:- firstly no rights have been afforded to the original owner and the power to assign to this new owner was never there, i.e. where do these 'rights' to assign emanate from? if there is no agreement, then the Lender cannot rely on these rights as they are not lawful but an assumption made by them. A lender has to have a legal right to assign.

Also, isn't this Judgment behind current thinking, i.e. how come the lender applying for possession of a borrowers property is stating it's based on arrears and the pivot of his argument is that the lender is sufferieng detriment themselves, when in actual fact, there is no detriment as the mortgage monies as a whole of all the borrowing were paid to them on securitisation. The only difference to the Lender is that he has no money to collect and pass down the winding maze of securitisation via his third party agreement to act as administator or cash collector for the SPV then investors.Therefore, what has not paying the 'contractual' monthly mortgage payments actually got to do with the pretend lender who only holds by a thread the Legal Title at LR? It is the lender's problem that he has breached a separate agreement not involving the borrower.

The change for my mortgage is

Original lender (GMAC) To New 'Lender' `(who does't lend and can't lend) to SPV to investors etc etc. The notification was to tell me that the original lender had passed it to the new 'lender' that's all.

The securitisation is relevant in that if there is no lawful loan agreement and a faulty Deed then as the OL has sold it on to the new lender who's sold it on to SPV, then they have no right at all to do so. We then have to unwind the unwindable. It's all very well all of these companies doing deals but the paperwork is clearly not in order, so they cannot rely on it to support their actions and never had any right to do so, but did anyway as the Borrowers were ignorant of the law at the time and ignorant of their backgound agreements. The LR are also ignorant of the behind the scenes agreements to.

This also sparks the question, referencing the foundation of this thread in that, where is the intent for any Borrower to contract in with another party up the line, where is the intention of the original lender was always to make the Borrower contract with another party. That to me is grossly misleading. A borrower may have confidence in granting a Deed to a well known bank or financial institution but if immediately on signing and granting, the OL has already planned in fact it's a neccessary part of the plan, for them to dispense with their oblgations and sell it on to an unknown, how is that fair. How does that then effect the Borrowers intent and decision?

Why can't a borrower on finding out that the mortgage has been securitised retract the Deed. I for one feel I have been extremely misled. It's not as though the OL woke up one morning and decided this might be a good wheeze to securitise, the fact is it was ALWAYS their intention.

Also on reading this thread, if the Deed does not say delivered as a Deed surely there is only presumption on delivery notwithstanding the new rules about delivery etc.

Edited July 6, 2013 by Winged Piglet

applecart · July 7, 2013

Hello Winged Piglet

I am not sure why Applecart has referenced the United Kuwait Bank case (then again I do have that view of most of her posts on this topic these days). As Applecart knows or at least should be aware in that case there was no Mortgage Deed., be it signed by the borrower or otherwise.

The United Kuwait Bank, abolished the rule that a mere deposit of title deeds (not mortgage deed Apple) relating to property by way of security created a mortgage or charge. I would say this case it not really all that relevant to your circumstances, as you have confirmed that whilst they was no mortgage agreement, there is a mortgage deed that has been executed by you the borrower.

A more relevant case to look at would be Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001)

The following extracts, more specifically in bold, highlight the relevance and similarities to your post - being that there was no mortgage agreement and only a mortgage deed that had been executed by the borrower and not by the lender.

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 interest 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.

16. In this case, as Mr Green points out, there is no preceding contract for the creation of the mortgage in issue. He draws the conclusion from that that the contract must be in the deed. In my judgment that is a misunderstanding. A deed is a different kind of instrument from an ordinary contract; and it is not a requirement of the execution of a deed that it should comply with the requirements of section 2 of the 1989 Act. That is clear. Section 1 refers throughout to deeds, section 2 refers throughout to contracts, clearly recognising that they are two different legal concepts.

17. In my judgment the case in United Bank of Kuwait v Sahib does not help Mr Green, because that was a case where there was no deed, unlike this case. There was in that case a purely informal equitable mortgage by deposit of title deeds. That had no effect because, as a contract, it was required to comply with section 2 and it did not comply. In my judgment His Honour Judge Jones was right to reject the submission that Mr Green made on the effect of section 2. Having referred to the point that it was unarguable, he said:

"Section two applies to a contract for the sale of an interest in land or a contract for some other disposition in relation to land. A contract to create a mortgage would obviously have to comply with section two and if it did not then it would not be a valid contract."

However, in this case there was no contract for the mortgage, there was simply the execution of the mortgage deed. That mortgage deed is a mortgage deed. It is not a contract to create a mortgage. I need really say no more than that about it."

18. He went on to refer to United Bank of Kuwait v Sahib, and correctly concluded that it did not assist Mr Green's case, as it was only concerned with the creation of an equitable charge and there was no deed in that case. I agree with the reasons given by His Honour Judge Jones. It follows that this point would not succeed on an appeal and therefore there is no point in my granting permission to appeal on that point.

I hope the above is of interest

Ben

Hi Ben,

It may help if you look at what Title Deeds are:

Title Deeds

"Title deeds are a series of historical documents. When the Land Registry introduced compulsory registration of land, these documents were replaced by the Title Register and Title Plan (see above).

Title Deeds comprise of various documents examples of common forms of deed are:

Transfers

Conveyances

Plans

Deeds

Charges

Agreements (covenants etc)

They contain historical information about rights of way, covenants, boundaries and frequently have detailed plans and drawings attached to them.

Title Deeds can bring to light new rights or burdens your property may have that are not recorded in your title register."

source: http://www.landregistrydeeds.co.uk/Title%20Deeds/Title_Deeds.htm

or: http://www.landregistry.gov.uk/public/faqs/what-are-title-deeds

Accordingly the United Kuwait case is relevant to the points raised by WP and no doubt to many other Borrowers who are in a similar position from the following point of view, thus:

PETER GIBSON LJ

“(delivering the first judgment at the invitation of Leggatt LJ). Since 1783 a deposit of title deeds relating to a property by way of security has been taken to create an equitable mortgage of that property without any writ-ing, notwithstanding s 4 of the Statute of Frauds (1677) and its successor, s 40 of the Law of Property Act 1925. The main question that arises on this appeal is whether this much-criticised but well-established rule has survived the coming into force of s 2 of the Law of Property (Miscellaneous Provisions) Act 1989."

Source: http://freetheplanet.net/articles/204/united-bank-of-kuwait-v-sahib"

The only difference is that in WP's case and Is It Me's friends case we have to acknowledge the difference....., which is that the Borrower has signed the Deed and the Lender has not...Is this to be taken as 'part performance'?”

I ‘m hopeful that you will agree that a Borrower can safely rely that section 2 LP(MP) Act 1989 abolished section 40 LPA 1925 with regards to a Lenders defence of part performance (proprietary estoppal) on sight of his signature alone.

Note also in that case...there was no question as to whether a 'legal charge' had been created by the deposit of the title deeds...because for that there would need to have been some writing...signed by both the Lender and the Borrower....in compliance with section 2 in regard to the 'agreement'...

The case looked to see if the Lender could rely therefore on an equitable interest....and as you know...the case established that without any writing...s.40 did not survive section 2 at all...

Apple

applecart · July 7, 2013

It is the LAW that says a 'legal charge' can only be capable of existing in law if it is by Deed expressed to be by way of legal mortgage...

All the Deeds will express that they are to be by way of legal mortgage....

But for a Deed to be legal...it must comply with the LP(MP)Act 1989 in relation to the individuals signature (the Borrower) and to the LPA 1925 section (5) in particular relation to the Lenders legal duty to execute the deed since the 1925 Act came into force...

The Lenders signature in relation to execution is crucial...to the extent that the legislator makes reference to the execution of Deeds in all or any of the Companies Acts - there simply is no means by which a Lender can evade the LEGAL formalities of execution in relation to effecting a legal charge in land to be effected....the Statute of Frauds 1677 makes it imperative....

In Law a Borrower can only cause a mortgage of being capable of being 'effected at law' in one way and that is by 'deed expressed to be by way of legal mortgage' - see LPA 1925 section 85 (freehold) or section 86 (leasehold).

Ignore the legal power of the Borrower as owner .... being capable of 'effecting at law' a mortgage by 'demise' ....because the Borrower as owner power to do so was repealed by the LRA 2002 section 23 (1) (a).

So, whilst you look to convince Caggers that a Borrowers signature creates a Legal charge, this is simply not true.....a legal charge is created when both parties have signed the Deed...that must be done simultaneously.... not months or even years later on the lenders part.....

The response from the 'independent' Adjudicator looks to convince a Cagger that a Legal charge does not generally have to be signed by a Lender....again, this is simply not true......

I do not agree that the Law can be referred to as 'general' at all....the 'independent' Adjudicators response made a specific reference to a 'general' interpretation of HMLR's standard 'CH1' form,..... when the application specifically sought to make reference to the Deed....

Again, the 'independent' Adjudicator's response looked to establish that in Law..... a writing signed by the grantor in relation to land creates a Legal charge.....when in fact...the Law is clear....it would be at best an equitable interest that would be in existence, where there is no signature in evidence by the Lender – this is established Law - within the provision of LPA 1925 section 53 (1)©...

Remember...it is also established by case law (United Kuwait v Shaib) that part performance was abolished....

Therefore...whether the 'independent' Adjudicator made reference to the Deed or the CH1 form...on sight of the Borrowers signature alone....I fail to see how he/she could conclude that there was a legal charge effected by Is It Me's friend...

LPA 1925 section 62 establishes all that is party to a conveyance of land....but, it is LPA 1925 section 62 (5) that establishes that a Lender cannot claim any more than that which the conveyance evidences:

“(5)This section shall not be construed as giving to any person a better title to any property, right, or thing in this section mentioned than the title which the conveyance gives to him to the land or manor expressed to be conveyed, or as conveying to him any property, right, or thing in this section mentioned, further or otherwise than as the same could have been conveyed to him by the conveying parties.”

So, in any event, even if you wish to insist that the Deed need only be signed by the Borrower...bare in mind, that when it is... it does not convey a legal charge....or any of the benefits that a legal charge would convey....

Apple

applecart · July 7, 2013

My absolute gut instinct is to disagree. The party who is the owner of the Legal Charge cannot have overall and absolute rights if:- firstly no rights have been afforded to the original owner and the power to assign to this new owner was never there, i.e. where do these 'rights' to assign emanate from? if there is no agreement, then the Lender cannot rely on these rights as they are not lawful but an assumption made by them. A lender has to have a legal right to assign.

