Repossession questioned by deeds not being signed

[applecart]

Oh OK will do the last one again.

you say

"sub-section (4) to LPA s.87 done to say purely that in relation to unregistered land lra s.23 does not apply."

 

The act actually says

[F1(4)Subsection (1) of this section shall not be taken to be affected by section 23(1)(a) of the Land Registration Act 2002 (under which owner’s powers in relation to a registered estate do not include power to mortgage by demise or sub-demise).F1]

 

You see what i mean about being able to understand what you read, it is not about "interpretation" in you case it is basic comprehension. "shall not be taken to be" not does not apply.

 

Section 87 is not effected by section 23, unless it regards making a mortgage under demise etc, then it is forbidden. This does not prevent mortgage by way of charge because sub section says "shall not be be taken to be affected by" subsection 23(1((a) and this says ;

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

 

It forbids mortgages by demise that is all, if you do not belive me read the buckets of confirmation in court cases and other authorities already on here but really it is quit plain to me from the text.

 

From the above, I can see you really don't understand do you?

 

As you are not asking but 'telling'.... I will have to leave you to your reliance here Dodge.

 

I too have posted enough time what the LAW says..... there is nothing wrong with the LAW.......it is clear..... you are welcome to continue to avoid the difference between powers of owners of Registered estates and those powers of a owner of an unregistered estate.

 

The person to whom this thread applies understands the LAW and my interpretation of it to his benefit. That's what matters really ; )

 

Apple

[applecart]

Linking the comments of the bodies mentioned, to your interpretations is absurd as ben has shown.

 

As for my attitude, I don't know what you mean, I am a pragmatist I say as I see nothing more.

 

You speak of 'practical logical approaches' - we are talking Property LAW here Dodge, not pints of beer.....best apply that pragmatist approach to your next glass of beer.....

 

Ben with respect has not got a clue......whilst I appreciate his posts - he is misguided..... had we relied on Ben's logic.....(with respect to him - as always) we would have got no where.

 

We did not and do not expect the Chamber to deal with the application on logic or common practices...we expect the Chamber to apply the LAW as it stands.....we are focused to ensure that they do..... if they do not... then we will appeal and appeal until they do.......

 

Apple

[Peterbard]

From the above, I can see you really don't understand do you?

 

As you are not asking but 'telling'.... I will have to leave you to your reliance here Dodge.

 

I too have posted enough time what the LAW says..... there is nothing wrong with the LAW.......it is clear..... you are welcome to continue to avoid the difference between powers of owners of Registered estates and those powers of a owner of an unregistered estate.

 

The person to whom this thread applies understands the LAW and my interpretation of it to his benefit. That's what matters really ; )

 

Apple

 

Again you say someone is wrong despite them stating something which has already been supported by lots of authority, do you want me to print it up again?

and again you demonstrate how you ignore a fact which does not fit your ideas, how can anyone describe this behavior as as anything other than illusionarry or fanciful, if I were you I would consider it a complement.

[applecart]

i am not saying anyone is stupid nor do I infer it, I do think you have a problem in the way you assimilate facts, if that is what you are asking. You seem to start off with a conception and the try and interpret everything you read to support it if it doesn't fit you ignore it, this is not the way to acquire knowledge.

 

LOL.....right- ok Dodge.....I'll remember that. ; )

 

Apple

[fletch70]

We did not and do not expect the Chamber to deal with the application on logic or common practices...we expect the Chamber to apply the LAW as it stands.....we are focused to ensure that they do..... if they do not... then we will appeal and appeal until they do.......

 

Apple

 

That is a rather worrying quote. "we will appeal and appeal until they do"

Up until now you have been talking about it being IsItMe?'s friend and nothing to do with you apart from that you wrote the submission. Now you are shouting that you will fight them on the beaches etc. Dare I ask where the funding is coming from, you, is it me, is it me's friend or another interested party. I do not expect an answer to that as you will rightly say it is non of my business but isn't it about time for the sake of clarity that you declare your interest?

Edited February 14, 2014 by citizenB
restored quote box

[applecart]

Again you say someone is wrong despite them stating something which has already been supported by lots of authority, do you want me to print it up again?

and again you demonstrate how you ignore a fact which does not fit your ideas, how can anyone describe this behavior as as anything other than illusionarry or fanciful, if I were you I would consider it a complement.

 

Like I say.... you don't understand.... it is not my place to 'teach' you ....I can only quote what the law says...

 

I can only apologise that the LAW is not something you subscribe to Dodge.....

