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

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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.


 

Yes Mark, I am Bones

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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 by bhall

 

Yes Mark, I am Bones

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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.


 

Yes Mark, I am Bones

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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.


 

Yes Mark, I am Bones

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Halsbury's also states -

 

 

 

63. Effect of disclaimer.

 

If the other party or parties to a deed are under no obligation, independently of the deed, to execute it or abide by its provisions, the deed is liable to be avoided by his or their disclaimer of the benefit of it1. Thus a deed of grant or other assurance of property takes effect immediately upon its execution by the grantor or assuror, and then at once passes the property expressed to be assured to the grantee or alienee, although the latter has not executed or assented to the deed, subject, however, to the property revesting in the alienor in case the benefit of the assurance is disclaimed2. Further, an obligation or duty undertaken by deed is immediately binding on the person on whom it is incumbent from the moment of his execution of the deed, and before the person who is to take the benefit of the liability so assumed has expressed his assent to the transaction3 although the latter may subsequently disclaim the benefit of the obligation4.

 

 

1 YB 7 Edw 4, 20 (pl 21), 29 (pl 14); Littleton's Tenures ss 684-685; Butler and Baker's Case (1591) 3 Co Rep 25a at 26b, 27a, Ex Ch; Whelpdale's Case (1604) 5 Co Rep 119a at 119b; Shep Touch 70, 284-285; Thompson v Leach (1690) 2 Vent 198 at 202, 208; Wankford v Wankford (1699) 1 Salk 299 at 307 per Holt CJ; Siggers v Evans (1855) 5 E & B 367 at 380 et seq; Peacock v Eastland (1870) LR 10 Eq 17; Re Deveze, ex p Cote (1873) 9 Ch App 27 at 32; Standing v Bowring (1885) 31 ChD 282 at 286, 288, 290, CA; Re Birchall, Birchall v Ashton (1889) 40 ChD 436 at 439, CA; Mallott v Wilson [1903] 2 Ch 494 at 500-502. As to disclaimer see PARAS 74-75 post.

 

2 See note 1 supra.

 

3 Butler and Baker's Case (1591) 3 Co Rep 25a at 26b, 27a, Ex Ch; and see Hall v Palmer (1844) 3 Hare 532; Xenos v Wickham (1866) LR 2 HL 296.

 

4 Wetherell v Langston (1847) 1 Exch 634, Ex Ch; and see note 1 supra.


 

Yes Mark, I am Bones

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It has often been asserted by the other thread that s.23(2) of the Land Registration Act 2002 applies to the powers of the borrower and not the lender. Again Halsbury's confirms that this assertion is based upon a misunderstanding of the law.

 

http://www.legislation.gov.uk/ukpga/2002/9/section/23

 

 

(2)Owner’s powers in relation to a registered charge consist of—

 

(a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a legal sub-mortgage, and

 

(b)power to charge at law with the payment of money indebtedness secured by the registered charge

 

As confirmed by Schedule 2 of the Land Registration Act 2002

 

http://www.legislation.gov.uk/ukpga/2002/9/schedule/2

 

Creation of legal charge

 

8 In the case of the creation of a charge, the chargee, or his successor in title, must be entered in the register as the proprietor of the charge.

 

 

 

(iii) Statutory Power of Sale

 

443. Application of the statutory power.

 

A power of sale is conferred by statute1. The mortgage must be made by deed, but, subject to this, the power applies to any mortgage, charge or lien on real or personal property or any interest in it, or any thing in action2, except certain bills of sale3, and possibly debentures upon a statutory public utility company4.

 

The registered proprietor or person entitled to be registered as proprietor of a registered charge over registered land is entitled to exercise owners' powers5, which include power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a legal sub-mortgage6.

 

An equitable mortgagee under a memorandum of charge by deed containing an appropriate power of attorney7 can convey the legal estate on sale by him in exercise of the statutory power of sale8. The power of sale does not affect the right of foreclosure9, may be varied or extended by the mortgage deed, applies to the mortgage only so far as a contrary intention is not expressed in it, and has effect subject to the terms of the mortgage deed and to the provisions contained in it10.

