Repossession questioned by deeds not being signed

[URAM2]

Hi Apple, I am willing to help out as much as I can. I hear all the arguements regarding Deeds but how is one able to remove NRAM form the Land registry? Regards

[applecart]

Hi UNRAM2

 

Thanks for coming to the forum : )

 

I’m pleased your here...what you have done is brought to the fore a need for consideration of all those Borrowers whose Deeds were entered into before the RRO 2005 came into force.

 

A Deed signed before the coming into force of the RRO signed by the ‘grantor’(Borrower)...is ‘delivered’ by him under section 1 (3)(b) lpmpa 1989. (unamended version)

 

This does not mean that you cannot challenge the deed....you can still put an application into the Property Chamber.... to get it set aside...

 

It’s like this....although the RRO did not come into force until September 2005....it does not mean that deeds signed by borrowers before that date are presumed to be validly executed by the lender....the presumption of ‘delivery’ on sight of the borrowers signature...applies to ‘delivery’ on the borrowers part...that delivery does not extend to the type of ‘delivery’ that satisfies the lenders duty to execute and deliver also....

 

It remains and has always been the case that the deed is a speciality contract...for its validity....it must be signed by both the Borrower and executed by the Lender....

 

The point to emphasise for such Borrowers remains the same....that the Deed is supposed to meet the statutory requirements of LPA section 52...NOT section 53 (1) ©.....

 

Section 1 (3)(b) lpmpa for the borrower ... and

Section 74 (1) & (5) lpa 1925 for the lender

 

In relation to land... where there is only the Borrowers signature...the disposition is ‘equitable’...no legal estate was party to the disposition at all.

 

Again, because section 51 & 58 LRA 2002 says that the registered charge is conclusive....the deed evinces an ‘equitable’ charge...and operates at law in equity only pursuant to section 1 (7) LPA 1925.

 

This thread asserts that whether the deed was entered into before the coming into force of the RRO or not....An equitable chargee has no right to possession.

 

Apple

[applecart]

Hi UNRAM2

 

 

I found this with regard to non-compliance with an order of the court:

 

http://www.justice.gov.uk/pre-trash-archive/civ-proc-rules-old/_old/pd_part40b#IDAEUC2

 

I only looked at it briefly...but it may assist you...

 

Apple

[UNRAM]

UNRAM_2

 

Will you have the opportunity to elaborate the details of what constitutes "evidence" that has been required by your defence to the judge in his next hearing? You may need to ring the court to find out...

 

If so, should you present a new submission at the hearing or is it better to only notify the judge you intend to make a Property Chamber application to have the deed set aside and commence a renegotiation? This will at least raise the judges curiosity and we can re-review if/when she needs more information.

 

I personally feel that any possible intention to engage in future renegotiation of payments should not be discussed in court and raised only after the court hearing if applicable. If NRAM aren't happy with terms of your new arrangement but fail to offer a reasonable counter-offer they can always return to court... along with the factual evidence of their entitlements...

Edited July 28, 2013 by UNRAM

[applecart]

Hi Unram2

 

Taking on board UNRAM's comments.....The Order of the court advised the date by which NRAM was to comply with it. They did do, albeit late...what they have sent you is a Deed with just your signature on....I’m not to worried that it is witnessed by the Broker...What is of concern is the fact that the Lender has not signed it.

 

My thoughts lead to getting a letter into the Judge before the hearing due on the 5th August....along the following lines...

 

Dear Judge xxxx

 

RE: Claim No: xxxxxx Between [YOU] v {Lender]

 

I write to advise that on the [enter date you received the deed], [Lender] have partially complied with the order dated [enter date of order].

 

[Lender] have sent me a copy of the Deed that is said to have created a legal disposition. There has been no compliance with the order in regard to any other documentation as stipulated.

 

Notably, the deed which is a specialty contract; is signed by [enter your name and wife’s name] as borrowers and is attested by [enter brokers name], who was the Broker that arranged the actual mortgage, despite this; there is no evidence that [enter lender name] has executed the deed in compliance with the LPA 1925 section 74 (1) & (5) and 74A (1) (a)(b) & (2). Exhibit A attached.