 

Apple

[applecart]

That is a rather worrying quote. "we will appeal and appeal until they do"

Up until now you have been talking about it being IsItMe?'s friend and nothing to do with you apart from that you wrote the submission. Now you are shouting that you will fight them on the beaches etc. Dare I ask where the funding is coming from, you, is it me, is it me's friend or another interested party. I do not expect an answer to that as you will rightly say it is non of my business but isn't it about time for the sake of clarity that you declare your interest?

 

Read Is It Me's posts... you will see he has no intent to give up......that what I mean when I speak of appeal and appeal until .....

 

Apple

[sequenci]

Read Is It Me's posts... you will see he has no intent to give up......that what I mean when I speak of appeal and appeal until .....

 

Apple

 

I just hope they get leave to appeal should a decision not go their way.

[IS IT ME?]

Read Is It Me's posts... you will see he has no intent to give up......that what I mean when I speak of appeal and appeal until .....

 

Apple

 

If they think I or any one else here will give up then they are MAD

They know they are WORNG and they are more than happy to lie in court, look back over the last couple of case NI. One is the best lol

[Peterbard]

I just hope they get leave to appeal should a decision not go their way.

 

I cant see it, unless there is some argument that is not being shown on here.

[sequenci]

Lol

[bigphil61]

That is a rather worrying quote. "we will appeal and appeal until they do"

Up until now you have been talking about it being IsItMe?'s friend and nothing to do with you apart from that you wrote the submission. Now you are shouting that you will fight them on the beaches etc. Dare I ask where the funding is coming from, you, is it me, is it me's friend or another interested party. I do not expect an answer to that as you will rightly say it is non of my business but isn't it about time for the sake of clarity that you declare your interest?

 

Hi Fletch70, I really hope Apple does not mind me answering on there behalf! IsItMe has asked for Apples 'Interest' and Apple has on many occasions stated that there interest is in ensuring 'Borrowers' are aware of their rights regarding deeds, you will find that back on the first few pages of this thread, so what's your interest in this? Oh and before you ask, I'm a interested borrower too...BP

[Peterbard]

Like I say.... you don't understand.... it is not my place to 'teach' you ....I can only quote what the law says...

 

I can only apologise that the LAW is not something you subscribe to Dodge.....

 

Apple

 

If you quoted what the law said we would have no problem with you, what you quote is what you think it says, which is usually not the same thing

[caro]

Having read the last couple of pages of posts I can't see anything that hasn't been said before that is of any help to anyone. The case(s) is/are with the tribunal and at the moment it's up to the chamber to decide. Personal differences of opinion are fine but unless it helps anyone can people please keep it civil. If posters don't find that possible it may be necessary to close the thread temporarily.

[Peterbard]

I found this quite instructive also

 

http://www.practicalconveyancing.co.uk/content/view/11667/1125/

 

Charge and mortgages

 

What constitutes an equitable charge? Print

 

 

Background:

 

S.2 Law of Property (Miscellaneous Provisions) Act 1989 ("LP(MP)A")

 

S.2 LP(MP)A sets out the requirements for the creation of contracts for the sale or other disposition of an interest in land. Broadly speaking, in order to be valid and enforceable, they must be in writing, contain all the terms the parties have agreed in one document (or, where contracts are exchanged, in each document) or by reference to other documents and be signed by or on behalf of all the parties to the contract.

 

Equitable charges

 

An equitable charge is created when property is expressly or constructively made liable, or specially appropriated to the discharge of a debt without there being any intention to transfer ownership of the property. In the event of non-payment of the debt, the creditor’s right of realisation is by judicial process i.e. by the appointment of a receiver or an order for sale.

 

S.53 Law of Property Act 1925

 

An equitable charge may be in writing (s.53(1)© Law of Property Act 1925) ("LPA") but is usually created by deed. Section 53(1) LPA requires a disposition of an equitable interest or trust subsisting at the time of the disposition to be in writing signed by the person making the disposition or by his agent or by will. An equitable charge can be created by express intention and terms.

 

Equitable mortgages

 

By contrast, an equitable mortgage of a legal estate arises where there is an agreement to create a legal mortgage or where there is an intention to create security but the formalities for the creation of a legal mortgage have not been complied with (for example it has not been created by deed or a charge in registered land has not been registered). An equitable mortgage is a contract that operates as a security and is enforceable under the equitable jurisdiction of the court. A proprietary interest in the debtor’s property is conferred, or undertaken in a binding manner to be conferred, by the debtor on the creditor.

 

Distinction between equitable mortgages and equitable Charges

 

There is a fundamental difference in the nature of an equitable charge and an equitable mortgage. The remedies available to the equitable mortgagee are more extensive than those available to the equitable chargee; in particular, an equitable chargee does not have the remedy of foreclosure. Older cases blurred the distinction between the two, but recent cases (for example, Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584) have tended to reinforce their differences. That case said that an equitable mortgage is created when the legal owner of the property constituting the security enters into some instrument or does some act which, though insufficient to confer legal title in the property upon a mortgagee, nevertheless demonstrates a binding intention to create a security in favour of the mortgagee. By contrast, an equitable charge which is not an equitable mortgage is created when property is appropriated to the discharge of a debt and confers on the chargee a right of realisation by judicial process (see above).