 

 

1 See the Law of Property Act 1925 s 101(1)(i), (5). The power in s 101(1)(i) is subject to the Commonhold and Leasehold Reform Act 2002 s 21 (no disposition of part-units: see COMMONHOLD vol 13 (2009) PARA 350): Law of Property Act 1925 s 101(1A) (added by the Commonhold and Leasehold Reform Act 2002 s 68, Sch 5 para 2). As to mortgages of commonhold land see PARA 203.

 

2 See the Law of Property Act 1925 s 205(1)(xvi), (xx).

 

3 Ie bills of sale subject to the Bills of Sale Act 1878 (Amendment) Act 1882: see Calvert v Thomas (1887) 19 QBD 204, CA. See also FINANCIAL SERVICES AND INSTITUTIONS vol 50 (2008) PARA 1742.

 

4 In Blaker v Herts and Essex Waterworks Co (1889) 41 ChD 399 at 406, debentures of all companies were thought to be excluded; but Deyes v Wood [1911] 1 KB 806 at 818, CA, suggests that the exclusion is limited as stated in the text. As to enforcing a security under the Consumer Credit Act 1974 see CONSUMER CREDIT vol 9(1) (Reissue) PARA 220 et seq.

 

5 See the Land Registration Act 2002 s 24; and LAND REGISTRATION vol 26 (2004 Reissue) PARA 908.

 

6 See the Land Registration Act 2002 s 23(2).

 

7 See PARA 133.

 

8 See Re White Rose Cottage [1965] Ch 940, [1965] 1 All ER 11, CA.

 

9 Law of Property Act 1925 s 106(2). As to foreclosure see PARA 566 et seq.

 

10 See the Law of Property Act 1925 s 101(3), (4).


 

Yes Mark, I am Bones

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Finally in the other thread, it has been repeatedly asserted that securitisation results in the lender losing its right to possession. Halsbury's confirms that this is also a misunderstanding.

 

 

 

386. Securitisation of mortgages.

 

Securitisation is the sale of a package of mortgage debts to a corporate vehicle (the 'issuer') established for the purpose of issuing securities usually in bearer form such as bonds. One or more mortgagees (the 'originator') may agree to sell debts and related security to the issuer. This effects an equitable assignment of the mortgages which is not perfected by notice to the mortgagors or by registration. The issuer is entitled to call for a legal transfer of legal title to the mortgages in certain circumstances such as the persistent default or insolvency of the originator. The issuer is given an irrevocable power of attorney to effect the transfer and for certain other purposes1. The originator retains the powers of the mortgagee, including the right to possession2 but agrees to act in accordance with the instructions of the issuer in relation to matters such as interest rates and enforcement. The undertaking and assets of the issuer, including the mortgages, are in turn charged in favour of a security trustee for the benefit of the holders of notes or bonds issued by the issuer3. The security trustee is given custody of the charge certificates or, in the case of unregistered land, mortgages and title deeds, and is given an irrevocable power of attorney to effect a legal transfer of the mortgages4.

 

 

1 See the Powers of Attorney Act 1971 s 4; and AGENCY vol 1 (2008) PARA 175.

 

2 See Paragon Finance plc v Pender [2005] EWCA Civ 760, [2005] All ER (D) 307 (Jun).

 

3 The charge takes effect as an equitable sub-charge. As to equitable charges see PARAS 106, 118 et seq, 139 et seq.

 

4 As to transfer of mortgages see PARA 364 et seq.


 

Yes Mark, I am Bones

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Even when you cross reference / take into account other legislation, there is still nothing that states that a mortgage deed (not including an obligation to provide a further advance) must be signed by the lender, otherwise it is void.