 

In light of these findings, we are led to understand that the Deed sent to us, is all [lenders name] intends to rely on for the claim in a right to legal possession of [enter address of property].

 

We therefore humbly request that the issues in this case be limited to the validity of the deed in respect of section 52 (1) of the LPA 1925 at the hearing on the 5th August 2013.

 

We confirm that a copy of this letter has been sent to [enter lenders name].

 

Yours Sincerely

 

xxxxxxx

 

Exhibit A - will be a copy of the Deed - attach it to the letter, send a copy to the court and the lender both recorded delivery and keep a copy of the receipt.

 

I think that if you send the letter in these terms, then you are making it clear that it is the DEED that is the only issue...it runs to the root of any alleged entitlement to possession of your home.

 

GET the Letter or a letter along the lines above off today......giving the court and the lender as much notice of your intent as possible.

 

Familiarise yourself with the reason why the deed is void....understand that there is NO defence...but understand why this is the case...understand that section 2 has nothing to do with the Deed...etc etc...

 

Hope this helps for now..

 

Apple

[applecart]

Hi Is It Me

 

Whilst you wait for a response from the Property Chamber, I thought I'd just flag up LRA 2002 s.23 for you to peruse:

 

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.

 

If you look at what we were saying about 'mortgages by demise'...it is also apt to bare in mind what this says about 'charges by way of legal mortgage'...

 

You will find, that they alongside there being no power for your friend to charge the estate by demise or sub-demise - there is also no power to charge his or her estate by way of "legal sub-mortgage"..

 

Then Look at s23 (3) (c ) and you will find that a 'legal sub-mortgage' is a 'charge by way of legal mortgage'...

 

Then look at your friends deed again.....am I right in thinking you said it expressly states 'charge by way of legal mortgage'?

 

Ummmmmmmmmmm???????.... : )

 

Keep this in mind, whilst you wait for the Property Chamber to come back to you or when you next attend court....

 

Apple

[applecart]

It may not at first appear obvious....but

 

The issue of course is.... that if my memory serves me well...all the deeds posted on these threads expressly say that the Borrowers estate is 'charged by way of legal mortgage'...and this statement appears to be 'approved' by HMLR even today..

 

The CH1 forms also include a similar statement....

 

The Question begs...how is it that HMLR and Lenders alike are continuing this practice in relation to mortgages entered into after 28th February 2002 (to be exact)....surely, this may have been ok for mortgages before that date.....under the LRA 1925 (Land Registration Act 1925) but not now....not since section 23????

 

Clearly, this adds to the whole invalidity of the entire transaction...notwithstanding all that we have already established....but this does not stop one thinking, how on earth has this been allowed to go on for so long without notice???? Is there complicity? It just beggars belief .............

 

It was in 1991 that the Law Commission first spotted that some lenders were meddling in the stock market with residential mortgages...yes, there is the 2005 order and other amendments to legislation to protect consumers.....but, if nobody tells consumers that it is there for their protection....or how to interpret what it actually means....is it any wonder that these 'in your face' legislative protections have continued to go un-noticed for sooooo many years???

 

Apple

[IS IT ME?]

Hi Apple,

Just what I was looking into and what you state is correct once again.

It does beggar belief that all the authorities have watched what was going on and have because I fully believe that when this does go pear spared it will come down worst than the banking c'''k up and look what happened there.

I also believe that if and only if it is all tried up and no way out legally then that's the only way to win.

so with your help that's the way to go.

[applecart]

Hi Is It Me

 

I almost knew you would have looked into it already...no spots on you hey? : )

 

Your friend and others can only rely on what the Law actually says...it's the best way forward...and...yes; Thankfully on true interpretation of section 23, it cannot be denied that a 'charge by way of legal mortgage'....so long as it is expressed in words on the deed...it is clearly defined by statute as a 'sub-mortgage'... your friend had no power to charge the estate so expressly stated....it is a 'legal impossibility'...only made operative at Law due to being registered by HMLR.

 

I considered what would happen if....there was a chance that the application was dealt with by amending the stated terms of the deed....