Also, isn't this Judgment behind current thinking, i.e. how come the lender applying for possession of a borrowers property is stating it's based on arrears and the pivot of his argument is that the lender is sufferieng detriment themselves, when in actual fact, there is no detriment as the mortgage monies as a whole of all the borrowing were paid to them on securitisation. The only difference to the Lender is that he has no money to collect and pass down the winding maze of securitisation via his third party agreement to act as administator or cash collector for the SPV then investors.Therefore, what has not paying the 'contractual' monthly mortgage payments actually got to do with the pretend lender who only holds by a thread the Legal Title at LR? It is the lender's problem that he has breached a separate agreement not involving the borrower.

The change for my mortgage is

Original lender (GMAC) To New 'Lender' `(who does't lend and can't lend) to SPV to investors etc etc. The notification was to tell me that the original lender had passed it to the new 'lender' that's all.

The securitisation is relevant in that if there is no lawful loan agreement and a faulty Deed then as the OL has sold it on to the new lender who's sold it on to SPV, then they have no right at all to do so. We then have to unwind the unwindable. It's all very well all of these companies doing deals but the paperwork is clearly not in order, so they cannot rely on it to support their actions and never had any right to do so, but did anyway as the Borrowers were ignorant of the law at the time and ignorant of their backgound agreements. The LR are also ignorant of the behind the scenes agreements to.

This also sparks the question, referencing the foundation of this thread in that, where is the intent for any Borrower to contract in with another party up the line, where is the intention of the original lender was always to make the Borrower contract with another party. That to me is grossly misleading. A borrower may have confidence in granting a Deed to a well known bank or financial institution but if immediately on signing and granting, the OL has already planned in fact it's a neccessary part of the plan, for them to dispense with their oblgations and sell it on to an unknown, how is that fair. How does that then effect the Borrowers intent and decision?

Why can't a borrower on finding out that the mortgage has been securitised retract the Deed. I for one feel I have been extremely misled. It's not as though the OL woke up one morning and decided this might be a good wheeze to securitise, the fact is it was ALWAYS their intention.

Also on reading this thread, if the Deed does not say delivered as a Deed surely there is only presumption on delivery notwithstanding the new rules about delivery etc.

Hi WP

All the points you raise are those that have been raised by Borrowers for some years now.

Ben is right of course... he has not been able .... so far.... to assist with anything to do with the assertions being made against HLMR.... that they have registered 000000's of deeds that do and did not grant the lender a legal charge.....

He leads on what has been common practice for years without question... and case law as based on that common practice that has been relied upon for years without question and in-depth debate ....not the LA W as it has progressed over the Years.....tantamount to...'we have always done it this way...and got away with it...and long may it continue...'

I have an underlying feeling that the role of the previous Adjudicator was earmarked quite a while ago for disbandment because of these very issues ....as we can see - Thanks to Is It Me....the 'independent' Adjudicator has been replaced by the Property Chamber on the 1st July 2013...but it is only my hunch....

I'll get back to you...being as Ben acknowledges he knows no more than what is HMLR's common practices that have stood to confuse Borrowers for years.....

Apple

applecart · July 7, 2013

reference to the lenders signature should say .... LPA 1925 section 74 (5)....my apologies

Apple

Winged Piglet · July 7, 2013

Hi WP

All the points you raise are those that have been raised by Borrowers for some years now.

Ben is right of course... he has not been able .... so far.... to assist with anything to do with the assertions being made against HLMR.... that they have registered 000000's of deeds that do and did not grant the lender a legal charge.....

He leads on what has been common practice for years without question... and case law as based on that common practice that has been relied upon for years without question and in-depth debate ....not the LA W as it has progressed over the Years.....tantamount to...'we have always done it this way...and got away with it...and long may it continue...'

I have an underlying feeling that the role of the previous Adjudicator was earmarked quite a while ago for disbandment because of these very issues ....as we can see - Thanks to Is It Me....the 'independent' Adjudicator has been replaced by the Property Chamber on the 1st July 2013...but it is only my hunch....

I'll get back to you...being as Ben acknowledges he knows no more than what is HMLR's common practices that have stood to confuse Borrowers for years.....

Apple

Thanks for that Apple.

The way I see it is that my Deed has a mistake, the Deed was registered with the mistake without anyone noticing. The LR practice guidelines tell me using reference to the wrong terms and Conditions on the Deed as a reason for rectification. However how is it rectfied? I am the one granting the Deed and the Deed is registered. Normally a mistake would be spotted by the Broker, Lender, Solciitor and the LR but no-one did. I did not see the Deed since I waived it bye bye off to the solciitor ( it was done remotely and was posted to me and I was simpy asked to sign here and get it witnessed), I did not get a copy on completion from anyone. It is only years later on questioning the use of the new pretender lender's attitude to charges, the terms and condiitions and their mightier than thou attitude to it all, which led me to look at what had actually occurred in the process of receiving the monies. I found no agreement signed by me or the lender and a Deed which was out of date with the wrong t and c's. Further investigation led me to find that it was securitised.

So in my corner I have Eagle Star case law in my favour.....tick

And I have the LR guidleines which say it requires Recitification.......tick

If the Deed is not Recitfied, the Charge it created on the Register is a mistake and the LR repeatedly states that it cannot tolerate a mistake. So the faulty Deed needs replacing and the Charge entry removed from the Register. If the Lender complains, I have the fact that there is no underlying signed contract to form the Mortgage AND they have done a background deal anyhoo with the Securitisation sale agreement so there is no detriment in actual fact they have benefitted from the registration of the Charge by the Deed. Furthermore, IF they argue the alternative, then IF the Lender is relying purely on the Deed as the agreement too, then it becomes a multi purpose document and the Lender's oblligations are incorporated and so they should have signed it, but they did not so it's void anyway.........tick

Section 2 LPA 1925 says a contract must be signed by both parties, but there is no signed Mortgage Offer/Loan Agreement.......tick

What I had asked Ben and I will ask anyone on the forum is that I understangd that there is a requirement for a Lender to sign the Deed IF he has stated on the Deed that he has an OBLIGATION TO MAKE FURTHER ADVANCES and requires a note to that effect to be made into the register.

However, is a Deed stating THIS DEED IS MADE FOR SECURING FURTHER ADVANCES the same thing or am I barking up the wrong tree with a pork sausage roll in my mouth? :-)

also WHERE does it say that a Deed is to be signed in the obligation further advances scenario?

I maybe quite naive in my approach but that's how I see it. Any comments and answers to the above much appreciated.

many thanks

Winged Piglet

Edited July 7, 2013 by Winged Piglet

Winged Piglet · July 7, 2013

Hello WP

After some thought, I don't think there is anything beneficial or even constructively that I can advise, to assist you in reaching your goal, based on what you have posted and the findings of the case law posted in terms of the deed and securitisation.

Therefore, I will leave it to Apple

Sorry

Ben

I am a wee bit dissappointed that you feel this way. You asked me questions and then I answered in depth. Why the change of attitude? Granted I am not facing imminent repossession but that is not the point, I have however had a heap of unfairness and demands, unfair charges, wrong info lodged with CRA's and an abhorent attitude from the new pretender lender acting as though they can do as they like and demanding I come to heel. If this debate helps others, or gets others to look at their documents then that's all in the spirit of CAG.

applecart · July 8, 2013

I am a wee bit dissappointed that you feel this way. You asked me questions and then I answered in depth. Why the change of attitude? Granted I am not facing imminent repossession but that is not the point, I have however had a heap of unfairness and demands, unfair charges, wrong info lodged with CRA's and an abhorent attitude from the new pretender lender acting as though they can do as they like and demanding I come to heel. If this debate helps others, or gets others to look at their documents then that's all in the spirit of CAG.

I don't think this was meant as a 'personal' thing...and you shouldn't take it as such either.....just look at the way he treats me....tells me he is disappointed with me....refers to me as 'she' when I've made no such admission and have no reason to do so either...then tells me he can't marry me because he's happily married......LOL...I know he'd love to divorce his missus and marry me though.....regardless of my gender.....hahahahh....after all Ben and I have already had tea don't you know.....hope his missus doesn't find out....lol

In all seriousness though, despite it all... I'm sure he will be back to assist you where he can in true cagger spirit.... :-)

Apple

applecart · July 8, 2013

Let me add further to your knowledge, before you go running off to the Adjudicator or a court of Law in this way....with this titbit...

Before the Land Registration Act 2002 (LRA 2002) came into force, there was the Land Registration Act 1925 (LRA 1925).......The LRA 1925 section 27 allowed the creation of a charge by demise for Freehold estates or sub-demise for Leasehold estates.....

So, what is the difference?

A charge by demise or sub-demise is shown at section 27 (3) and (4) of the LRA 1925

“(3)Any such demise or subdemise or charge by way of legal mortgage shall take effect from the date of the delivery of the deed containing the same, but subject to the estate or interest of any person (other than the proprietor of the land) whose estate or interest (whenever created) is registered or noted on the register before the date of registration of the charge.

(4)Any charge registered before the commencement of this Act shall take effect as a demise or subdemise of the land in accordance with the provisions of the M2Law of Property Act 1925, and the registered estate shall (without prejudice to any registered charge or any term or subterm created by a charge or by this Act) vest in the person appearing by the register to be entitled to the ultimate equity of redemption”

So, when the ‘Eagle Star’ case was decided, the Judge had to regard the above in relation to the Deed signed by the Greens’ registered at HMLR...NOT the LRA 2002 section 23 (1)

Again, when the ‘Eagle Star’ case was decided, the Judge had to regard at the same time to the effect of the LP(MP)Act 1989 section 1 (3) in relation to the Green’s signature on the Deed in unison with the LRA 1925 section 27 (3) and (4) shown above...NOT the combined effect of the LRA 2002 s.23 (1) and the amended version of the LP(MP)Act 1989 s. 1 (3)...

Therefore ....... at the time he decided the ‘Eagle Star’ case, there was a presumption of ‘delivery’ in relation to the signature of the Green’ s, whereas now, no such presumption should be being assumed by any Judge or HMLR Adjudicator because of the RRO 2005.

For a start, the LRA 1925 was in force, NOT the LRA 2002...The sections from the LRA 1925 posted above do not apply to owners powers (that’s the Borrowers powers as ‘owner’ of the estate by the way) to charge the land by demise or sub-demise since the coming into force of the LRA 2002.

