Repossession questioned by deeds not being signed

[UNRAM]

http://www.legislation.gov.uk/ukpga/2006/46/section/44

 

execution of documents

(2) A document is validly executed by a company if it is signed on behalf of the company—

(a) by two authorised signatories,

...

(3)The following are “authorised signatories” for the purposes of subsection (2)—

(a)every director of the company

...

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

A “purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property.

 

Doesnt the explicitly define the statutory requirement for execution by a mortgagee? What is this consideration requirement? This very strongly implies contractual characteristics...

 

Please can I get further feedback on this... Doesn't this say that a mortgagee has to sign a deed with two authorised signatures?

 

"a document is deemed to have been duly executed by a mortgagee if it purports to be signed in accordance with subsection (2)"?

 

Question: Is it therefore NOT deemed to have been duly executed by a company if it is not signed in accordance with subsection (2).

Edited August 18, 2013 by UNRAM

[IS IT ME?]

Yes you and the lender

[UNRAM]

Yes you and the lender

 

The clause I have included does not say that - but it appears to imply that there are signatory requirements for mortgagees and chargees... purchasers... It also appears to explicitly state that a mortgagee is required to execute... I would appreciate some background information...

[TimetogoRAM]

Given that the Original Lender sends you the Deed without having executed it first.....The process is that ...... your solicitor will have sent your signed and attested deed to the Lenders firm of Solicitor for them to 'execute' the Deed....The Lenders Solicitor is supposed to ensure that it is 'executed' by the Lender prior to submitting it to HMLR......in any event...what we are finding is that they are being sent on to HMLR.....HMLR are then obliged to send your Solicitor a copy of the charge and a copy of the 'approved charging' document.....for your records.....your solicitor will send that on to you with a copy of your title....

 

Neither Your Solicitor or the Lenders Solicitor take note that the disposition is potentially invalid .....both accept that it meets 'charging formalities'....and do not raise any concern as to whether it has met the formalities of a Deed...so, consequently...Borrowers have never ever taken issue with the Deed...surely if there was a concern...your solicitor or at least HMLR would let you know ...right???....eeerm NO...they don't....

 

But when you say you used NRAM's firm of solicitors..... says it all really....

 

Apple

 

 

Should be with the Lender...but HMLR will have been sent a copy of that..... and that 'copy' is referred to as the 'Official Copy'.....for obvious reasons....

 

Thanks..

Yep was nrams solicitors for my remortgage. I think as I remember it, it was free to use their coneyancers if I remortgaged with them. They also used other incentives to entice me into this mortgage like £1000 help with costs etc... Now i know why!!

[applecart]

Many thanks as I think there would be many caggers would be able to find this now

 

Dear Teachers Pet

 

Can you request that this thread is made a 'sticky' as well please?

 

LOL : )

 

Seriously, this is much better....

 

Apple

[applecart]

Please can I get further feedback on this... Doesn't this say that a mortgagee has to sign a deed with two authorised signatures?

 

"a document is deemed to have been duly executed by a mortgagee if it purports to be signed in accordance with subsection (2)"?

 

Question: Is it therefore NOT deemed to have been duly executed by a company if it is not signed in accordance with subsection (2).

 

Hi UNRAM

 

In relation to a 'Deed'.....it would be section 46 of the Companies Act if that is what you mean:...it's here: http://www.legislation.gov.uk/ukpga/2006/46/section/46

 

You will find, there is no way out for any 'Company'....the Law is analogous....when it comes to any Company looking to sign any Document or Deed.....especially when it come to land transactions...which is what you should be concerning yourself with..ok? With a Deed that relates to Land....it is the LPA 1925 section 74 + that you should be looking at....

 

We should never be thinking of any lender as a 'purchaser'... when we are talking 'mortgage' or 're-mortgage'.....we think of them as 'lender'....who in exchange for the money will get a security on the title by way of notice........not 'purchaser'.....to secure that money...they must comply with the formalities in relation to a land transaction.....leaving a deed unexecuted...is not the way to do it......as it would not be for any other type of transaction that they wish to secure by way of deed.....

 

Hope this helps?

 

Apple

[applecart]

Oh please Mr Mannering my head hurts lol

I have every faith in what your posting and that it is correct but as you and I know only to well from passed experience they will try and find a way out if they could

I think I'll ask if this could be changed to

Repossession questioned by legality of deed

That way people would be able to find it and it clearly asks the question

 

Can you imagine how my head feels?......what say Ben's?....(I'm sure he will let us all know in due course)

 

I'm glad you still have faith in the posts I submit......You have come a long way......there is much left to do....but, Let's see what 'response' the lender comes back with....and whether we will get time to make further comment to that ....before your hearing.......