 

The simple explanation for this is that mortgage deed (except those that include an obligation to provide a further advance) when read, contain no obligations for the lender. The Lender does not need to sign it, as there is nothing within the actual mortgage deed that it is agreeing to do.

 

A mortgage deed, details the obligations of the borrower only.

 

I have posted this before in this thread and recently a CAGGER has been to Court and faced the same argument from the Lenders legal representative.

 

My view is that in terms of interest rates, lack of support in difficult times and repossession, it would make more sense to look at how these are adversely effected by securitisation and to look towards the fairness towards the borrower and how securitisation may have contributed or even led to repossession.

 

Examples

 

Following securitisation is the lender prevented from extending the term, providing a product switch, changing to interest only etc etc..

 

 

Better to use arguments based on the law rather than those that are contrary to it.

 

 

Hi Ben,

 

I wonder if you can supply a reason and where it says in law that a Lender must sign the charge which creates the Deed as well as the Borrower when they deem that there is an obligation to make further advances on the Lender?

 

You agree? It seems that in these circumstances, where there is an obligation placed on the Lender to make further advances the Lender should sign? yes?

 

As you know a note will be entered into the LR register to that effect presumably so that any subsequent charges by any other party will rank behnd any further lending to the Borrower by this lender. So, if you agree that in this circumstance the Lender should sign the Deed, where in law does this eminate from?

 

From my perspective ( I may be being simplistic but not simple ;-) ) in any ordinary relationship between Borower and Lender there is always obligations on the shoulders of each party i.e. The Borrower agrees to repay money which the Lender has lent at an agreed rate of interest under terms and conditions agreed between the parties and equally, there is therefore obligation on the Lender to fulfill the borrowing requirements and lend the stated amount of money at the agreed rate for no more or no less and could for not for eg alter the interest rate if it was not stated in the loan agreement etc

 

Likewise, the LR state on their own form of charge CH1 that if the obligation exists for the lender to make further advances, they require the Lender to sign i.e. execute. Where has this come from and if this is the requirement, why when LR approve forms of charge and issue MD nos do they not still require the Lenders signature in exactly the same circumstances?

 

On a note re Halsburys Law. It is just a voice and expression of overview of the current law. Judges can and do ignore what Halsburys says. It is not definitive and absolute.

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Hi Ben,

 

I wonder if you can supply a reason and where it says in law that a Lender must sign the charge which creates the Deed as well as the Borrower when they deem that there is an obligation to make further advances on the Lender?

 

You agree? It seems that in these circumstances, where there is an obligation placed on the Lender to make further advances the Lender should sign? yes?

 

As you know a note will be entered into the LR register to that effect presumably so that any subsequent charges by any other party will rank behnd any further lending to the Borrower by this lender. So, if you agree that in this circumstance the Lender should sign the Deed, where in law does this eminate from?

 

From my perspective ( I may be being simplistic but not simple ;-) ) in any ordinary relationship between Borower and Lender there is always obligations on the shoulders of each party i.e. The Borrower agrees to repay money which the Lender has lent at an agreed rate of interest under terms and conditions agreed between the parties and equally, there is therefore obligation on the Lender to fulfill the borrowing requirements and lend the stated amount of money at the agreed rate for no more or no less and could for not for eg alter the interest rate if it was not stated in the loan agreement etc

 

Likewise, the LR state on their own form of charge CH1 that if the obligation exists for the lender to make further advances, they require the Lender to sign i.e. execute. Where has this come from and if this is the requirement, why when LR approve forms of charge and issue MD nos do they not still require the Lenders signature in exactly the same circumstances?

 

On a note re Halsburys Law. It is just a voice and expression of overview of the current law. Judges can and do ignore what Halsburys says. It is not definitive and absolute.

 

Hello WP

 

I have previously posted a nationwide mortgage deed that contains an expressed (not implied) term that the lender is obligated to provide a further advance. That particular mortgage deed, also unlike the others posted, does indeed include a place for the lender to sign. In terms of the law applicable to 'further advances' this case be found in the LRA 2002 and previous legislation.