Clearly, it would be wholly re-miss to assert that the decision in ‘Eagle Star’ has any relevance as the Law stands today.

Yet..... we have a response from an ‘Independent’ Adjudicator on ‘record’ (I’d so love to know the name of the Adjudicator in question...) who rather ambiguously is said to make out that in ‘general’ charges by demise can be given legal effect and operate at law in a right to possession and is relevant to a charge that was said to have been created ‘ way after 2005’.....When...

a) the LRA 2002 is in force – no longer possible to create a charge by demise – i.e by way of unilateral deed

b) the LP(MP) Act 1989 is amended by the RRO 2005 – removing the presumption of ‘delivery’ of any individuals signature – i.e – a unilateral deed gives effect to an equitable charge only (LPA 1925 s.53 (1)©)

c) The deed was in evidence and he/she refers to a CH1 form – ignoring their own ‘approved’ versions in favour of their own standard form – when the deed is an official document (LRA 2002 s.67 (1).

d) ignoring LRA 1925 section 74 (5) – taking no note of the fact the deed has not been signed by the Lender – i.e no legal charge created – bilateral and reciprocal to protect the Borrowers inherent right to redemption....

The LRA 2002...came into force since 26th February 2002!!!....Eagle Star v Green was ....funnily enough.....heard on the 29th January 2002....

A mortgage by demise was one where as soon as you signed the deed, the lender/creditor became the owner of the property until the borrower redeemed the mortgage – i.e repaid the entire debt back to the lender....these are no longer legally created by any borrower...

A charge by way of legal mortgage intends that the Borrower remains the 'owner' of the property

Apple

applecart · July 9, 2013

Thanks for that Apple.

The way I see it is that my Deed has a mistake, the Deed was registered with the mistake without anyone noticing. The LR practice guidelines tell me using reference to the wrong terms and Conditions on the Deed as a reason for rectification. However how is it rectfied?

If there is a error because the lenders terms and conditions are incorrectly stated, then this is a relatively easy fix, it is done by application to HMLR directly, not the Adjudicator...with the agreement of the Lender - the amendment can be made.....this is not the same as having a document set aside.... you are speaking of 'alteration'... where if it is in error, it can be altered.

I am the one granting the Deed and the Deed is registered. Normally a mistake would be spotted by the Broker, Lender, Solciitor and the LR but no-one did.

You will have signed the Deed, yes, but errors and mistakes can and do occur, that's why any party to the deed affected by the error - can ask for the mistake to be altered under LRA 2002 schedule 4....

I did not see the Deed since I waived it bye bye off to the solciitor ( it was done remotely and was posted to me and I was simpy asked to sign here and get it witnessed), I did not get a copy on completion from anyone. It is only years later on questioning the use of the new pretender lender's attitude to charges, the terms and condiitions and their mightier than thou attitude to it all, which led me to look at what had actually occurred in the process of receiving the monies.

You will/should have received a copy of the title plan a copy of the deed you signed from the solicitor etc along with the cheque after completion (if applicable)....

I found no agreement signed by me or the lender and a Deed which was out of date with the wrong t and c's. Further investigation led me to find that it was securitised.

When you say 'out of date'....what do you mean??.....the T's and C's can be amended as stated above.....Securitisation is another ball game....

So in my corner I have Eagle Star case law in my favour.....tick

It depends....this case was decided prior to the LRA 2002 coming into force and of course the RRO2005 coming into force to amend the LP(MP) Act 1989, consequently, there is no presumption of 'delivery' it is now a necessity that the lender must sign the deed as well etc, etc

And I have the LR guidleines which say it requires Recitification.......tick

Rectification and Alteration tend to get confused, there are mistakes that affect the registered title and mistakes that go to the root of the legal charge that operates at law or that has been granted legal effect by virtue of being registered.....your t's and c's can be 'altered' i.e 'rectified'.... your deed would have to be 'set a side'... with the intent of causing the purported legal disposition to be removed from the register all together

If the Deed is not Recitfied, the Charge it created on the Register is a mistake and the LR repeatedly states that it cannot tolerate a mistake.

To Clarify... Applications made to do with the Deed will be done to 'set it aside'.... a Deed will not be set aside because the parties agree that the T's and C's need alteration....thus rectification...setting aside a deed, will be a request made to the Court or the Adjudicator on grounds to do with the fact that it does not convey the intent of both parties to it as it does not conform with the formalities required to create a legal deed as used to convey a charge by way of legal mortgage...in brief...on it's face the deed expresses that there is an intent to convey a 'charge by way of legal mortgage'....but, without the Lenders signature that 'intent' is not manifest....there is no legal means upon which either the Lender of the Borrower can rely to 'alter' or 'rectify' that issue...it was up to the Lender to execute the Deed.... it failed to do so, and as such....the document does not convey a legal interest at all.... if the document used to create a legal interest...fails to do so... then it must be set aside....

So the faulty Deed needs replacing and the Charge entry removed from the Register.

If the Lender complains, I have the fact that there is no underlying signed contract to form the Mortgage

I do not see that any lender would complain if all you wanted to do was shore up the registered charge by making an application to 'alter' the T's and C's, that works in his favor.....You are correct of course, behind any deed - there must be a contract - an agreement that complies with section 2 LP(MP) Act 1989...likewise, for registration purposes the formality in relation to the Deed changed with the coming into force of the LRA 2002 and the RRO 2005 so that the previous presumption of delivery of a borrowers attested signature is no longer a defence with out at least a signature from a Lender complying with section LPA 1925 s.74 (5).....(the decision in 'Eagle Star' came before these 2 important enactments - so quite why, we are continually referred to it is beyond me...)....so....in that regard it would be far better to rely on the persuasive decisions in 'Garguillo'....'Bibby'...and refer to the RRO 2005 when you do....as the RRO establishes that the deed of an individual is not 'delivered' on his behalf or in any other way any longer - other than the execution/signatory.... It cannot be overstated enough....if the lender has not signed the deed...it is not 'delivered' and there is no 'charge by way of legal mortgage' conveyed at all...

AND they have done a background deal anyhoo with the Securitisation sale agreement so there is no detriment in actual fact they have benefitted from the registration of the Charge by the Deed.

The fact that your mortgage has been securitised is 'secondary' if you will, on the basis that - like you say ...if the Deed failed to convey a legal interest, it cannot be relied that a charge by way of legal mortgage exists/ed....'secondary'.... because, this contention forms the basis for a claim for indemnity against HMLR for causing a document that did not convey a legal interest to have legal effect and operate at law by mistake......HMLR is liable to you under the 'guarantee' to you as the estate owner....and the lender is potentially liable to HMLR....but, that is a matter for HMLR and the Lender to deal with....

Furthermore, IF they argue the alternative, then IF the Lender is relying purely on the Deed as the agreement too, then it becomes a multi purpose document and the Lender's oblligations are incorporated and so they should have signed it, but they did not so it's void anyway.........tick

It would be interesting for them to try to do so, the formalities in relation to land and the deeds are steeped in legislation....simply because of the 'guarantees' that land registration in the UK .... the formalities are the formalities...if all the Lender bargained for was a 'equitable interest (by not signing the deed - s.53 (1) (e)...then, that's what it got...but, the Lender needs to take into account that the decision in 'United Kuwait' persuades that 'part performance' was abolished by virtue of section 2 LP(MP) Act in relation to mortgages....and the cases referred to in both 'Garguillo' and 'bibby' find that 'delivery' is fundamental to the validity of the deed that relates to land.

Section 2 LPA 1925 says a contract must be signed by both parties, but there is no signed Mortgage Offer/Loan Agreement.......tick

Be mindful to quote the legislation that actually applies - it is 'section 2 (LP(MP) Act 1989 that states the underlying agreement must be signed by the parties....NOT 'LPA 1925'....you also need to able to equate all the various pieces of legislation in a logical sequence and order to spell the message - agreements in relation to land is much more involved tht a standard loan agreement... if you quote the wrong legislation - you will come a cropper.....be careful...different pieces of legislation in relation to land have different meanings and outcomes.....similar to the misguided belief that if the the Borrower signs a deed that states...charge by way of legal mortgage...but is not signed by the Borrower...this creates a mortgage by demise ...which is wholly illegal since the coming into force of the LRA 2002 s.23 (1).....not a charge by way of legal mortgage....

What I had asked Ben and I will ask anyone on the forum is that I understangd that there is a requirement for a Lender to sign the Deed IF he has stated on the Deed that he has an OBLIGATION TO MAKE FURTHER ADVANCES and requires a note to that effect to be made into the register.

There is no legislation that I have come across so far that supports Ben's assertion....that such a statement would cause a deed to be valid or not.....it applies to the CH1 form only, HMLR do not make the Laws of this land...they are administrators - tasked with ensuring that they do not cause the title of any borrowers home to fall into the wrong hands erroneously...a big task...it requires that they understand the Law and implement it within their administration processes to avoid and limit the mistakes made.....against this of course, we have to also acknowledge, that whilst they are a government department, they are independently funded....tasked to remain solvent much the same as a business in their own right.....oh, and they financed the 'independent' Adjudicator of course....ummmmmm???

However, is a Deed stating THIS DEED IS MADE FOR SECURING FURTHER ADVANCES the same thing or am I barking up the wrong tree with a pork sausage roll in my mouth?

As above, the CH1 form is a standard form, most lenders use their own 'approved' forms of charge, which will be the deed you should have with the 'MD' number on it.....so, quite how the mention of a CH1 form has come into this is beyond me.....non the less, even if a deed does state the words you say...this is not a formality under the common law at all... it has no bearing in the validity or otherwise of the Deed....

also WHERE does it say that a Deed is to be signed in the obligation further advances scenario?

If you are asking where does it say that within the statute...the simple answer is ...I've yet to find it...and my research has been extensive, I assure you.....perhaps Ben can assist???

I maybe quite naive in my approach but that's how I see it. Any comments and answers to the above much appreciated.

It is that naivety that is relied upon, the taxman will tell you in no uncertain terms 'ignorance is not bliss'... a learned Cagger stated on another thread that we are all 'deemed to now the Law'... I wholeheartedly agree... when you find it, and can piece it together to make out your case, then you should use and rely on it to protect your interests........ : )

I'm hopeful that this info continues to enlighten you and others ....

many thanks

Winged Piglet

Apple

bhall · July 9, 2013

Hello WP & Apple

I have actively chosen to no longer contribute to this thread for a number of reasons. The question asked when I started this thread has now been answered by the Property Chamber. That answer being No.