 

They may not serve it until the last minute.....so.... be careful.....ok?

 

Apple

[applecart]

Thanks..

Yep was nrams solicitors for my remortgage. I think as I remember it, it was free to use their coneyancers if I remortgaged with them. They also used other incentives to entice me into this mortgage like £1000 help with costs etc... Now i know why!!

 

I'm pleased it made sense : )

 

Apple

[bhall]

Can you imagine how my head feels?......what say Ben's?....(I'm sure he will let us all know in due course)

 

All Ben has to say is, lets wait and see if for a second time, as it has already the Property Chamber concludes that your assertions on this topic are wrong

 

Ben

[applecart]

All Ben has to say is, lets wait and see if for a second time, as it has already the Property Chamber concludes that your assertions on this topic are wrong

 

Ben

 

All Apple can say is....You've changed your 'image' again....??

 

Apple

[bhall]

I have nothing more to say except

 

Apple

Here is the full reply;

 

Upon reading(?)lol the application dated 10th may under sec 108(2) of the LR Act 2002

and upon the tribunal considering that the application ought to be stuck out as there is no reasonable prospect of the application succeeding.

 

It is ordered as follows;

 

Her Majesty's land reg is to be removed as the respondent[ person against whom an order is sought] to this application

 

The applicant has until 5pm 16th July to make written representations in relation to the proposed striking out of the application

 

This order is made pursuant to rules 9 and 10 of the tribunal procedure (first tier tribunal property chamer rules 2013.

 

Reasons,

 

1 The application is to set aside a charge dated xxyyzzz made between (1) Lender and (2) the borrower HM land registry is not a party to that charge. The application is made under sec 108(2) of the LR act 2002. The tribunal has no power to make an order to alter the register when exercising its jurisdiction under sec 108(2).

 

It can only rectify or set aside a document under sec 108(2) and the register of title is not a document for the purpose of that provision.

So, HM land registry should not be named in part 3 of the application but the lender should be named instead of HM land registry.

 

Charges do not as a matter of law always require execution by the lender as well as the borrower.

 

The charge is created by the borrower not the lender so generally only requires execution by the borrower.

 

The applicant does not contest that they executed the charge so dated.

 

The charge is not in a form showing it required to be executed by the lender.

 

The authorities relied on by the applicants concerned whether documents had been properly executed and not whether a lender is required to execute a charge.

 

The land re form of charge CH1 does not require execution by the lender except where a note on the register of an obligation to make further advances has been applied for.

and that's it.

 

what I would say is that there has been no CH1 form nor have they really read the application because it does very clearly state that the lender should execute the deed.

 

I also note is uses the term generally, always and why say the tribunal can not rectify the register because it's not a document?

 

so what do you think apple lets prove your right.

 

Time for me to go to bed

 

Nite

 

Ben

[IS IT ME?]

How can a borrower charge themselves ?

Surely they grant a charge to the lender

[applecart]

Hi UNRAM

 

I have been trying to find your post to do with LPA 1925 section 85 (5):

 

[F1(5)In its application to instruments made after the coming into force of section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 subsection (1) above shall have effect as if for the words “under seal, and a bond or obligation under seal,” there were substituted the words “bond or obligation executed as a deed in accordance with section 1 of the Law of Property (Miscellaneous Provisions) Act 1989”.]

 

What on earth it is doing there is totally erroneous....because Schedule 1 paragraph 5 of the LP(MP) Act 1989 intended it should be inserted at section 81 of the LPA 1925...have a look see what schedule 1 par (5)

[applecart]

whoops...pressed enter...when didn't intend to...so I will finish what I had to say here....

 

....What on earth it is doing there is totally erroneous....because Schedule 1 paragraph 5 of the LP(MP) Act 1989 intended it should be inserted at section 81 of the LPA 1925...have a look see what schedule 1 par (5) says here:

 

"5The following subsection shall be added at the end of section 81—

“(5)In its application to instruments made after the coming into force of section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 subsection (1) above shall have effect as if for the words “under seal, and a bond or obligation under seal,” there were substituted the words “bond or obligation executed as a deed in accordance with section 1 of the Law of Property (Miscellaneous Provisions) Act 1989”.”