 

In terms of Halsbury's it is based upon established case law and direct reference to legislation- I would place more strength on it than Apples interpretations and 'fanciful ideas'. Especially when Halsbury's shows so clearly how flawed those interpretations and fanciful ideas are.

Edited by bhall

 

Yes Mark, I am Bones

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Hello WP

 

I have previously posted a nationwide mortgage deed that contains an expressed (not implied) term that the lender is obligated to provide a further advance. That particular mortgage deed, also unlike the others posted, does indeed include a place for the lender to sign. In terms of the law applicable to 'further advances' this case be found in the LRA 2002 and previous legislation.

 

In terms of Halsbury's it is based upon established case law and direct reference to legislation- I would place more strength on it than Apples interpretations and 'fanciful ideas'. Especially when Halsbury's shows so clearly how flawed those interpretations and fanciful ideas are.

 

Where exactly in LRA 2002 and previous legislation? does it actually say?? i've had a look but cannot find. Can you direct me Ben to the exact place please. Many thanks. WP

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Hi

 

i contributed to the other thread on this issue not realizing that it had undergone such rigorous debate previously, after reading this thread I have to say that I am content that I came to the correct conclusion , which IMO coincides with that expressed by bhall. I must admit that opinion was in absence of much of the further re enforcement to that view which is presented on here, and therefore to a degree dumb luck on my part.

 

As an aside I personally would like to thank applecart and others for arguing a view that largely differs, as without them this debate would not gave taken place and I for one would not now be in the possession of the knowledge i now have.

 

It is trite but none the less true to say knowledge is power.

Edited by Dodgeball
not purely "bunb lick"

DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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23 Owner’s powers

 

(1)Owner’s powers in relation to a registered estate consist of—

 

(a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a mortgage by demise or sub-demise, and

 

(b)power to charge the estate at law with the payment of money.

 

(2)Owner’s powers in relation to a registered charge consist of—

 

(a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a legal sub-mortgage, and

 

(b)power to charge at law with the payment of money indebtedness secured by the registered charge.

 

(3)In subsection (2)(a), “legal sub-mortgage” means—

 

(a)a transfer by way of mortgage,

 

(b)a sub-mortgage by sub-demise, and

 

©a charge by way of legal mortgage.

ONWERS ie are the BORROWERS Ben NOT THE LENDERS

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23 Owner’s powers

 

(1)Owner’s powers in relation to a registered estate consist of—

 

(a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a mortgage by demise or sub-demise, and

 

(b)power to charge the estate at law with the payment of money.

 

(2)Owner’s powers in relation to a registered charge consist of—

 

(a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a legal sub-mortgage, and

 

(b)power to charge at law with the payment of money indebtedness secured by the registered charge.

 

(3)In subsection (2)(a), “legal sub-mortgage” means—

 

(a)a transfer by way of mortgage,

 

(b)a sub-mortgage by sub-demise, and

 

©a charge by way of legal mortgage.

ONWERS ie are the BORROWERS Ben NOT THE LENDERS

 

The law says different (if I say that in capital letters will it help, i will give it a try, as you often do) THE LAW SAYS DIFFERENT

 

 

I think you need to take a little time to read the Land Registration Act 2002.

 

http://www.legislation.gov.uk/ukpga/2002/9/schedule/2

 

Creation of legal charge

 

8 In the case of the creation of a charge, the chargee, or his successor in title, must be entered in the register as the proprietor of the charge.

 

The law confirms that the chargee (that would be the lender) must be entered in the register as the proprietor of the charge

 

It is written in plain english and no matter how extensive Apples mysterious powers of interpretation and translation are, the meaning can not be changed.