 

Would the Property Chamber look to 'rectify' the Deed by simply removing those words to give it the legal effect...??

.....and if they do......., how will they then overcome the fact that the Lender has not executed the deed when they were legally obliged to do so?...

 

I haven't found any statute as yet that counters this legal impossibility, and as yet, I cannot see how it can be that HMLR would make such a legal blunder under the nose of what was it's Adjudicator and now will no doubt be put under the nose of the Property Chamber...like I say, the mind simply boggles...

 

Are LiP's at fault? Are the Court's at fault?...who's to say, but certainly it needs to be flagged up in much the same way as a mortgage by demise or sub-demise has been........

 

There will be more un-ravelling to do...and more information that is yet to come to the fore I'm sure....

 

It's always something 'simple'...something that is right under your nose, that is the un-doing of any [problem]...so obvious that you can't see it.....this is what happened with Log Book Loans...and I think the un-doing of the banks and the PPI issues....this is looking as though it will go the same way.... so far.....without more...

 

Apple

[IS IT ME?]

Hi Apple,

And that's the problem at this time WHAT does the property chamber do? it can't just remove the wording then that makes it void

Also the lender has not executed the deed so how do they deal with that?

The courts can only deal with what is put before them, so if Like my friend they know nothing about this until now then they have no grounds to changlne the lenders.

I think yes it is the simple things which are their undoing

[applecart]

Hi Is It Me,

 

On the contrary, there are instances where wording can be 'rectified' by order of the court or in these case by the Property Chamber; if it will mean that the 'intent' of the parties can be made clear and legal...

 

But, like I say...they cannot fill the 'blank'....the blank in these cases will be to do with the lenders execution....they are left to interpret the 'intention'...as based on statute...especially in regard to land transactions....statute clearly says...if the deed creates a disposition that is either a 'mortgage by demise' or 'sub-demise' in relation to the Borrowers estate...then that illegal and if the registered charge is effected by 'sub-mortgage'....then that is illegal too....

 

Now... if HMLR has gone ahead and charged the borrowers estate with any of these type of 'registrable disposition'....it should be shown on the title..???

 

More digging to do.... : )

 

Apple

[applecart]

aaah yes...got it....that 'restriction' is what they get the Borrower to agree to when the Borrower signs the Deed...ummmmmm???

 

Apple

[Winged Piglet]

Hi Is It Me,

 

On the contrary, there are instances where wording can be 'rectified' by order of the court or in these case by the Property Chamber; if it will mean that the 'intent' of the parties can be made clear and legal...

 

But, like I say...they cannot fill the 'blank'....the blank in these cases will be to do with the lenders execution....they are left to interpret the 'intention'...as based on statute...especially in regard to land transactions....statute clearly says...if the deed creates a disposition that is either a 'mortgage by demise' or 'sub-demise' in relation to the Borrowers estate...then that illegal and if the registered charge is effected by 'sub-mortgage'....then that is illegal too....

 

Now... if HMLR has gone ahead and charged the borrowers estate with any of these type of 'registrable disposition'....it should be shown on the title..???

 

More digging to do.... : )

 

Apple

 

Hi Apple,

 

Reading this thread with much interest! Just a thought as I had outlined my own situation on Ben's thread, how can a court order a rectification of a Deed? If there's a mistake and the Borrower does not agree to the rectification, why would the court force them to alter it? Surely it's a case of tough luck to the Lender? If it's not 'legal' because of the lender's mistake why/how would a court have the power to change it? They can't do this with any other legal document. Also isn't it the case that the Deed of Variation has to be granted just by the Borrower if it's been registered with LR?

 

Many thanks

 

WP

[applecart]

Hi Apple,

 

Reading this thread with much interest! Just a thought as I had outlined my own situation on Ben's thread, how can a court order a rectification of a Deed? If there's a mistake and the Borrower does not agree to the rectification, why would the court force them to alter it? Surely it's a case of tough luck to the Lender? If it's not 'legal' because of the lender's mistake why/how would a court have the power to change it? They can't do this with any other legal document. Also isn't it the case that the Deed of Variation has to be granted just by the Borrower if it's been registered with LR?