 

That is a HUGE error..You just can't get the Staff can you?

 

least it means that mortgages by demise and the reliance that they were REPEALED under the LRA section 23 remains true without fear of the erroneous existence of a piece of legislation entered under the wrong section.....LOL

 

Apple

[applecart]

I thought it a good idea to capture the whole of section 85 of the LPA 1925 as it stands right now for future reference ...to flag up the error...given that section 81 has been amended in accordance with the LPMPA also:

 

(1)A mortgage of an estate in fee simple shall only be capable of being effected at law either by a demise for a term of years absolute, subject to a provision for cesser on redemption, or by a charge by deed expressed to be by way of legal mortgage:

 

Provided that a first mortgagee shall have the same right to the possession of documents as if his security included the fee simple.

 

(2)Any purported conveyance of an estate in fee simple by way of mortgage made after the commencement of this Act shall (to the extent of the estate of the mortgagor) operate as a demise of the land to the mortgagee for a term of years absolute, without impeachment for waste, but subject to cesser on redemption, in manner following, namely:—

 

(a)A first or only mortgagee shall take a term of three thousand years from the date of the mortgage:

 

(b)A second or subsequent mortgagee shall take a term (commencing from the date of the mortgage) one day longer than the term vested in the first or other mortgagee whose security ranks immediately before that of such second or subsequent mortgagee:and, in this subsection, any such purported conveyance as aforesaid includes an absolute conveyance with a deed of defeasance and any other assurance which, but for this subsection, would operate in effect to vest the fee simple in a mortgagee subject to redemption.

 

(3)[F1Subsection (2) does not apply to registered land, but, subject to that, this section applies whether or not the land is registered land and whether or not]F1 the mortgage is expressed to be made by way of trust for sale or otherwise.

 

(4)Without prejudice to the provisions of this Act respecting legal and equitable powers, every power to mortgage or to lend money on mortgage of an estate in fee simple shall be construed as a power 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.

 

[F2(5)In its application to instruments made after the coming into force of section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 subsection (1) above shall have effect as if for the words “under seal, and a bond or obligation under seal,” there were substituted the words “bond or obligation executed as a deed in accordance with section 1 of the Law of Property (Miscellaneous Provisions) Act 1989”.]

Yep, that's what it looks like....totally erroneous, totally misplaced, and totally misguiding (not really, given that section 85 (1) makes no reference to bonds and the like...but was enough to confuse a consumer...eeeermmm.... got to ask... was that it's intent????...I could swear it wasn't there when I first got involved on this thread.....ummmm)

 

Apple

[IS IT ME?]

I could not find this new piece of the regs when I looked and I'll have to check the printout I did

[bhall]

How can a borrower charge themselves ?

Surely they grant a charge to the lender

 

Yes Is It Me?

 

You are absolutely, 100% correct the borrower does grant (give) a charge to the lender - Only someone with no real understanding of Property Law would disagree.

 

 

 

Ben

Edited August 20, 2013 by bhall

[applecart]

How can a borrower charge themselves ?

Surely they grant a charge to the lender

 

I totally get where you are coming from....

 

I have purposely avoided use of the word 'charge'...it's interpretation etc...simply because I don't want to mislead Caggers into thinking that a

document that is signed by them alone...that will be more than valid to grant a 'Charge'....would mean that the said same document as signed by them alone.....would mean that they have signed a 'valid' 'Deed' ......

 

The result, when you confuse the two concepts was demonstrated in the reply you received from the Property Chamber.....to say...the 'Charge' is not in a form that needs to be executed by the Lender...the 'Charge' is 'this'; the Charge is 'that'.....and basically...they minded that they were going to strike out the application....

 

We don't want other Caggers getting a similar reply....

 

A 'Charge' document..... need only be in a form approved by HMLR....signed by the borrower alone...for it's validity

 

A 'Deed'.....must meet the formalities as stated in the applicable law....signed by Lender and Borrower.....for it's validity....

 

We are talking.....DEEDS....so that if the 'Deed' is void.....the 'Charge' can be rectified or removed from the Borrowers title

 

Apple

[applecart]

I could not find this new piece of the regs when I looked and I'll have to check the printout I did

 

Yes, I spotted UNRAM's question and returned to it to investigate....it was a wee bit of a conundrum....to find section 23 said 'no' to mortgages by demise etc and then this 'oddity' appearing in section 85 (5)...as if to say.....mortgages by demise are ok....