 

So that is clear that the lender as chargee must be registered as proprietor of the charge, please refer to the explanatory notes for the Land Registration Act 2002 - You should rely upon the official explanatory notes - not what Apple wants things to mean (just some friendly advice)

 

http://www.legislation.gov.uk/ukpga/.../division/4/14

 

Creation of legal charge

 

223.Paragraph 8 relates to a newly created charge over a registered estate or a registered rentcharge. The charge must be recorded in the register relating to the registered estate and show the chargee (typically the lender) as proprietor of that charge.

 

Notice the words 'registered estate' ?

 

Anyway, so the law is clear that the lender as chargee must be recorded in the register as the proprietor of the charge - This is not even disputable, nevermind how much Apple may try - it says what it says....

 

So now we have established beyond any reasonable question that the lender must by law be registered as the proprietor of the charge, we go back to the Land Registration Act 2002.

 

http://www.legislation.gov.uk/ukpga/2002/9/section/23

 

I will focus on s.23(2) as I think it is accepted by everyone that s.23(1) relates to the borrower.

 

"(2)Owner’s powers in relation to a registered charge consist of—

 

(a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a legal sub-mortgage, and

 

(b)power to charge at law with the payment of money indebtedness secured by the registered charge."

 

Please note the law 'owner's powers in relation to a registered charge'

 

The biggest hint for you (and for that matter Apple) is that it says registered charge - This is a charge that is effective at law as it has been completed by registration. If the charge is registered, the estate must also be registered (blowing Apples fanciful theories apart)

 

Anyway returning back to the LRA 2002

 

http://www.legislation.gov.uk/ukpga/2002/9/section/24

 

24 Right to exercise owner’s powers

 

A person is entitled to exercise owner’s powers in relation to a registered estate or charge if he is—

 

(a)the registered proprietor, or

 

(b)entitled to be registered as the proprietor.

 

A person is entitled to exercise owner's powers in relation to a registered charge if he is the registered proprietor.

 

Now who must by law be recorded as the proprietor of the charge ?

 

Oh yes, I remember, by law the lender must be recorded as the registered proprietor of the charge. Therefore, by law, the lender as the registered proprietor of the charge is entitled to exercise the owner's powers in relation to that registered charge.

 

Nice, simple, straightforward and undeniable.

 

I hope that is now very clear for you that the owners powers in regard to the registered charge.

 

Ben


 

Yes Mark, I am Bones

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To confirm that the above is not just my personal opinion

 

Halsbury's Laws of England/mortgage (VOLUME 77 (2010) 5TH EDITION)/8. RIGHTS AND LIABILITIES OF THE MORTGAGEE/(4) SALE OUT OF COURT/(iii) Statutory Power of Sale/443. Application of the statutory power.

 

(iii) Statutory Power of Sale

 

443. Application of the statutory power.

 

A power of sale is conferred by statute1. The mortgage must be made by deed, but, subject to this, the power applies to any mortgage, charge or lien on real or personal property or any interest in it, or any thing in action2, except certain bills of sale3, and possibly debentures upon a statutory public utility company4.

 

The registered proprietor or person entitled to be registered as proprietor of a registered charge over registered land is entitled to exercise owners' powers5, which include power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a legal sub-mortgage6.

An equitable mortgagee under a memorandum of charge by deed containing an appropriate power of attorney7 can convey the legal estate on sale by him in exercise of the statutory power of sale8. The power of sale does not affect the right of foreclosure9, may be varied or extended by the mortgage deed, applies to the mortgage only so far as a contrary intention is not expressed in it, and has effect subject to the terms of the mortgage deed and to the provisions contained in it10.

 

 

1 See the Law of Property Act 1925 s 101(1)(i), (5). The power in s 101(1)(i) is subject to the Commonhold and Leasehold Reform Act 2002 s 21 (no disposition of part-units: see COMMONHOLD vol 13 (2009) PARA 350): Law of Property Act 1925 s 101(1A) (added by the Commonhold and Leasehold Reform Act 2002 s 68, Sch 5 para 2). As to mortgages of commonhold land see PARA 203.