This answer was provided by a Cagger following apple's advice based on her self proclaimed knowledge.

Not that I am surprised as the response from the Property Chamber confirms that Apple has misunderstood the statutory requirements applicable to deeds, Apple despite telling people to make an application to the Adjudicator, now disagrees with the Adjudicator findings.

In fact Apple now says that the Adjudicator is wrong, implying her own knowledge on Property Law is more in depth and extensive than the Property Chamber. Come on now let's be real here, who is likely to have the most knowledge or expertise here, Apple or the Adjudicator for the Land Registry ?

I know who I would put my money on. :wink: and to be clear it isn't Apple

I think that each of Apples posts need to come with its own caveat. Clearly the knowledge claimed is in fact far in excess of the knowledge Apple has. Yes Apple did great things in relation to Logbook loans but clearly her knowledge of property law is questionable at best.

WP, I wish you all the luck in the world with reaching your goal. However, the reason that I have withdrawn from the discussion is that I have just spent several months discussing the law applicable to deeds with Apple.

Someone followed Apples advice and was given an official response that proved Apple had misunderstood the law, thus confirming that Apples interpretations of the law could not be relied upon. Even now, Apple refuses to consider she is wrong.

Here is an example of how Apple will interpret things to suit her argument - Here she says that a case that she feels supports her argument, set a legal precedent and one that blows her argument apart doesn't set a legal precedent. (This despite her self proclaimed knowledge)

http://www.consumeractiongroup.co.uk/forum/showthread.php?335240-TMB-Securitisation&p=4201210&viewfull=1#post4201210

Apple will dismiss anyone and everything that does not support her argument. That goes to the very core of the strength of her arguments and shakes the very foundations and highlights the weakness of each point she makes on this topic.

In terms of your own situation WP, you should heed the findings of eagle star, especially as in that case there was no mortgage agreement (contract) but there was a mortgage deed that had been only executed by the borrower. - The property was repossessed - As a homeowner that is my biggest concern. In Kuwait the deed referred to is a Title Deed - in otherwords the deed for the actual property and not the mortgage deed. The Kuwait case has nothing to do with mortgage deeds, as in that case there wasn't a mortgage deed. Yet Apple considers it an Authority :???:

To dismiss those findings when they are very similar to your own circumstances, I feel would be unwise but that is your choice.

In response to your question about 'obligation to provide a further advance' - a mortgage deed usually only includes obligations of for the borrower. In other words the deeds says the borrower is going to do this, this and this. The borrower then signs it to say he/she will do those things. If there are no obligations for the lender, it does not have sign as it is not agreeing to perform any obligations, so does not have to sign.

Whereas, if the deed includes an obligation for the lender, such as an obligation to provide a further advance (completely different to a statement reading the deed is used to secure further advances - this protects the security of any future further advance against second charges), the lender is saying it is going to do something, so it is then required to sign - to say that it agrees to do an action.

In otherwords, why would a party sign a document to agree to do something, when that same document doesn't actually state that party has to do anything -

In terms of securitisation, much like the response from the Adjudicator of the land registry, the view of the courts is very different to the arguments posted by Apple.

It would appear that you and Apple have very similar ideas on the topics of deeds and securitisation. The last few months have taught me that Apple will never accept that she is wrong, no matter what evidence is posted or even when a Cagger follows her advice and it is confirmed she is wrong.

From your initial posts made after your long absence from CAG it would appear that you may have a similar mindset to Apple in that you appear only willing to accept answers that support your journey to your goal. (no offence intended).

As I have said my answers will not support you on your journey, so there is no point in me going over things that have been posted time and time again already.

I just don't have it in me to go around in the same circles time and time again, going over the same points again and again, to see Apple interpret the law wrongly time and time again, which will be over and over again in months or even years.

For those reasons as they say on Dragon's Den, I am out. ;-) (can't really do a Scot's accent but I do like the way it sounds when Duncan says it).

Good luck to you WP and to everyone else, when reading any advice provided by Apple please heed the caveat that the Adjudicator has confirmed that she is wrong and has misunderstood the law. Despite this Apple refuses to consider or realise she is wrong. Now that is some ego. (No offence intended)

Ben ;-)

Edited July 9, 2013 by bhall

Winged Piglet · July 9, 2013

Hello WP & Apple

I have actively chosen to no longer contribute to this thread for a number of reasons. The question asked when I started this thread has now been answered by the Property Chamber. That answer being No.

This answer was provided by a Cagger following apple's advice based on her self proclaimed knowledge.

Not that I am surprised as the response from the Property Chamber confirms that Apple has misunderstood the statutory requirements applicable to deeds, Apple despite telling people to make an application to the Adjudicator, now disagrees with the Adjudicator findings.

In fact Apple now says that the Adjudicator is wrong, implying her own knowledge on Property Law is more in depth and extensive than the Property Chamber. Come on now let's be real here, who is likely to have the most knowledge or expertise here, Apple or the Adjudicator for the Land Registry ?

I know who I would put my money on. and to be clear it isn't Apple

I think that each of Apples posts need to come with its own caveat. Clearly the knowledge claimed is in fact far in excess of the knowledge Apple has. Yes Apple did great things in relation to Logbook loans but clearly her knowledge of property law is questionable at best.

WP, I wish you all the luck in the world with reaching your goal. However, the reason that I have withdrawn from the discussion is that I have just spent several months discussing the law applicable to deeds with Apple.

Someone followed Apples advice and was given an official response that proved Apple had misunderstood the law, thus confirming that Apples interpretations of the law could not be relied upon. Even now, Apple refuses to consider she is wrong.

Here is an example of how Apple will interpret things to suit her argument - Here she says that a case that she feels supports her argument, set a legal precedent and one that blows her argument apart doesn't set a legal precedent. (This despite her self proclaimed knowledge)

http://www.consumeractiongroup.co.uk/forum/showthread.php?335240-TMB-Securitisation&p=4201210&viewfull=1#post4201210

Apple will dismiss anyone and everything that does not support her argument. That goes to the very core of the strength of her arguments and shakes the very foundations and highlights the weakness of each point she makes on this topic.

In terms of your own situation WP, you should heed the findings of eagle star, especially as in that case there was no mortgage agreement (contract) but there was a mortgage deed that had been only executed by the borrower. - The property was repossessed - As a homeowner that is my biggest concern. In Kuwait the deed referred to is a Title Deed - in otherwords the deed for the actual property and not the mortgage deed. The Kuwait case has nothing to do with mortgage deeds, as in that case there wasn't a mortgage deed. Yet Apple considers it an Authority

To dismiss those findings when they are very similar to your own circumstances, I feel would be unwise but that is your choice.

In response to your question about 'obligation to provide a further advance' - a mortgage deed usually only includes obligations of for the borrower. In other words the deeds says the borrower is going to do this, this and this. The borrower then signs it to say he/she will do those things. If there are no obligations for the lender, it does not have sign as it is not agreeing to perform any obligations, so does not have to sign.

Whereas, if the deed includes an obligation for the lender, such as an obligation to provide a further advance (completely different to a statement reading the deed is used to secure further advances - this protects the security of any future further advance against second charges), the lender is saying it is going to do something, so it is then required to sign - to say that it agrees to do an action.

In otherwords, why would a party sign a document to agree to do something, when that same document doesn't actually state that party has to do anything -

In terms of securitisation, much like the response from the Adjudicator of the land registry, the view of the courts is very different to the arguments posted by Apple.

It would appear that you and Apple have very similar ideas on the topics of deeds and securitisation. The last few months have taught me that Apple will never accept that she is wrong, no matter what evidence is posted or even when a Cagger follows her advice and it is confirmed she is wrong.

From your initial posts made after your long absence from CAG it would appear that you may have a similar mindset to Apple in that you appear only willing to accept answers that support your journey to your goal. (no offence intended).

As I have said my answers will not support you on your journey, so there is no point in me going over things that have been posted time and time again already.

I just don't have it in me to go around in the same circles time and time again, going over the same points again and again, to see Apple interpret the law wrongly time and time again, which will be over and over again in months or even years.

For those reasons as they say on Dragon's Den, I am out. ;-) (can't really do a Scot's accent but I do like the way it sounds when Duncan says it).

Good luck to you WP and to everyone else, when reading any advice provided by Apple please heed the caveat that the Adjudicator has confirmed that she is wrong and has misunderstood the law. Despite this Apple refuses to consider or realise she is wrong. Now that is some ego. (No offence intended)

Ben ;-)

BEN/APPLE

the lord Ben giveth and the lord Ben taketh away :-) a wee jest!

Thank you both for your opinions. However Ben you should always bear in mind that even the Adjudicator's decision is one opinion much like a Judge whose judgment is appealed as the law has not been applied and therefore is overriden. Some application of law is interpretation and some is stated as such so there is no need for interpretation and is literal. Even from a layman's perspective, it does not seem to be logical to confuse a Deed with a CH1 and the granting of a legal mortage with the demise of a charge. I appreciate that you started this thread and the reasons why, however I think it is irrelevant that I have not posted for a while, I have still been present and doing research and also contribute to other consumer forums. I came on this thread to discuss/learn about the very issues you were debating.

Thanks Apple that's very interesting about a charge by demise.

So if the Adjudicator makes such a basic error, surely there is an appeal process, whereby this can be nipped in the bud?

Also another Deed I have seen makes ref to obligations for further advances but it is on an approved form of charge, yet it is not signed by the lender but LR were happy to register anyway. Yet their own standard form CH1 clearly states this and if lender had used this, surely LR would have not registered if it had not been signed. I wonder how many Deeds using CH1 have actually been signed when there has been an obligation on the lender for further advances made? Surely then the LR would be looked on as being negligent by allowing a Deed to be registered when it clearly should be signed. What would their defence be? The whole point of an approved form of charge is that they don't need to check them, however if it wasn't signed by the borrower for eg, I am sure they would notice immediately!

Surely the form and content of LR's CH1 would defeat any defence by any lender citing obligations for further advances in their form of charge and then didn't sign? It's there in black and white so LR couldn't claim it's not important.

I understand now ref: redemption, that is very interesting, so another reason for every lender to sign Deed.