 

The conceptual difference between a charge and a mortgage is that, with a charge, although the land is appropriated as security for a debt, there is no conveyance to the lender. However, since 1925, it has not been possible to create a legal mortgage by means of a conveyance. Before the introduction of the Land Registration Act 2002 (the "LRA 2002"), a legal mortgage could be created by a demise (or sub-demise in the case of leasehold land) for a term of years, subject to a provision for cesser on redemption, or by a charge expressed to be by way of legal mortgage. Since the implementation of the LRA 2002 on 13th October, 2003, it has only been possible to create a legal mortgage using the second method. Unlike in the case of equitable mortgages and charges, the terms "mortgage" and "charge" in relation to legal mortgages of land have largely become interchangeable.

 

The case of Kinane v Mackie-Conteh [2004] EWHC 998 (Ch) has considered the relationship between s.53 LPA and s.2 LP(MP)A. Was the creation of an equitable charge a disposition which complied with s.53 LPA enforceable notwithstanding that it fell foul of s.2 LP(MP)A? The case concerned an equitable charge, not an equitable mortgage.

 

Facts:

 

Mr Kinane lent money to Mr Mackie-Conteh for a trading venture. Mr Kinane alleged that Mr Mackie-Conteh entered into an agreement whereby he agreed to provide security for the loan by way of a legal charge over his home. The facts surrounding this alleged agreement were in dispute, but it was accepted that the agreement did not comply with s.2 LP(MP)A. Mr Kinane tried to enforce his security to recover the debt. He claimed that the agreement created an equitable charge over the property which was enforceable because it complied with s.53 (1)© LPA. As the equitable charge conferred no ownership or interest in kind but merely gave him certain rights over the house as security for the loan, it was enforceable. Mr Mackie-Conteh claimed that the agreement did not comply with s.53(1)©; s.53(l)© presupposed there to be an existing equitable interest in place capable of being disposed of, which there was not in this case.

 

Decision:

 

The court held that the document was sufficient to create an equitable charge and was enforceable because it complied with s.53 LPA. As Fisher and Lightwood, the text book, says "An equitable charge on land or an interest in land must be in writing signed by the chargor or his agent. An instrument which creates an equitable charge and contains an agreement to create a legal mortgage, but fails to comply with the formalities for an equitable mortgage on land, will still create a valid equitable charge."

 

The court referred to the previous case of Murray v Guinness [1998]. In that case, the chargor executed a memorandum, not under seal, charging land with the repayment of a loan and undertaking to execute a legal mortgage in future. It was held that in so far as the document purported to create an equitable charge, it was valid; for the purposes of s.53(1)© LPA, the disposition was signed by the chargor and did not need to be signed by the chargee. However, in relation to that part of the agreement where the defendant agreed to enter into a legal mortgage, the agreement was a contractual obligation and accordingly should have been signed by both parties to be valid under s.2 LP(MP)A. The invalidity with regards to s.2 LP(MP)A did not strike down the whole document which was effective to create the equitable charge but not to impose the future obligation to create the legal mortgage. Furthermore, in that case, the document in question was creating an equitable charge which did not pre-exist. In Kinane, the court rejected the chargor’s claim that, for s.53 LPA to apply, there must be a pre-existing equitable interest for there to be a disposal protected by the LPA.

 

The court said that the definition of "Disposition" in s.205(1)(ii) LPA includes a conveyance and "conveyance" includes a mortgage or charge. Section 53 LPA relates to the requirements for the disposition of equitable interests and a disposition itself (rather than a contract for the disposition of an interest in land) does not need to comply with s.2. Accordingly, the agreement constituted an equitable charge, rather than an agreement to create an equitable charge, and needed to comply with s.53 LPA, not s.2 LP(MP)A. This part of the agreement was severable from the part which contained the obligation to create a legal mortgage. This obligation was void because it fell foul of s.2 LP(MP)A. Accordingly, no equitable mortgage had come into being.

 

It was clear that Mr Mackie-Conteh had consented to the charge on his property in favour of Mr Kinane to secure the loan and therefore the document was sufficient to create an equitable charge which was enforceable because it complied with s.53(1)© LPA.

 

Comment:

 

From these cases, it appears that where a person signs an agreement with the intention of granting a charge over a property in future as security for a loan, the document may be construed as an equitable charge. If it is in writing and signed, it will be enforceable even though it would not be if treated as an agreement to grant a charge because of s.2 LP(MP)A.