 

Strange .....very Strange......

 

Apple

[applecart]

Yes Is It Me?

 

You are absolutely, 100% correct the borrower does grant (give) a charge to the lender - Only someone with no real understanding of Property Law would disagree.

 

 

 

Ben

 

I take it you are referring to moi?

 

Your sooooo cruel Ben, sooooo Cruel : )

 

Apple

[bhall]

I totally get where you are coming from....

 

I have purposely avoided use of the word 'charge'...it's interpretation etc...simply because I don't want to mislead Caggers into thinking that a

document that is signed by them alone...that will be more than valid to grant a 'Charge'....would mean that the said same document as signed by them alone.....would mean that they have signed a 'valid' 'Deed' ......

 

The result, when you confuse the two concepts was demonstrated in the reply you received from the Property Chamber.....to say...the 'Charge' is not in a form that needs to be executed by the Lender...the 'Charge' is 'this'; the Charge is 'that'.....and basically...they minded that they were going to strike out the application....

 

We don't want other Caggers getting a similar reply....

 

A 'Charge' document..... need only be in a form approved by HMLR....signed by the borrower alone...for it's validity

 

A 'Deed'.....must meet the formalities as stated in the applicable law....signed by Lender and Borrower.....for it's validity....

 

We are talking.....DEEDS....so that if the 'Deed' is void.....the 'Charge' can be rectified or removed from the Borrowers title

 

Apple

 

 

Apple

 

Why try to promote unnecessary complexity, mystique and confusion, when there is none, over something so straight forward as a 'charge by deed expressed to be by way of legal mortgage' ?

 

It is like your posts about mortgage by demise - It was you that first said out of no where that it is a mortgage by demise (even though it clearly isn't) and then you go on to say it can't be, as a borrower can't grant a mortgage by a demise (by law a borrower can and does grant a charge by deed expressed to be by way of legal mortgage).

 

The lender doesn't claim it is a mortgage by demise (only you). The lender claims that it has a charge by deed expressed to be by way of legal mortgage. Whilst it has the same effect as a mortgage by demise (as in it grants the lender the same powers as if it was a mortgage by demise) it is not a mortgage by demise. - very straight forward.

 

Another example is your assertions in relation to what constitutes 'delivery'. Delivery has nothing to do with the signature of the Lender. Delivery occurs as a result of an expression of intent by the grantor to be bound by their deed (an example being the deed being sent to the Land Registry to be completed by registration)

 

I think I must have more faith in the Property Chamber, as it is clear by their initial response - by the use of common sense rather than your interpretation, to understand exactly what is said.

 

If not the deed, what document do you imagine the Property Chamber is referring to when it said that it does not generally need to be executed by the lender ?

 

The deed is the document that is executed by the borrower , when a borrower grants a charge (a charge by deed expressed by way of legal mortgage).

 

Remember s.52 of the LPA 1925, confirms that the document must be a deed.

 

The Property Chamber said:

 

Charges do not as a matter of law always require execution by the lender as well as the borrower.

 

The charge is created by the borrower not the lender so generally only requires execution by the borrower.

 

The applicant does not contest that they executed the charge so dated.

 

The charge is not in a form showing it required to be executed by the lender.

 

The authorities relied on by the applicants concerned whether documents had been properly executed and not whether a lender is required to execute a charge.

 

There can be no doubt (unless you wish it) that the document in question is the mortgage deed.

 

To try to confuse the use of language serves no real benefit and if anything your repeated attempts to do so is the real distraction to this thread.

 

I can only hope that the decision made by the Property Chamber following the hearing, is in sufficiently clear language to prevent further attempts to cause confusion.

 

Virtually everything you have posted in this thread is based on your interpretation and on you telling people what things 'really' mean ;-)

 

There is nothing within legislation (amended or otherwise) that has been posted in this thread that expressly states that a lender must sign a mortgage deed for it to be valid - The references you have provided in this thread always come with your interpretation - telling people that even though it doesn't actually say it, it means this, this and that.

 

Both s.2 of the LPA MP 1989 and the CCA 1974 contain sections confirming that the applicable agreement to each legislation must be signed by both parties.

 

If the legislator had intended there to be such a requirement applicable to deeds, don't you think the legislation would say so in s.1 of the LPA MP 1989, equally as clearly as it does in s.2 of the LPA MP 1989 and the CCA 1974?