In relation to my Deed I am pointing out a mistake i.e. erroneous reference to the wrong terms and conditions of the mortgage as per LR's example of a deed that requires rectification. Because the Deed has already been registered and lodged at LR, *then there are two options. (Please note Deed refs out of date terms and conditions, when mortgage offer (unsigned) refs new ones and even pretender lender and OL agree it should be new ones.)

1) I grant a Deed of Variation (and it can only be me, it cannot be instigated by the Lender), however the original lender has sold it on to pretender lender and they have sold the Beneficial Interest so can't grant a Deed of Variation which has to come from the Borrower. So can't lawfully do. Remember LR don't know about the relationship in the background because of securitisation.

2) as the LR guidelines state, there has got to be a lawful Deed (without mistake) for the charge to be created, so this Deed is set aside and by this action so is the charge it created.

3) so lender will want a fresh Deed all tickety boo and tidy and so will LR to replace the Deed they have set aside. However, I cry no Mortgage agreement!! so no rights to assign to pretender lender who then sold beneficial interest. So as they have no right to ownership (which they got from assignment of the Deed via the mortgage loan agreement (which is not signed), then no rights to demand I sign a Deed in favour of the pretender lender. Can't sign fresh, new Deed to OL as that ship has sailed.

4) LR can't allow Deed to stay and charge created to benefit pretender lender as they would be allowing them to benefit from a mistake in the register etc

5) so charge removed, deed set aside and pretender lender left with nothing accept to sue OL who will claim that pretender lender should have operated due diligence.

6) for good measure I also cite that OL did not sign ref RRO 2005 and also mention they put wrong Title Number on Deed for leasehold garage only,*although transfer doc apparently states both for house and garage.

Obviously interspersed with copious and correct references to appropriate law etc.

I can't see it being the case that the LR or the Lender can force me to grant a Deed of variation or new deed in these circumstances. But the LR will need to set aside Deed as mistake by virtue of incorrect Deed has created a charge, which by virtue of the mistake on the Deed is a mistake in the register.

No Apple I did not receieve on completion any copy of the Deed at all.

As I have been reliably informed, my application which sets off the chain of events is lodged at LR, the Adjudicator may then step in, if the pretender lenders objections are upheld. If they are not upheld, LR will remove the Charge as the Deed needs replacing. There is nothing anywhere to say that I must repace it with a fresh Deed. In normal circumstances, maybe the LR will insist that one Deed is exchanged for the other, so as not to prejudice the pretender lender but as I said earlier, I can prove that they are not being put in a prejudicial position for the reasons of no agreement and no right of assignment etc etc

Thanks Apple and Ben both for your wise words and your time in giving your opinions.

WP

applecart · July 9, 2013

Oh Ben, not again.....will you please put that dummy back in mate....ok, ok I'll become part of your hareem and marry you....LOL although you may find a surprise beneath my kilt...hahahaha.

Come on Ben....stand by what you say...be a Man...

Come back and tell us all why you and HMLR stand by 'Eagle Star' when the law has changed since it was decided....

Come back and tell us all why it is that the 'independent' Adjudicator...who's office is funded by HMLR or rather 'was' (it is disbanded now as you know) is so very correct to cause deeds by demise, unilateral deeds and such like, which are illegal under the present law for any Borrower to convey to any lender ...is wholly and justifiably registered by HMLR?

Come back and tell us all why since the coming into force of the LRA 2002..... that repealed charges by demise and sub demise has been ignored by HMLR for more than 10 years and the fact that there is no presumption of delivery since the RRO 2005...for more than the last 8 years....yet HMLR continue to be give such erroneous illegal documents legal effect that have been allowed to operate at law to see 000's of borrowers lose their homes to lenders who had no legal right to take possession of them in the first place.....

No...Your right, I have to concede, you ... cannot alone .....be held liable for all these issues...you are right you are simply going around in circles as the pressure mounts...best to step down gracefully right now, re-charge and come back with some piece of Legislation that actually supports the shenanigans that are going on at HMLR....

Maybe we can get the name of the Adjudicator who made the decision for Is It Me's Friend and ask the questions directed at you direct to that person..... must remember to ask Is It Me for the name of the Adjudicator on the decision hey..... :smile:

Having said this...good luck with all you do and Thank you for allowing me to post on your thread...much appreciated.

I'll be genuinely sorry to see you go.... :-(

Apple

applecart · July 10, 2013

BEN/APPLE

the lord Ben giveth and the lord Ben taketh away a wee jest!

Thank you both for your opinions. However Ben you should always bear in mind that even the Adjudicator's decision is one opinion much like a Judge whose judgment is appealed as the law has not been applied and therefore is overriden. Some application of law is interpretation and some is stated as such so there is no need for interpretation and is literal. Even from a layman's perspective, it does not seem to be logical to confuse a Deed with a CH1 and the granting of a legal mortage with the demise of a charge. I appreciate that you started this thread and the reasons why, however I think it is irrelevant that I have not posted for a while, I have still been present and doing research and also contribute to other consumer forums. I came on this thread to discuss/learn about the very issues you were debating.

Thanks Apple that's very interesting about a charge by demise.

This was not easily researched and founded - as you know land law can appear complex...but yes mortgages by demise were repealed with the coming into force of the LRA 2002 s.23....so where you have a mortgage deed signed by the Borrower alone, it is clear that a unilateral deed exists and that is tantamount to a mortgage by demise or sub-demise as the case may be....which is wholly illegal for a Borrower to do...and wrong for HMLR to have registered against the Borrowers title in favor of the lender......

So if the Adjudicator makes such a basic error, surely there is an appeal process, whereby this can be nipped in the bud?

It is not the Adjudicator who registered the charge in favor of the Lender, it will be staff at HMLR who are responsible, it is the Adjudicator who is responsible for making an order to set aside deeds that are void for lack of formality...or as we are now coming to realise....as based on the substantiating law....outright illegal!! (of course, any reference to the Adjudicator must be read with reference to the new Property Chamber Rules)

The 'appeal' process remains the same within the LRA 2002 section 108 - I could not see that there is any change there....applications to set aside deeds will be sent direct to the Property Chamber instead of to the 'Adjudicator', there is an appeal process to the upper tribunal...but if the application made is on point, this should avoid appeals being made to the upper tribunal I would think....

Where it was clear that there was no fee to apply to the Adjudicator...I'm unclear as to whether any fee applies under this new system of things, but what I am sure of is where a claimant may be on benefits - they would not have to pay the fees...

Also another Deed I have seen makes ref to obligations for further advances but it is on an approved form of charge, yet it is not signed by the lender but LR were happy to register anyway. Yet their own standard form CH1 clearly states this and if lender had used this, surely LR would have not registered if it had not been signed. I wonder how many Deeds using CH1 have actually been signed when there has been an obligation on the lender for further advances made? Surely then the LR would be looked on as being negligent by allowing a Deed to be registered when it clearly should be signed. What would their defence be? The whole point of an approved form of charge is that they don't need to check them, however if it wasn't signed by the borrower for eg, I am sure they would notice immediately!

This truly says it all really....even the Council Of Mortgage Lenders advise that a mortgage deed must be signed by the Lender and the Borrower....see here: http://www.cml.org.uk/cml/consumers/homebuy/homebuy2

Surely the form and content of LR's CH1 would defeat any defence by any lender citing obligations for further advances in their form of charge and then didn't sign? It's there in black and white so LR couldn't claim it's not important.

There simply is no defence to a deed that has not been signed by the Lender that relates to a charge by way of legal mortgage...

I understand now ref: redemption, that is very interesting, so another reason for every lender to sign Deed.

Just to add to your knowledge here...mortgages by demise or sub demise are stated at LPA 1925 s.85 or s.86 and in that it clearly advises that any deed implies a right to redemption....since the power to create a mortgage by demise or sub-demise was repealed by the LRA 2002 s.23.....you now find that the right to redemption is more clearly established as inherent....because the Borrower has at all times remained the legal owner of the property....l

In relation to my Deed I am pointing out a mistake i.e. erroneous reference to the wrong terms and conditions of the mortgage as per LR's example of a deed that requires rectification. Because the Deed has already been registered and lodged at LR, *then there are two options. (Please note Deed refs out of date terms and conditions, when mortgage offer (unsigned) refs new ones and even pretender lender and OL agree it should be new ones.)

the t's and c's issue would be considered an application to 'alter' those t's and c's....(LRA 2002 schedule 4 administered by HMLR - not Property Chamber) application to set aside the deed would be made direct to the Property Chamber...by the public

1) I grant a Deed of Variation (and it can only be me, it cannot be instigated by the Lender), however the original lender has sold it on to pretender lender and they have sold the Beneficial Interest so can't grant a Deed of Variation which has to come from the Borrower. So can't lawfully do. Remember LR don't know about the relationship in the background because of securitisation.

Try to focus on the relationship between you and the OL in any application made to alter or rectify the register...your deed is between you and the OL...it is that relationship that is your primary concern that affects your estate as the owner of it....The fact that the OL has sold on purported rights is a whole different ball game....

2) as the LR guidelines state, there has got to be a lawful Deed (without mistake) for the charge to be created, so this Deed is set aside and by this action so is the charge it created.

LR guidelines are just 'guidelines' it is the Law that you would rely upon to instigate and establish grounds for redress.....you will not establish a case based on HMLR guidelines...HMLR is not the Legislator....The Deed MUST be valid, as you say for the charge to have been legitimately created...if it is not, then it is void...the Deed is apt to be set aside with an order apt to be made for the register to be rectified .....

3) so lender will want a fresh Deed all tickety boo and tidy and so will LR to replace the Deed they have set aside. However, I cry no Mortgage agreement!! so no rights to assign to pretender lender who then sold beneficial interest. So as they have no right to ownership (which they got from assignment of the Deed via the mortgage loan agreement (which is not signed), then no rights to demand I sign a Deed in favour of the pretender lender. Can't sign fresh, new Deed to OL as that ship has sailed.

The Lender cannot simply undo a Deed that is void....and certainly will not be legally enabled to correct any of its terms in order to cause it to be valid....There is no Law to cause that which is invalid to be made valid not within the common law .... there would be no equitable grounds upon which the Lender could rely either....for estoppal will not assist the Lender who has failed to sign the deed .....

