Repossession questioned by deeds not being signed

[bhall]

Put in the bear garden thread - I'll see if I can find time to respond to you there ; )

 

Apple

 

 

Lol, that must be related to rule 1 of the Apple rule book of this thread

[applecart]

Ben see post #5087 for an update.

 

Apple

[bhall]

Bear garden stuff Ben.

 

Start a new thread ; )

 

Apple

 

It is actually related to this thread, sorry if you don't like it

[bhall]

Here we go Ben....here's where we are at ; )

 

Apple

 

"We" ?

 

I don't think you speak for everyone. That is a tad presumptuous even for you.

 

Those of us that you don't speak for, can be wherever we want to be thank you

[applecart]

Lol, that must be related to rule 1 of the Apple rule book of this thread

 

No - its CaG rules - different topics = different thread.

 

Apple

[applecart]

"We" ?

 

I don't think you speak for everyone. That is a tad presumptuous even for you.

 

Those of us that you don't speak for, can be wherever we want to be thank you

 

That's true - but certain of your posts should be in the bear garden. They are 'contentious' to say the least

 

Apple

[bhall]

No - its CaG rules - different topics = different thread.

 

Apple

 

Lol nice try, that post was about responses from the property chamber about applications made about void deeds - can it be anymore related to the topic of this thread ?

[bhall]

That's true - but certain of your posts should be in the bear garden. They are 'contentious' to say the least

 

Apple

 

And yours are not ?

[Peterbard]

Sorry Dodgeball

 

Please explain where the error is.....I'm happy to amend where necessary

 

Apple

 

I don't think any of us have enough time left to watch you amend all your errors apple, my advice to people is just to treat anything you say as being wrong unless confirmed by someone who understands what they are talking about.

 

Won't go far wrong then

[bhall]

Going back to the thread as requested

 

Originally Posted by Halsbury's Laws of England/mortgage (VOLUME 77 (2010) 5TH EDITION)/1. DEFINITION AND CLASSIFICATION/(1) IN GENERAL/104. Legal mortgages.

 

104. Legal mortgages.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

[bhall]

Halsbury's laws of England states

 

A mortgage of registered land can be made only by a charge by deed expressed to be by way of legal mortgage or by charging the estate with the payment of money, and cannot be made by way of mortgage by demise

 

please note "registered land"

[bhall]

Originally Posted by Halsbury's Laws of England/mortgage (VOLUME 77 (2010) 5TH EDITION)/1. DEFINITION AND CLASSIFICATION/(2) LEGAL AND EQUITABLE MORTGAGES/(i) Legal Mortgages/117. Legal mortgages.

 

(2) LEGAL AND EQUITABLE MORTGAGES

(i) Legal Mortgages

117. Legal mortgages.

 

 

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

 

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

 

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

 

 

 

 

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

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

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

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

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

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

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

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

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

10 See PARA 231.

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

[bhall]

Please note

 

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.

[bhall]

Turning to deeds

 

Originally Posted by Halsbury's Laws of England/DEEDS AND OTHER INSTRUMENTS (VOLUME 13 (2007 REISSUE))/1. DEEDS/(4) EFFECT OF A DEED/57. General effect.

 

(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.

[bhall]

Please note

 

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 deed

[applecart]

And yours are not ?

 

Ben, you are clearly looking to re-light issues that have nothing to do with this thread.....you started yesterday.....I should have ignored you.... I am not interested in you taking your Mrs shopping to be honest............I am also not interested as to whether you're Caro, Fletch, Dodgball or anyone else ....and I am not interested in who you work for....all bear garden stuff....

 

I am interested in the Deed. The Mortgage. The Decision to the Application made.

 

I have not been 'contentious' as far as I can tell...more defensive....... I will always defend myself Ben - you know that much about me by now ; )

 

Apple

[bhall]

In terms of the charge

 

Originally Posted by 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 mortgagemust 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).

[bhall]

Please note

 

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.

 

 

Originally Posted by IS IT ME?

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

[bhall]

As for where "we" are at... Personally I am where what the law actually states and not where you interpret what it means .

[applecart]

I think this is becoming the bear Garden thread again - I will come back later when it resumes to Is It Me's thread : )

 

 

Apple

[bhall]

Ben, you are clearly looking to re-light issues that have nothing to do with this thread.....you started yesterday.....I should have ignored you.... I am not interested in you taking your Mrs shopping to be honest............I am also not interested as to whether you're Caro, Fletch, Dodgball or anyone else ....and I am not interested in who you work for....all bear garden stuff....

 

I am interested in the Deed. The Mortgage. The Decision to the Application made.

 

I have not been 'contentious' as far as I can tell...more defensive....... I will always defend myself Ben - you know that much about me by now ; )

 

Apple

 

Apple it is not for you decide what is and what is not posted and discussed in this thread.

 

If the site team feel that any posts are off topic, they can and will remove them.

 

Why don't you leave those decisions to the site team

[bhall]

I think this is becoming the bear Garden thread again - I will come back later when it resumes to Is It Me's thread : )

 

 

Apple

 

No you stay, I will log off and let you post your fanciful ideas uninterrupted ;-)

[Peterbard]

Thanks for that Ben , nice to see all we have been saying confirmed in such a concise way, also some other interesting things in there .

[bigphil61]

No I am saying that the above court ruling and statute is.

 

Hi Dodgeball, Why have the Property Chamber not struck out the 9 remaining (as per Ben's FOI) applications, if they have no merit? BP

[Peterbard]

Hi Dodgeball, Why have the Property Chamber not struck out the 9 remaining (as per Ben's FOI) applications, if they have no merit? BP

 

I would guess that there are other issues we are not privy to which take additional consideration, just guessing. Or of course it could just be a procedural delay