 

Many thanks

 

WP

Hi Ya WP

 

Yes, please keep posted...I' pleased you are working with us here...welcome.... for I think it will be here that we intend to put the whole argument together....

 

When I was speaking of either the Court or the Property Chamber ‘rectifying’ the deed in the above scenario; I was speaking of a deed that is ‘valid’...and...’words’ stated within the deed that cause the document to have an all together different meaning....

 

‘a charge by way of legal mortgage’ was said by the Law Commission to have the same effect as a mortgage by demise, sub-demise, sub-mortgage....so, the LRA 02..(that’s ‘statute’ to the likes of you and me) at section 23...removed the power from the ‘owner’ of the estate...that’s ‘you and me’ to create such a disposition....the deed cannot be said to be a borrowers ‘deed’...non est facto pleas spring to mind.....backed up of course with the fact that there is no further legal presumption of delivery on sight of a borrowers signature alone...so..yes...it will be ‘tough’ on the lender...no more than what the legislator intended of course... : )

 

Not sure how much you know about mortgage securitisation...but, it is the only way that the lender can entertain securitisation of your mortgage/estate/property...by entering into possession..’before the ink is dry’....i.e translated to: encumber the legal estate with a restriction...use the words ‘by way of legal mortgage’...to create a mortgage by demise’ and sub mortgage.....to take the ‘proverbial ......’ Hence the ‘restriction’ in the proprietorship register on your title....

 

But back to your question...let’s say the deed has been signed by both lender and borrower...but ...you argue the point that the words ‘charge by way of legal mortgage’ were repealed since 28th Feb 2002 due to the LRA 2002....but....apart from that....everything else is ok...i.e no ‘restriction’ on your proprietor estate (encumbering your legal estate and your legal rights to the estate)....no sign of a mortgage by demise or sub demise...and you only ‘recognise’ sight of a ‘sub-mortgage’....due to the words used....A judge would find it easy to remove those words...for without them...the deed would do as was intended by you and statute...to make the disposition no more than a ‘security’ for the debt...likewise we know that words like ‘with full title guarantee’ all mean ‘demise’...for it entails the ‘whole’ estate...both legal and equitable.....(see the LP(MP) Act 1994 for confirmation of this fact).

 

It is only the ‘words’ that are ‘illegal’...I have read more than enough cases to cause me to believe that if that is all that was wrong....as borrowers...we run the risk of getting all the way to court..or the property chamber.....only to find...the Judge says...”we can sort this... I order that the words ‘charge by way of legal mortgage’ and ‘full title guarantee’ are removed thus altered to have no legal effect....” by doing this...if all else is ok...the rectification application is dealt with by way of ‘alteration’....instead of one where we are asserting in this thread...should be set aside....

 

So, in brief...it was a ‘what if’ rather than a ‘factual’ or ‘expected’ outcome.....given the many other issues coming to the fore with the Deeds relevant to this thread....

 

But I do hear you....your ahead of me on a ‘deed of variation’...you will need to assist my knowledge on that WP?...I haven’t even considered that scenario....to be honest, my thoughts are....given the facts submitted in this thread.... a deed of variation...would not be party to the solution at all....can’t vary the fact that the lender has not executed the deed... : )

 

But, I will give what you have contributed much more thought..this is just my initial thoughts...

 

Apple

[Winged Piglet]

Hi Apple,

 

Re Deeds of Variation/Rectification,*my only knowledge comes from the*Land Registry Practice Guide 68.

 

I may (very possible) have not understood this at all. But my Deed as you know contains wrong ref to out of date t &c's, notwithstanding not signed by lender mind! So the *pretender Lender suggested (very thoughtfully aw ;-) to get a Deed Of Variation drawn up for me to sign/grant and I told them to get pedalling on their bike! They can't do it apparently so as I refused that's how it's left.