4) LR can't allow Deed to stay and charge created to benefit pretender lender as they would be allowing them to benefit from a mistake in the register etc

I see where you are going with this....but, think of it this way....if the Deed is void...LR will have no choice when ordered to do so, to remove the erroneous charge..and with it ....all benefits that the 'pretend lender' benefits from currently.....

5) so charge removed, deed set aside and pretender lender left with nothing accept to sue OL who will claim that pretender lender should have operated due diligence.

Deed set aside first, then, charge removed, then, you are done.....issues between the OL and the pretend lender will be for the to challenge - you were not privvy to their agreement, it has nothing in legal terms to do with you...your priority is to protect your estate.....

6) for good measure I also cite that OL did not sign ref RRO 2005 and also mention they put wrong Title Number on Deed for leasehold garage only,*although transfer doc apparently states both for house and garage.

You could do, but at the end of the day, if the Deed itself is invalid, does it really matter what it purports to convey...you should look to minimise the issue....not complicate it....keep it simple...keep it on point...which is the Deed is not valid and support the contention with statute and case law to establish in a succinct way to drive your case forward

Obviously interspersed with copious and correct references to appropriate law etc.

Yes, that's right, do not be in a rush...crossing 't's and 'i's is so important....get to know what you are talking about and understand what it is you are actually saying when you are relying on the land legislation....they will try to trip you up....you need to know it, inside, outside and back to front.... imagine if I didn't know more than Ben, this debate would have been over a long time ago...right?...so, be careful, there are many ways in which they will try to misguide and manipulate the facts and the Law...there is a lot at stake - both parties have a lot to lose....especially the borrower, if you get it wrong.....

I can't see it being the case that the LR or the Lender can force me to grant a Deed of variation or new deed in these circumstances. But the LR will need to set aside Deed as mistake by virtue of incorrect Deed has created a charge, which by virtue of the mistake on the Deed is a mistake in the register.

Your repeating yourself here...that's why it is best to limit the issue to the deed - is it void or valid....no need to second guess what LR will or should do, cover your own corner first, contemplate the likely come back, but if you keep it simple, there is less chance of you coming un-stuck....

No Apple I did not receieve on completion any copy of the Deed at all.

You will need to apply to LR for a official copy of the mortgage deed if you do not have one...

As I have been reliably informed, my application which sets off the chain of events is lodged at LR, the Adjudicator may then step in, if the pretender lenders objections are upheld. If they are not upheld, LR will remove the Charge as the Deed needs replacing. There is nothing anywhere to say that I must repace it with a fresh Deed. In normal circumstances, maybe the LR will insist that one Deed is exchanged for the other, so as not to prejudice the pretender lender but as I said earlier, I can prove that they are not being put in a prejudicial position for the reasons of no agreement and no right of assignment etc etc

If you send an application to the Land Registry...they will deal with it as a case for 'alteration'...that is their power within schedule 4...they have no power to deal with the underlying validity of the Deed at all... you must be sure as to what your objective is and proceed from there...at the moment, it seems you are confusing the 2 types of likely application....Like I say, variations, alterations etc that fall within LR powers under schedule 4 (LRA 2002) would not mean the registered charge would be set aside...

Thanks Apple and Ben both for your wise words and your time in giving your opinions.

No, on the contrary, Thank you for pursuing your query....

WP

Apple

aptb74 · August 18, 2013

Hello steampowered

Thank you for your post it is very much appreciated.

I will have to read Queen Maritime as I am not familiar with that case.

My personal view in relation to the mortgage deed discussion is that it has become lost that the mortgage deed only relates to the charge -being the security for the debt. The mortgage agreement -being the agreement to lend and repay the debt, results in the debt being created and is signed by both parties. As you say there would be contractual obligations for both parties.

Whereas the mortgage deed is unilateral as it is only the borrower that agrees to different things (such as they have received the advance /first payment, received the mortgage conditions and gives the actual charge) - , whereas in relation to deed the lender doesn't agree to perform any obligation and therefore leaves no requirement for it to be signed by the lender. - except for as described below.

Examples of mortgage deeds used

Thanks

Ben

Hi Ben what is your view of the status of a charge by way of legal mortgage if the mortgage deed DOES contain an obligation that the Deed is made to secure further advances and the lender is obliged to make further advances ..., but the lender has failed to sign the mortgage deed?

bhall · August 18, 2013

Hi Ben what is your view of the status of a charge by way of legal mortgage if the mortgage deed DOES contain an obligation that the Deed is made to secure further advances and the lender is obliged to make further advances ..., but the lender has failed to sign the mortgage deed?

Hello aptb74

Purely based upon the response Is It Me? received from the Property Chamber - If the deed is in a form that requires the signature of the lender and it has not been signed by the lender, I would raise it with the Property Chamber.

However, as it is the borrowers Deed, executed by the borrower and delivered on behalf of the borrower, usually by the borrower's conveyancer (the act of sending it to the Land Registry - demonstrating the borrowers intent for the deed to be binding), I could not with any degree of certainty say that it would be deemed unenforceable.

I say this because the judge, especially in possession proceedings is more focused on - was the money borrowed ? was the money repaid ?

The stumbling block is s.51 of the LRA 2002

"On completion of the relevant registration requirements, a charge created by means of a registrable disposition of a registered estate has effect, if it would not otherwise do so, as a charge by deed by way of legal mortgage."

If registered it would take effect as a charge by deed by way of legal mortgage and will continue to do so until the Title Register is amended.

You could argue that the mortgage deed was delivered in escrow - subject to the signature of the lender. However at present the law does not stipulate beyond 'a reasonable amount of time' when the grantee would be released from the obligations they agreed too, following an escrow condition not being met.

Something that has not been discussed is Estoppel by Deed - This prevents the borrower denying the truth of the deed.

If you are referring to your own circumstances, may I suggest waiting until after Is It Me? friend's hearing at the property chamber next month for clarification of the correct legal position.

It is only a matter of weeks until the hearing, the decision of which should subsequently be available online. The hearing should be considered to be a Test case, which may have an impact on a number of cases currently proceeding through the County Court's as detailed on other sites.

Is It Me? has a thread relating to a 'live case' rather just theoretical discussion as per this thread. As an official decision is to be made in the near future - it may be best to continue discussions in that thread.

Sorry if the above is not as clear as you may have hoped Aptb74.

Ben

Edited August 18, 2013 by bhall

UNRAM · August 18, 2013

In the first instance, there is no deed executed by a Borrower that does not include a 'restriction' that I am aware of....and it is fair to refer to the Borrower as the 'transferor' and the Lender as, the 'transferee'.

It is of note that HMLR's own TR1 Forms state at section '12' in reference to 'execution' that:

"The transferor must execute this transfer

as a deed using the space opposite. If

there is more than one transferor, all must

execute. Forms of execution are given in

Schedule 9 to the Land Registration

Rules 2003. If the transfer contains

transferee’s covenants or declarations or

contains an application by the transferee

(such as for a restriction), it must also be

executed by the transferee.

Apple

TR1 is a form for property transfer. Is this form applicable to lender/borrower? www.actlegal.co.uk/faq/buying-house-faqs/36/

aptb74 · September 3, 2013

Hello aptb74

Purely based upon the response Is It Me? received from the Property Chamber - If the deed is in a form that requires the signature of the lender and it has not been signed by the lender, I would raise it with the Property Chamber.

However, as it is the borrowers Deed, executed by the borrower and delivered on behalf of the borrower, usually by the borrower's conveyancer (the act of sending it to the Land Registry - demonstrating the borrowers intent for the deed to be binding), I could not with any degree of certainty say that it would be deemed unenforceable.....

Ben

Thanks for your advise Ben.

Now that the adjudicator has been replaced by the Property Chamber has the procedure and and form on which to make a set aside application changed or does the procedure and form used remain the same?

bhall · November 27, 2013

Good Evening

I have returned to this thread, to post some extracts from Halbury's Laws of England, in relation to mortgages, deeds and delivery.

I am posting it here, as I do not want to clog up Is It Me?'s thread with anything that is factual as that thread is the realm of fanciful ideas.

Before posting the extracts from Halsbury's, I thought it may be beneficial to explain for those not familiar with Halsbury's Laws of England, what it is

http://www.law.ox.ac.uk/lrsp/e/halsburys_laws_online.php

"Halsbury's Laws is an authoritative encyclopaedia of law in the England and Wales, arranged by subject,with several indexes and updating services. It is particularly useful if you are researching a new area of law (perhaps for a moot) and need to find the most important cases, legislation and commentary in that area"

bhall · November 27, 2013

It is asserted in the other thread that a mortgage by demise is the same thing as a Mortgage by legal charge. However, this is a misunderstanding.

Halsbury's explains the difference -

190. Mortgages by demise.

A mortgage1 of an estate in fee simple can be effected at law by a demise for a term of years absolute2, subject to a provision for cesser on redemption3. Likewise, a mortgage of a term of years absolute is capable of being made at law by a sub-demise for a term of years absolute, less by one day at least than the term vested in the mortgagor4 and subject to a provision for cesser on redemption5. As there may be concurrent demises, whether for the same or for different terms, a succession of legal mortgages by demise is possible6.

These provisions do not apply to registered land7.

1 As to the meaning of 'mortgage' see PARA 101 note 4.

2 As to the meaning of 'term of years absolute' see PARA 188 note 5.

3 See the Law of Property Act 1925 s 85(1). Powers to mortgage and to lend money on mortgage of an estate in fee simple are to be construed as powers to mortgage the estate for a term of years absolute, without impeachment for waste, or by a charge by way of legal mortgage or to lend on such security: s 85(4). As to the meaning of 'legal mortgage' see PARA 104 note 1. As to charges by way of legal mortgage see PARA 191.

4 As to the meaning of 'mortgagor' see PARA 104 note 1.

5 See the Law of Property Act 1925 s 86(1). Where a licence to sub-demise by way of mortgage is required, the licence must not be unreasonably refused: s 86(1). This provision applies whether or not the mortgage is made by way of sub-mortgage for a term of years absolute, or is expressed to be by way of trust for sale or otherwise: see s 86(3) (amended by the Land Registration Act 2002 s 133, Sch 11 para 2(1), (7)). Note that trusts for sale of land are now referred to as trusts of land: see the Trusts of Land and Appointment of Trustees Act 1996 s 1; and REAL PROPERTY vol 39(2) (Reissue) PARA 66.