 

2 See the Law of Property Act 1925 s 205(1)(xvi), (xx).

 

3 Ie bills of sale subject to the Bills of Sale Act 1878 (amendment) Act 1882: see Calvert v Thomas (1887) 19 QBD 204, CA. See also FINANCIAL SERVICES AND INSTITUTIONS vol 50 (2008) PARA 1742.

 

4 In Blaker v Herts and Essex Waterworks Co (1889) 41 ChD 399 at 406, debentures of all companies were thought to be excluded; but Deyes v Wood [1911] 1 KB 806 at 818, CA, suggests that the exclusion is limited as stated in the text. As to enforcing a security under the Consumer Credit Act 1974 see CONSUMER CREDIT vol 9(1) (Reissue) PARA 220 et seq.

 

5 See the Land Registration Act 2002 s 24; and LAND REGISTRATION vol 26 (2004 Reissue) PARA 908.

 

6 See the Land Registration Act 2002 s 23(2).

 

7 See PARA 133.

 

8 See Re White Rose Cottage [1965] Ch 940, [1965] 1 All ER 11, CA.

 

9 Law of Property Act 1925 s 106(2). As to foreclosure see PARA 566 et seq.

 

10 See the Law of Property Act 1925 s 101(3), (4).


 

Yes Mark, I am Bones

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23 Owner’s powers

 

(1)Owner’s powers in relation to a registered estate consist of—

 

(a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a mortgage by demise or sub-demise, and

 

(b)power to charge the estate at law with the payment of money.

 

(2)Owner’s powers in relation to a registered charge consist of—

 

(a)power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a legal sub-mortgage, and

 

(b)power to charge at law with the payment of money indebtedness secured by the registered charge.

 

(3)In subsection (2)(a), “legal sub-mortgage” means—

 

(a)a transfer by way of mortgage,

 

(b)a sub-mortgage by sub-demise, and

 

©a charge by way of legal mortgage.

ONWERS ie are the BORROWERS Ben NOT THE LENDERS

 

How would the borrower do this ?


DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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Hello Is It Me?

 

I am sorry, I forgot to also previously mention the Land Registration Rules 2003

 

http://www.legislation.gov.uk/uksi/2003/1417/article/9/made

 

Contents of the charges register

 

9. The charges register of a registered estate must contain, where appropriate—

 

(a)details of leases, charges, and any other interests which adversely affect the registered estate subsisting at the time of first registration of the estate or created thereafter,

 

(b)any dealings with the interests referred to in paragraph (a), or affecting their priority, which are capable of being noted on the register,

 

©sufficient details to enable any registered charge to be identified,

 

(d)the name of the proprietor of any registered charge including, where the proprietor is a company registered under the Companies Acts, or a limited liability partnership incorporated under the Limited Liability Partnerships Act 2000, its registered number,

 

(e)an address for service of the proprietor of any registered charge in accordance with rule 198,

 

(f)restrictions under section 40 of the Act, including one entered under section 86(4) of the Act, in relation to a registered charge,

 

(g)notices under section 86(2) of the Act in relation to a registered charge, and

 

(h)such other matters affecting the registered estate or any registered charge as are required to be entered in the charges register by these rules.

 

 

 

Firstly, you will note 'registered estate'

 

Secondly, take a look at your own property documents - In relation to (d) above, who in the charges register for your property is detailed as the proprietor of the charge ? Is it you, or is it your lender ?

 

Don't worry you don't need to answer that question, as I already know it is your lender.


 

Yes Mark, I am Bones

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To prove my point - this is a link to an example of a title register, used by the land registry

 

https://eservices.landregistry.gov.uk/www/wps/QDMPS-Portlet/resources/example_register.pdf

 

This is the charges register

 

Screenshot_243_zps7de1b0ae.jpg

 

 

 

which clearly notes the lender and not the borrower as the proprietor of the charge

 

 

 

Screenshot_1_zps87824916.jpg


 

Yes Mark, I am Bones

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