 

So I assumed, that if a mistake was found in a Deed already registered just like the wrong legal wording you have identified, that it would need to be set aside as it could not be altered or replaced without the Borrowers consent. *A nice kind Borrower might say, aw poor Mr Lender with a faulty, unlawful Deed securing your loan, here let me make it all better and I'll sign just for you a new one or make a Deed of Variation to protect you. I'm afraid that I am obviously not a nice, kind Borrower ))

 

So could a court really demand a Borrower sign a Deed of Variation to amend or rectify the dodgy Deed? Surely that's.......I hate to say it, but I will anyway, against my human rights or at the very least, prejudicial to me as the innocent party, after all the Lender supplied the faulty Deed and they should have operated diligence and were negligent to their own detriment. Also I've already signed original Deed, it strikes me more than odd that a court could? alter a legal doc without my consent after the event.

 

Probably being completely naive here but if that was the case then, a court could simply order the Lender to sign the Deed that he hadn't signed to rectify it instead of setting it aside?

 

I may just add that I know of UNRAM and his situation (not UNRAM2) and directed him to this thread.

 

From PG 68

 

2 Introduction

 

Sometimes the parties to a deed effecting a disposition that requires registration under the LRA 2002 (such as a transfer, lease or legal charge), and which has already been completed by execution and delivery, decide that its effect needs to be changed. This may be because they discover a clerical or other mistake in the deed that needs to be corrected. Or they may decide later that what was considered to be a correctly drawn deed does not sufficiently achieve their original intentions. Again, the parties to such a deed or their successors may decide that, though it correctly reflected the parties' intentions at the time, circumstances have changed so as to bring about a need to vary the effect of the deed.

 

In the equivalent unregistered conveyancing situations, the parties would expect to prepare what they would term a deed of rectification, in relation to a mistake in an earlier deed, or a deed of variation, in relation to a correctly prepared deed the effect of which needs later to be amended. However, when dealing with registered land, the parties need, where appropriate, to take account of the constraints imposed on the form of dispositions by the LRA 2002 and the LRR 2003. In particular, there are many situations where a deed of rectification or variation in a form appropriate to unregistered conveyancing would be inappropriate in the context of registered titles, so that serious difficulties can arise where an attempt is made to use such forms. It is the purpose of this guide to explain how parties seeking to amend the effect of a deed intended to achieve a registrable disposition should proceed.

 

5 Where the original deed has been registered

 

5.1 General principles

 

Deeds that effect registrable dispositions, such as transfers, leases and legal charges of registered titles, must be completed by registration if the relevant legal estate or interest is to become vested in the person in whose favour the deed takes effect. Until application is made to register the disposition and the application is completed so that the relevant entries are made in the register, the deed confers at best an equitable interest in the land. Once the register has been changed to give legal effect to a registrable disposition and reflect the information contained in the deed, it records the existence of the relevant registered estates, charges and legal interests that subsist and the identity of the persons in whom, as registered proprietors, the estates and charges are vested. It follows that, if a further disposition of the land in a registered title is needed, this needs to be achieved by means of a further registrable deed. This principle applies as much to the case where a further disposition is needed to correct a mistake in an original deed that has already been registered as it does to further independent transactions.

 

In addition, s.25, LRA 2002 provides that:

 

“A registrable disposition of a registered estate or charge only has effect if it complies with such requirements as to form and content as rules may provide.”

 

For the purpose of this guide, the importance of this provision is that, if a registrable disposition is required in order to achieve the correction or amendment of an original deed that has already been registered, then that further registrable disposition must comply with any applicable requirements of the LRR 2003 relating to the form and content of the disposition.*

 

5.6.3 Correct land charged but other terms require correction or amendment

 

In relation to a legal charge that has already been registered, the parties may decide that the terms of the charge need to be corrected or amended. For example, a clerical error may have led to the charge referring to an out-of-date version of an institutional lender's mortgage conditions, so that the terms of the charge should be changed so as to refer to the up-to-date conditions. In such cases the parties may do either of the following.

 

Replace the existing registered charge with a fresh legal charge that charges the land comprised in the original deed and incorporates the revised terms that the parties wish to see incorporated in the legal charge. In that case the lender will need to apply in the normal way to register the fresh deed as a legal charge against the titles comprised in it and, at the same time, apply to cancel the registration of the original deed as a legal charge using Land Registry form DS1 under cover of an application in form DS2 or AP1.