Powers to mortgage or to lend money on mortgage of a term of years absolute by way of assignment are to be construed as a power to mortgage the term by sub-demise for a term of years absolute or by a charge by way of legal mortgage, or to lend on such security: see the Law of Property Act 1925 s 86(4).

6 See the Law of Property Act 1925 s 149(5).

7 See the Land Registration Act 2002 s 23(1)(a); PARA 155; and LAND REGISTRATION vol 26 (2004 Reissue) PARA 906.

Halsbury's Laws of England/MORTGAGE (VOLUME 77 (2010) 5TH EDITION)/3. CREATION OF MORTGAGES AND CHARGES/(1) LEGAL MORTGAGES OF LAND/(ii) Nature of Legal Mortgage of Land/A. TYPES OF MORTGAGE/191. Legal charges.

191. Legal charges.

A charge by way of legal mortgage can be created on freehold and leasehold property1. The charge is created by deed expressed to be by way of legal mortgage2. It ranks as a legal estate3, although no term of years is actually created4, and it gives the chargee the same protection, powers and remedies as if a mortgage term for 3,000 years without impeachment of waste in the case of freeholds5, or a mortgage sub-term less one day than the term vested in the mortgagor in the case of leaseholds6, had been created in the chargee's favour7. A chargee by way of legal mortgage may take proceedings to obtain possession from the occupiers and persons in receipt of rents and profits or any of them8, and may protect his charge by applying for relief against forfeiture, in the case of a mortgage of leasehold land9.

1 See the Law of Property Act 1925 ss 85(1), 86(1).

2 See the Law of Property Act 1925 ss 85(1), 86(1). It is submitted that the fact that the charge is by way of legal mortgage must be expressed somewhere in the deed if it is to take effect as such: cf Sopher v Mercer [1967] CLY 2543 (county court).

3 See the Law of Property Act 1925 ss 1(2)©, (4), 205(1)(x); and REAL PROPERTY vol 39(2) (Reissue) PARA 45. See further Caunce v Caunce [1969] 1 All ER 722, [1969] 1 WLR 286.

4 Weg Motors Ltd v Hales [1962] Ch 49 at 73-74, [1961] 3 All ER 181 at 190, CA, per Lord Evershed MR, and at 77 and 192 per Donovan LJ; Cumberland Court (Brighton) Ltd v Taylor [1964] Ch 29, [1963] 2 All ER 536; Thompson (Inspector of Taxes) v Salah [1972] 1 All ER 530. See also Edwards v Marshall-Lee (1975) 235 Estates Gazette 901, 119 Sol Jo 506. In Ushers Brewery Ltd v PS King & Co (Finance) Ltd [1972] Ch 148, [1971] 2 All ER 468, the legal charge was assumed to create a notional term.

5 Law of Property Act 1925 s 87(1)(a).

6 Law of Property Act 1925 s 87(1)(b).

7 Law of Property Act 1925 s 87(1). Section 87(1) is not affected by the Land Registration Act 2002 s 23(1)(a) (which provides that owner's powers in relation to a registered estate do not include power to mortgage by demise or sub-demises: see PARA 155): Law of Property Act 1925 s 87(4) (added by the Land Registration Act 2002 s 133, Sch 11 para 2(1), (8)). See also Grand Junction Co Ltd v Bates [1954] 2 QB 160 at 168, [1954] 2 All ER 385 at 388 per Upjohn J; Belgravia Insurance Co Ltd v Meah [1964] 1 QB 436 at 443, [1963] 3 All ER 828 at 831, CA, per Lord Denning MR; Regent Oil Co Ltd v JA Gregory (Hatch End) Ltd [1966] Ch 402 at 431, [1965] 3 All ER 673 at 679, CA, per Harman LJ.

8 See the Law of Property Act 1925 s 87(1).

9 See the Law of Property Act 1925 s 146(4); PARA 401; and LANDLORD AND TENANT vol 27(1) (2006 Reissue) PARA 627.

bhall · November 27, 2013

It is asserted in the other thread that it is not possible to mortgage a registered estate. Again this is based upon a misunderstanding.

104. Legal mortgages.

A legal mortgage of personal property is a conditional assignment to the mortgagee of the mortgagor's legal interest in it1. A legal mortgage of land or an interest in land must be by deed2. A legal mortgage of an estate in unregistered land is effected by a charge by deed expressed to be by way of legal mortgage or a demise or sub-demise for a term of years absolute3. The effect of a legal mortgage by demise is to vest the legal estate in the term of years created by it in the mortgagee, who, unless the deed expressly provides for possession by the mortgagor until default, is immediately entitled upon the execution of the deed to possession of the property4; but the mortgagor's legal estate in the reversion of the term of years is not transferred to the mortgagee until the right of redemption is destroyed by foreclosure or sale or otherwise5. A legal charge does not vest any estate in the mortgagee, but creates a legal interest which confers on the mortgagee the same protection, powers and remedies as a mortgage by demise6. A mortgage of registered land can be made only by a charge by deed expressed to be by way of legal mortgage or by charging the estate with the payment of money, and cannot be made by way of mortgage by demise7.

1 In the Law of Property Act 1925, 'legal mortgage' means a mortgage by demise or sub-demise or a charge by way of legal mortgage, and 'legal mortgagee' has a corresponding meaning; 'mortgage money' means money or money's worth secured by a mortgage; 'mortgagor' includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property; 'mortgagee' includes a chargee by way of legal mortgage and any person from time to time deriving title under the original mortgagee; and 'mortgagee in possession' is a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property: s 205(1)(xvi). As to the meaning of 'mortgage' see PARA 101 note 4; and as to the meaning of 'property' see PARA 101 note 5. As to mortgages of personalty see PARAS 231-237. See also FINANCIAL SERVICES AND INSTITUTIONS vol 50 (2008) PARA 1674 et seq.

2 See the Law of Property Act 1925 s 52(1); and DEEDS AND OTHER INSTRUMENTS vol 13 (2007 Reissue) PARA 14. In the Law of Property Act 1925, 'land' includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; and also includes a manor, an advowson, a rent and other incorporeal hereditaments, and an easement, right, privilege or benefit in, over, or derived from land; 'mines and minerals' include any strata or seam of minerals or substances in or under any land, and powers of working and getting them; 'manor' includes a lordship and reputed manor or lordship; and 'hereditament' means any real property which on an intestacy occurring before 1926 might have devolved upon an heir: s 205(1)(ix) (amended by the Trusts of Land and Appointment of Trustees Act 1996 s 25(2), Sch 4).

3 See the Law of Property Act 1925 ss 85(1), 86(1); and PARAS 190-191. Formerly the legal mortgage of real property was, as the legal mortgage of personal property still is, a conditional assurance: see PARA 187.

4 As to the mortgagee's right to possession see PARAS 338, 402 et seq.

5 As to the equity of redemption or right to redeem see PARA 302 et seq.

6 See the Law of Property Act 1925 s 87(1); and PARA 191. See also Regent Oil Co Ltd v JA Gregory (Hatch End) Ltd [1966] Ch 402 at 433, [1965] 3 All ER 673 at 680, CA, per Harman LJ.

7 See the Land Registration Act 2002 s 23(1); and LAND REGISTRATION vol 26 (2004 Reissue) PARAS 906-907.

bhall · November 27, 2013

Halsbury's also states -

(2) LEGAL AND EQUITABLE MORTGAGES

(i) Legal Mortgages

117. Legal mortgages.

A legal mortgage of unregistered land1 can be created only by demise, sub-demise or legal charge2. A legal mortgage of registered land can be made only by a charge by deed expressed to be by way of legal mortgage or by charging the estate with the payment of money, and not by demise3.

Since, by making a pledge or mortgage of his property, the owner does not cease to be the owner of the property any further than is necessary to give effect to the security he has thus created4, he can mortgage the property again. The mortgagor of a legal estate in land retains his legal estate5, and can create further mortgages by demise or charge6. A subsequent mortgage is, as between mortgagor and mortgagee, a complete security on the mortgagor's interest, saving only the rights of prior incumbrancers7; and, on redemption of the prior mortgage, no reconveyance is required, since a mortgage term ceases on payment off of the mortgage8. A subsequent mortgagee who pays off the first mortgagee may, however, call for a transfer of the first mortgage, and where there are successive mortgagees they may according to their priority exercise the right of paying off the first mortgage and taking a transfer9.

A legal mortgage of personal chattels may be made either by pledge or, subject to certain exceptions, by bill of sale10. A legal mortgage of a debt or other legal chose or thing in action may be made by written assignment complying with the statutory provisions as to the assignment of such choses in action11.

1 As to the meaning of 'land' in the Law of Property Act 1925 see PARA 104 note 2.

2 See the Law of Property Act 1925 s 205(1)(xvi); and PARA 104 note 1. As to creation of legal mortgages see PARA 187 et seq.

3 See the Land Registration Act 2002 ss 23(1), 25; and LAND REGISTRATION vol 26 (2004 Reissue) PARA 906 et seq.

4 Bradford Banking Co Ltd v Briggs, Son & Co Ltd (1886) 12 App Cas 29 at 36, HL, per Lord Blackburn. See also PARA 302.

5 Formerly, a first legal mortgage of freehold land was by conveyance (see PARA 187), so that any subsequent mortgage was equitable only, being a mortgage of the mortgagor's equity of redemption. A subsequent mortgage was formerly called a puisne mortgage, but that term now means a legal mortgage not protected by deposit of documents: see the Land Charges Act 1972 s 2(1), (4)(i); and LAND CHARGES vol 26 (2004 Reissue) PARAS 628-629.

6 As to the priority of mortgages see PARA 258 et seq.

7 See Frazer v Jones (1846) 5 Hare 475 at 481.

8 See the Law of Property Act 1925 s 116; and PARA 642.

9 See the Law of Property Act 1925 s 95(1), (2); and PARA 364.

10 See PARA 231.

11 See the Law of Property Act 1925 s 136(1); and CHOSES IN ACTION vol 13 (2009) PARAS 72, 80-85. Section 136(1) validates only absolute assignments not purporting to be by way of charge only, but a mortgage in ordinary form which transfers the property with a proviso for redemption and reconveyance is such an absolute assignment: see s 136(1); and CHOSES IN ACTION vol 13 (2009) PARA 76.

bhall · November 27, 2013

Now that it has been shown by Halsbury's that the assertion that a borrower is unable to mortgage a registered estate is wrong, I shall post what Halsbury's states in regard to deeds.