 

As mentioned above, one of the ways an equitable mortgage can arise is where there is an agreement to create a legal mortgage. Such an agreement must comply with s.2 LP(MP)A. Before the LP(MP)A came into force (on 27th September, 1989), an equitable mortgage could be created where the debtor merely deposited the title deeds with the lender. Sometimes, a memorandum was signed recording the deposit and the terms agreed between the lender and borrower. Since the LP(MP)A came into force, it has not been possible to create an equitable mortgage by mere deposit. Deposit of title deeds is part performance of an agreement to create a legal mortgage and so the agreement must comply with s.2 LP(MP)A. In other words there must be some formal contract in writing which complies with s.2 in addition to the deposit of title deeds.

 

The case of De Serville v Argee Ltd [2001] also considered the interaction between s.2 LP(MP)A and s.53 LPA. In that case, a chargor deposited title deeds with a chargee. There was an exchange of letters but these were not sufficient to comply with s.2 LP(MP)A. Accordingly, there was no valid agreement to create a legal mortgage. However, the court said that the existence of one or more documents which govern the position between the parties (e.g. the letter in this case), could constitute an immediately effective disposition of property which complied with s.53(i)LPA, as opposed to an agreement to create security. The letters might be sufficient to create the charge, and not the act of deposit of title deeds itself. There was no need for the document to use the word "charge"; any form of words, which was apt to create an immediate security, would suffice. © Allen & Overy

 

Three you Apple the first one I came to going back through the thread, I have highlighted the relevant part fr you, although reading it all would do no harm

[Peterbard]

Having read the last couple of pages of posts I can't see anything that hasn't been said before that is of any help to anyone. The case(s) is/are with the tribunal and at the moment it's up to the chamber to decide. Personal differences of opinion are fine but unless it helps anyone can people please keep it civil. If posters don't find that possible it may be necessary to close the thread temporarily.

 

I think closing this thread would be an excellent idea, till after the case anyway. Not that what I think makes any difference in this of course.

[IS IT ME?]

Close the thread ??? Where have I heard that before?? Lol

Am I STILL on hold and having my posts blocked, as I think other people should be able to see that the site team have done their best to stop me from posting all because I questioned if the posts from Andrew1 were correct and how it is that some posters get away with it

Let's see if this one gets up!

[IS IT ME?]

Can you tell me dodgeball which court and judge made the ruling you qutoe?

What does it say under LP 23 please answer ALL the sec: therein, namely 3!

And by the way the chamber have confirmed the word OWNER is the borrower he who owns the house!

[applecart]

I just hope they get leave to appeal should a decision not go their way.

 

Yes, so do I...but I cannot see that being necessary at this stage......even if the permission is not granted you can appeal to the upper tribunal directly.

 

Apple

[applecart]

If they think I or any one else here will give up then they are MAD

They know they are WORNG and they are more than happy to lie in court, look back over the last couple of case NI. One is the best lol

 

Yes, we may refer to it as 'lie'.... they call it 'common practice.....'

 

Apple

[applecart]

I cant see it, unless there is some argument that is not being shown on here.

 

There is an argument that is not on the thread. I did tell you about it. You must have missed my post mentioning it Dodge?

 

Apple

[Peterbard]

There is an argument that is not on the thread. I did tell you about it. You must have missed my post mentioning it Dodge?

 

Apple

 

Yes think I asked you what it was, did you reply and I missed it?

[applecart]

Yes think I asked you what it was, did you reply and I missed it?

 

No, I only alerted you to the fact of its existence ......I don't think it is appropriate to post it up just yet though....

 

There are too many watching the thread. This is a live application..it is not everything that we do or has to be done that is posted on the CaG....i think its the fairest way to show respect for the OP's friend and retain some semblance of privacy.

 

Apple

[sequenci]

Close the thread ??? Where have I heard that before?? Lol

Am I STILL on hold and having my posts blocked, as I think other people should be able to see that the site team have done their best to stop me from posting all because I questioned if the posts from Andrew1 were correct and how it is that some posters get away with it

Let's see if this one gets up!

 

It is necessary to review your posts prior to authorising them. Once we're happy that you can abide by the site rules we will reiew your moderation. For the record, it's not me that does that.

 

I'm not keen on having the thread closed.

[Peterbard]

It is necessary to review your posts prior to authorising them. Once we're happy that you can abide by the site rules we will reiew your moderation. For the record, it's not me that does that.

 

I'm not keen on having the thread closed.

 

Mind if there is a secret defense in the offing, that we are not allowed to see, and all the other avenues have bee destroyed, sorry I mean discussed, there seems like little point in continually going over old ground