 

Prepare and execute a deed of variation by which they agree to amend the original deed in terms that give effect to the intended correction or amendment. There is no prescribed form for this, so the deed of variation may take any form that the parties consider appropriate to achieve their intentions.

 

In the latter case the application to register the deed of variation must be made under cover of an application form AP1. We will retain the original deed, unless the deed is in a form previously approved by us and the lender has requested that original deeds should be returned or, if the deed has not been previously approved, where a certified copy of the deed has been supplied.

 

5.6.5 Execution of deed of variation of charge

 

Although the borrower must execute the deed of variation, there is no requirement for the lender to do the same. We will accept that the lender will be bound by the terms of the variation if the deed is either lodged by the lender or a practitioner acting on behalf of the lender.

 

Regards

 

WP

[applecart]

Hi WP

 

Apologies for the delay in getting back to you....

 

Thanks for posting up PG 68; however it has no bearing on what this thread is all about....the reason being; that a deed has to be duly ‘executed and delivered’ before PG68 would come into the equation.

 

You cannot vary or alter a document/deed that does not exist.

 

If you read PG68 again, you will note that HMLR expressly state that the guide applies to deeds that have already been ‘completed by execution and delivery’...

 

In this thread, none of the deeds have been “completed” by ‘execution and delivery’.

 

So, where your lender requested that you sign a deed of variation...the response can only be,....No....., for there is no deed in evidence that effected a disposition of the kind intended by law especially when the purported disposition occurs after 28th February 2002. (LRA 2002)

 

HLMR’s public status suggests that they are the only guide that borrowers should rely on when it comes to disputes to do with land, boundaries and the title register. It is becoming clear that this not the case.

 

In this thread, we are dealing specifically with the Deed itself.......but HLMR's PG 68 appears to ignore the fact that a deed that has not been ‘completed by execution and delivery’ is void. They ignore the fact that any deed that is not executed by a lender is void. They ignore the fact that since the LRA 2002 came into force...mortgages by demise, sub-demise or sub-mortgage are a breach of the law. They ignore the fact that the RRO makes it impossible to rely on a borrower’s signature alone – I do note that their guides will ‘touch’ on these statutory borrower protections, but, fail to accept any responsibility to ensure that they are enforced.....as a consequence, instead they appear to favor the lenders unscrupulous purposes over and above that of the stated LAW.

 

Funny......despite all of this.... PG 68 says very little about a deed that must be executed and delivered ‘before’ variation can or should even be considered by them....ummmmmm???

 

Apple

[applecart]

see here, for the type of ambiguous guided comments - taken from PG68:

 

'In addition, s.25, LRA 2002 provides that:

 

“A registrable disposition of a registered estate or charge only has effect if it complies with such requirements as to form and content as rules may provide.”

 

For the purpose of this guide, the importance of this provision is that, if a registrable disposition is required in order to achieve the correction or amendment of an original deed that has already been registered, then that further registrable disposition must comply with any applicable requirements of the LRR 2003 relating to the form and content of the disposition.*'

 

I would love to ask them....if this is so...then where pray tell is the 'registrable disposition' when the deed is void?.....Surely you are referring to ...the 'completed executed and delivered' deed???

 

I truly think it is well overdue (amendments made to the law...not implemented or enforced by HLMR or their guides since 2002) ....HLMR need to reconsider their 'guides' and bring them into line with what the Law actually says.....even if it is 'commercially inconvenient'...for they too appear to be far too reliant on a Borrowers ignorance of the Law and are at fault for the ambiguity that currently exists between what is either a valid deed or a void deed...to the extent that there practices are encouraging lenders to 'get away' with circumventing the law.....imo...

 

Apple

[IS IT ME?]

That is until you came long apple lol.

[applecart]

Hi Is It Me

 

yes, I suppose someone needed to start 'bucking the trend'.......

 

By the way..... any news as yet?

 

Apple

[applecart]

Just to further give an insight into the huge problem that is our guardian of all things property .........HMLR;...... just have a quick look at this report by the the Complaints Reviewer in its annual report for the year 2011/2012...