33. Signing.

An instrument is validly executed as a deed by an individual1 if, and only if2: (1) it is signed3 by him in the presence of a witness who attests the signature4, or at his direction and in his presence and the presence of two witnesses who each attests the signature5; and (2) it is delivered as a deed6.

This provision does not apply in relation to instruments delivered as deeds before 31 July 19907.

1 This does not include execution by a corporation sole: see the Law of Property (Miscellaneous Provisions) Act 1989 s 1(10); and PARA 32 text to note 3 ante. As to corporations sole see CORPORATIONS.

2 Ibid s 1(3). The requirement of signing contained in the Law of Property Act 1925 s 73(1) (repealed) has been replaced by the Law of Property (Miscellaneous Provisions) Act 1989 s 1(3) (as amended). See also note 6 infra.

3 For the meaning of 'sign' see PARA 8 note 2 ante. It has been held, in relation to ibid s 2 (as amended) (see SALE OF LAND vol 42 (Reissue) PARAS 29-40), that a name printed or typed at the head of a document does not constitute a signature: Firstpost Homes Ltd v Johnson [1995] 4 All ER 355, [1995] 1 WLR 1567, CA. It is thought that this is equally true in relation to the Law of Property (Miscellaneous Provisions) Act 1989 s 1 (as amended): see PARAS 7-8, 32 ante.

4 Ibid s 1(3)(a)(i). Cf Shah v Shah [2001] EWCA Civ 527, [2002] QB 35, [2001] 3 All ER 138; and PARA 36 post. See note 6 infra.

5 Law of Property (Miscellaneous Provisions) Act 1989 s 1(3)(a)(ii). See note 6 infra.

6 Ibid s 1(3)(b) (amended by the Regulatory Reform (Execution of Deeds and Documents) Order 2005, SI 2005/1906, art 10(2), Sch 2).

The Law of Property (Miscellaneous Provisions) Act 1989 s 1(3) (as amended) applies in the case of an instrument executed by an individual in the name or on behalf of another person whether or not that person is also an individual: s 1(4A) (added by the Regulatory Reform (Execution of Deeds and Documents) Order 2005, SI 2005/1906, art 7(4)). As to the application of the Law of Property (Miscellaneous Provisions) Act 1989 s 1(3) (as amended) see also s 1(9); and PARA 7 text and note 4 ante.

7 Ie the date on which ibid s 1 came into force: see s 1(11); and PARA 7 text and note 4 ante.

I have highlighted the above citation to confirm that Halsbury's does take into account the amendments made to the LPA (MP) 1989 by the RRO 2005.

Edited November 27, 2013 by bhall

bhall · November 27, 2013

It has been repeatedly asserted in the other thread that the delivery of the mortgage deed is subject to the signing of the mortgage deed by the Lender. Halsbury's confirms that delivery of a deed is completely unrelated to the signature of the lender.

31. Delivery of deed.

In order to be effective a deed must be delivered as the act and deed of the party expressed to be bound by it, as well as sealed1. No special form or observance is necessary for the delivery of a deed, and it may be made in words or by conduct2. The traditional form of delivering a deed by words was for the executing party to say, while putting his finger on the seal, 'I deliver this as my act and deed'3. It was not necessary, however, to follow this form of execution4, and it fell into disuse; nor is it necessary that the deed should actually be delivered over into the possession or custody either of the person intended to take the benefit of the deed, or to a third person to the use of the party taking the benefit of the deed5; though if the party to be bound so hands over the deed, that is sufficient delivery without any words6.

What is essential to delivery of the document as a deed is that the party whose deed the document is expressed to be (having first sealed it7) must by words or conduct expressly or impliedly acknowledge his intention to be immediately and unconditionally bound by the provisions contained in it8. Thus where a deed has been executed by an attorney in excess of his power, a subsequent acknowledgment by the principal, whether oral or in writing, that the deed expresses his intentions amounts to a delivery or redelivery of the deed9.

If the sealing of a deed is proved, its delivery as a deed may be inferred, provided there is nothing to show that it was only delivered as an escrow10.

1 See PARA 1 ante; YB 9 Hen 6, 37, pl 12; 1 Plowd 308; Goddard's Case (1584) 2 Co Rep 4b; Clayton's Case (1585) 5 Co Rep 1a; Chamberlain v Stanton (1588) Cro Eliz 122; Co Litt 35b, 171b; Willis v Jermin (1590) Cro Eliz 167 per Gawdy J; Termes de la Ley, sv Fait; Shep Touch 50, 57; 2 Bl Com (14th Edn) 306; 3 Preston's Abstracts of Title (2nd Edn) 63; Styles v Wardle (1825) 4 B & C 908 at 911 per Bayley J; Doe d Garnons v Knight (1826) 5 B & C 671; Hall v Bainbridge (1848) 12 QB 699 at 710; Tupper v Foulkes (1861) 9 CBNS 797 at 803; Xenos v Wickham (1863) 14 CBNS 435 at 473, Ex Ch (revsd (1866) LR 2 HL 296 at 309, 312, 320, 323); Mowatt v Castle Steel and Iron Works Co (1886) 34 ChD 58, CA.

As to delivery in relation to instruments delivered as deeds after 31 July 1990 see PARA 34 post.

2 Chamberlain v Stanton (1588) Cro Eliz 122; Thoroughgood's Case (1612) 9 Co Rep 136b; Co Litt 36a, 49b; Shep Touch 57-58; Hall v Bainbridge (1848) 12 QB 699; Tupper v Foulkes (1861) 9 CBNS 797; Xenos v Wickham (1867) LR 2 HL 296.

3 3 Preston's Abstracts of Title (2nd Edn) 63; Xenos v Wickham (1866) LR 2 HL 296; Williams and Eastwood on Real Property 430; and see PARAS 1, 27 ante.

4 Tupper v Foulkes (1861) 9 CBNS 797; Keith v Pratt (1862) 10 WR 296.

5 Doe d Garnons v Knight (1826) 5 B & C 671 at 689-692; Exton v Scott (1833) 6 Sim 31; Grugeon v Gerrard (1840) 4 Y & C Ex 119 at 130; Fletcher v Fletcher (1844) 4 Hare 67 at 79; Evans v Grey (1882) 9 LR Ir 539; Xenos v Wickham (1866) LR 2 HL 296; Macedo v Stroud [1922] 2 AC 330, PC. See also Alford v Lee (1587) Cro Eliz 54 (concerning a bond). As to concealment of execution see PARA 65 post.

6 Butler and Baker's Case (1591) 3 Co Rep 25a at 26b, Ex Ch; Thoroughgood's Case (1612) 9 Co Rep 136b; Doe d Garnons v Knight (1826) 5 B & C 671; Xenos v Wickham (1866) LR 2 HL 296 at 312 per Blackburn J.

7 See PARA 27 ante.

8 See Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609, [1969] 2 All ER 941, CA; and the cases cited in notes 2, 4-5 supra. See also Taw v Bury (1558) 2 Dyer 167a; Parker v Tenant (1560) 2 Dyer 192b; Shelton's Case (1582) Cro Eliz 7; Hollingworth v Ascue (1594) Cro Eliz 355 at 356; R v Longnor Inhabitants (1833) 4 B & Ad 647 at 649; London Freehold and Leasehold Property Co v Baron Suffield [1897] 2 Ch 608, CA. Compare the cases relating to delivery as an escrow, cited in para 37 notes 6-7 post. Acknowledgment of a deed already sealed, but which is in another room, may be sufficient: Powell v London and Provincial Bank [1893] 2 Ch 555 at 566, CA.

9 Re Seymour, Fielding v Seymour [1913] 1 Ch 475, CA.

10 Hall v Bainbridge (1848) 12 QB 699; Keith v Pratt (1862) 10 WR 296; Xenos v Wickham (1866) LR 2 HL 296. Consider also the cases cited in note 8 supra; and PARA 37 notes 6-7 post.

bhall · November 27, 2013

Furthermore, on the topic of if a deed is void if it has not been signed by the Lender - Halsbury's states

(4) EFFECT OF A DEED

57. General effect.

By executing a deed in accordance with all the requirements for such execution1, the party whose act and deed it is becomes, as a general rule, conclusively bound by what he is stated in the deed to be effecting, undertaking or permitting2. He is, in general, so bound even though another party has not executed the deed3, or he has himself executed it in a false name4. He is, as a rule, estopped from averring and proving by extrinsic evidence that the contents of the deed did not in truth express his intentions or did not correctly express them, or that there are reasons why he should not be obliged to give effect to the deed. This is equally the case whether the deed is expressed to operate as a conveyance of property or as a contract or otherwise5. In a claim founded on the deed, an executing party is also in general estopped from denying the truth of a precise and unambiguous representation of fact contained in the deed where the representation is material to the transaction effected by the deed and appears clearly enough to have been made or adopted by him with a view to the other party's relying on it6. However, to all these general principles there are exceptions, cases where the deed may be a nullity or may be avoided or corrected7.

1 See PARAS 1 et seq, 27-34 ante. An instrument intended in a certain event to be an effective deed may be delivered as an escrow, ie so as to become the delivering party's act and deed only if the event occurs: see PARAS 37-39 ante.

2 See PARA 65 post.

3 Lady Naas v Westminster Bank Ltd[1940] AC 366 at 374-375, [1940] 1 All ER 485 at 489, HL. As to the effect of non-execution by a party see further PARA 62 post.

4 See PARA 69 note 1 post. A person whose execution of a deed has been forged is also estopped from denying that he is bound by the deed if, after becoming aware of the forgery, he delays in informing the person ostensibly entitled to the benefit of the deed, so causing detriment to the latter: Fung Kai Sun v Chan Fui Hing[1951] AC 489 at 503, 506, PC; and see PARA 72 post. As to estoppel generally see ESTOPPEL.

5 Littleton's Tenures ss 58, 693; Co Litt 45a, 47b, 352a, 363b; 1 Plowd 308-309; Whelpdale's Case (1604) 5 Co Rep 119a; Style v Hearing (1605) Cro Jac 73; 2 Bl Com (14th Edn) 295, 446; Xenos v Wickham(1866) LR 2 HL 296.

6 See Greer v Kettle[1938] AC 156 at 166-167, [1937] 4 All ER 396 at 401, HL; and ESTOPPEL vol 16(2) (Reissue) PARA 1014 et seq.

7 See PARAS 60, 62-63, 67, 88 post.

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