 

The fact remains s.1 of the LPA MP 1989 does not state that the deed must be signed by both the borrower and the lender. Instead you use the legislation that applies to when a company grants a deed of its own.

 

There has been no case law posted that expressly says that a lender must sign a mortgage deed for it to be valid - The references you have posted have been provided in this thread always come with your interpretation - telling people again that even though it does not say it, it means this, this and that.

 

However, there has been case law posted that expressly states the lender does not have to sign.

 

Takeaway your interpretation and neither case law or legislation expressly state that a deed must be signed by a lender to be valid.

 

The Property Chamber has already replied and said that the Lender does not always need to sign.

 

Yet you try to twist it's response to cause sufficient confusion in an attempt to support your previous assertions.

 

Is any of that really helping Is It Me?'s friend or anyone else for that matter. You can continue to dismiss my posts and contributions as 'distractions' - bear in mind the truth will soon be revealed.

 

The truth will reveal the real distractions.

 

I apologise in advance if anything posted above causes offence. I personally feel that time had come for it to be said.

 

No doubt your usual condescending response will follow.

 

Ben

Edited August 20, 2013 by bhall

[UNRAM]

bhall and apple,

 

I would appreciate both of your opinions on these questions...

 

1. does a mortgage deed need to be signed by a lender if

 

(i) there are terms and conditions referenced within it?

and/or (please specify)

(ii) there are obligations placed upon the lender. i.e. for further advances.

 

2. is a mortgage deed referencing "standard" terms and conditions (for the future mortgage, not the deed), with a clause that they have been read and accepted, essentially a "contract for a mortgage in the future"? It would seem to be the case as the life of the deed predates that of the mortgage.

 

Helden v Strathmore Ltd [2011] 2 EGLR 39. http://www.bailii.org/ew/cases/EWCA/Civ/2011/542.html [27] "[LPMPA1989] Section 2 is concerned with contracts for the creation or sale of legal estates or interests in land, not with documents which actually create or transfer such estates or interests. A contract to transfer a freehold or a lease in the future, a contract to grant a lease in the future or a contract for a mortgage in the future are all within the reach of the section, provided of course that the ultimate subject matter is land. However, an actual transfer, conveyance or assignment, an actual lease, or an actual mortgage are not within the scope of section 2 at all".

 

3. I would appreciate your views on the above verdict...

 

4. Is a deed with t & c still a specialty contract or does it become a simple contract?

 

5. Is the phrase "signed as a deed" still relevant in the t&c by deed case?

Edited August 20, 2013 by UNRAM

[applecart]

bhall and apple,

 

I would appreciate both of your opinions on these questions...

 

1. does a mortgage deed need to be signed by a lender if

 

(i) there are terms and conditions referenced within it?

and/or (please specify)

(ii) there are obligations placed upon the lender. i.e. for further advances.

 

2. is a mortgage deed referencing "standard" terms and conditions (for the future mortgage, not the deed), with a clause that they have been read and accepted, essentially a "contract for a mortgage in the future"? It would seem to be the case as the life of the deed predates that of the mortgage.

 

Helden v Strathmore Ltd [2011] 2 EGLR 39. http://www.bailii.org/ew/cases/EWCA/Civ/2011/542.html [27] "[LPMPA1989] Section 2 is concerned with contracts for the creation or sale of legal estates or interests in land, not with documents which actually create or transfer such estates or interests. A contract to transfer a freehold or a lease in the future, a contract to grant a lease in the future or a contract for a mortgage in the future are all within the reach of the section, provided of course that the ultimate subject matter is land. However, an actual transfer, conveyance or assignment, an actual lease, or an actual mortgage are not within the scope of section 2 at all".

 

3. I would appreciate your views on the above verdict...

 

4. Is a deed with t & c still a specialty contract or does it become a simple contract?

 

5. Is the phrase "signed as a deed" still relevant in the t&c by deed case?

 

Hi UNRAM

 

Over to you Ben..... : )

 

Apple

[applecart]

Oooo....it would seem that Ben is not logged in.....

 

I found this on this personal thread to do with mortgage deeds lenders execution.....don't know if it will assist you...but it was for the benefit of another cagger...this is what it says:

 

"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 signatureicon 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 estoppelicon 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 courticon'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"

 

Apple

[IS IT ME?]

Why then before all this selling of mortgages the American way came here deeds had to be signed by both parties and sealed (1999) I have one and its witness and signed so what's changed Ben ? Only the form they use now which is there own