 

 

http://www.icrev.org.uk/pdf/LR-ICR-2011-12.pdf

 

Apple

[applecart]

oooh look PG 39 was updated this month of August 2013.....see here for the newly amended guide: http://www.landregistry.gov.uk/professional/guides/practice-guide-39

 

Apple

[IS IT ME?]

ermmm,

looks like some ones been reading this thread!

No news as yet, not even from the lenders solicitors with their story sorry defense of the matter.

The more I look into this and think about it I can not see how they will be able to deal with it.But we will see.

By the way hope you are well and I can see you are in good form lol

[applecart]

Ha, ha, ha...I doubt it...but yes, that would be a good thing if they did...that way we could look forward to them updating PG 8 to make more reference to the actual amendments caused by the RRO 2005....to reduce the number of mistakenly registered charges identified in this thread.... which are likely to increase the amount of indemnity payments they have to make....

 

Ummm, nothing as yet...interesting....well, put it this way, I'm more than confident that whatever they come up with, there will be room for redress... they are pushing the time frame a wee bit ain't they? ah well...like you say, we will see....

 

'on form'...me?....hopefully : )

 

Apple

[applecart]

Thought I'd share detail of an example of what a valid 'charging clause' should ideally look like when you take out a mortgage with a lender who is legitimately looking to secure the property for the debt....rather than a lender who is looking to enter into possession of your legal estate in breach of LRA section 23....

 

See here:

 

http://www.landirect.ie/eng/Legal_Professional_Customers/Legal_Practices_Procedures/Approval_of_Deeds_of_Charge_Mortgage/Solicitors/Coakley_Moloney_Solicitors_January_2011.pdf

 

You'll note, there is no mention of 'charge by way of legal mortgage' or mention of 'full title guarantee'

 

The Law Commission Report (Law Com. No 204) Transfer of Land - Land Mortgages - printed 13.11.1991 (para 5.2) - recommended that there should be a standard form of charge (not to be confused with the formalities of a Deed of course) to say:

 

a] the date of the mortgage

 

b] the names and address of the parties to the mortgage

 

c] the description of the mortgage property (including title No, if title registered at HMLR) and the nature of the interest mortgaged

 

d] a charging clause, in very general terms (for example: 'the mortgagor [as beneficial owner] mortgages the property as security for the payment and discharge of all money and liabilities due for the time being from the mortgagor under the terms of this mortgage')

 

e] any further information necessary to comply with registration requirements, such as whether the mortgage is a continuing security and secured further advances; and

 

f (if the standard form comprises the mortgage itself, rather than the front page of it) details of collateral documents intended to be incorporated into the mortgage

 

Despite the above ...... HMLR accept purportedly 'valid charging clauses' that say such like as:....'The Borrower with full title guarantee charges [the [property] by way of legal mortgage the Property and the interest of the Borrower with the payment of the Loan...together with all interes and other charges and expenses whether incurred now or in the future'....

 

see section 205 (vxi) of the LPA 1925 to see exactly what the definition of a 'legal mortgage' is said to be.... you will find it is a 'mortgage by demise, sub-demise....ummmm...funny that....thought they were repealed....looks like Lenders have managed to sneak them back in to the 'law' via HLMR as an 'approved' form of charge....sanctioned by HMLR.....ooooooppps!!!

 

Apple

[applecart]

In the same working paper of The Law Commission Report (Law Com. No 204) Transfer of Land - Land Mortgages - printed 13.11.1991 they say at para 3.2

 

"The guiding principle we have adopted in defining the nature of the new mortgage is that the only function of the mortgaged property is to provide security for the performance of the mortgagor's payment obligations"

 

It follows from this that the nature and extent of the mortgagees' interest ought to be dictated by the need to preserve the value of the security and where necessary to enforce it"

 

It goes on.....

 

"....The first is that the essential nature of the mortgage ought to be preserved....if the parties want to gaive a lender rights in the borrowers property which are significantly greater than or different from those necessary to make the property available as security, then a mortgage is not an appropriate mechanism for them to use....

 

... The second is that the parties should not be permitted to contract out of provisions designed to protect those mortgagors who are especially vunerable...."

 

and on and on....

 

Apple