Repossession questioned by deeds not being signed

[Peterbard]

You will note that section 2 includes the word 'or' - we are reliably informed by Ben that the word 'or' has significance, effect and meaning.

 

With respect - the 'or' in section 2 distinguishes 'contracts for sale' from 'disposition of interests' - would you not agree?

 

Apple

 

The point is Apple that what ever way you want to interpret section two, it does not apply to a deed, so what does it matter, the requirements for deeds are contained in section 1 as the judge said.

[Peterbard]

In brief - 'garguillo' says if the 'it' is not attached at the time of signing the deed - then the deed is void.

 

When copies of the deed are retrieved from HMLR - the 'it' is not attached. Borrowers are finding they only retrieve the deed without the 'it' attached'

 

The 'it' is the 'terms and conditions'...section 2 appears to say - if the 'terms and conditions' are not attached - there can be no finding that the 'it' meets s.2 - we already know the deed is not signed by the Lender.......

 

S.2 provides that if the 'it' is not signed by 'each party' - then another document should be......the other document and the only document in evidence is the deed ..... that is not signed by 'each party'.....

 

.

 

Apple

 

Isn't the issue in the case mentioned the Borrowers signature, and also wasn't it to do with a deed were as section 2 is to do with contract as explained earlier, you are mixing oranges and apples, pardon the pun.

 

Perhaps if you were to copy the section of the actual judgement which you think applies to this assertion.

[applecart]

The point is Apple that what ever way you want to interpret section two, it does not apply to a deed, so what does it matter, the requirements for deeds are contained in section 1 as the judge said.

 

I have not said that s.2 applies to the deed - I have said it applies to the 'terms and conditions'.

 

Are you struggling to see the point made Dodgeball?

 

Apple

[Peterbard]

No Dodgeball, I have no such problem differentiating between the 'contract for sale' and the 'disposition of interests'

 

The Contract for sale - will be between the buyer and seller of a property......

 

The deed is the 'registrable disposition' - aka - the charge, aka - the deed.....aka the deed that creates the 'disposition of interests' in property... or let's say the 'security' for the loan.

 

Section 1 looks only at the borrowers duty to sign the deed - it is section 46 Companies Act 2006 that looks to the Lenders duty to execute the deed - if he does not do so - there is no presumption of delivery to be in evidence to say he has complied with LPMPA 1989 s2 as amended applie

 

Now.... back to the 'terms and conditions' requirement under section 2 please....to say 'it' must be signed by both the Lender and the Borrower......and the authority in 'garguillo'

 

Section 2 (3) speaks of the 'The document incorporating the terms'.....

 

I'd be grateful for you to move your point forward from here please....

 

Apple

 

Why would I move the argument forward, you have not answered the existing argument. How can you apply section 2 criteria(ie the creditors signature ) to a section one matter(ie the deed).

 

YoU have shown nothing to support any such contention.

[applecart]

Isn't the issue in the case mentioned the Borrowers signature, and also wasn't it to do with a deed were as section 2 is to do with contract as explained earlier, you are mixing oranges and apples, pardon the pun.

 

Perhaps if you were to copy the section of the actual judgement which you think applies to this assertion.

 

Your forgetting the word 'or' - Ben explained the significance of the word 'or' for us all.

 

section 2 is to do with 'contracts for sale' OR 'dispositions of interests'.... it then looks to the 'terms and conditions' .....of either document....

 

How can you say or look to make out that there is an issue with 'oranges and apples' - when it is clearly intended to make the very distinction you concern yourself with here...... it is 'oranges' and 'apples' to use your pun.

 

Para 70: Mr Ollech submitted that, carried to an extreme, this line of reasoning would produce a situation where a document would be invalid if the signature pages were signed in another part of the room or possibly even merely detached from the remainder of the deed. The question must always be whether the signature page and other relevant pages formed part of the same physical document. That will be a question of fact in each case. In this case, the relevant pages were clearly separate from the remainder of the Lease: they were signed separately and returned separately (and not by Mr Westwood) at some unspecified time after the other leases were executed (and after Mr Westwood had stated, initially, that he did not intend to execute the Lease) and were accordingly not in any sense part of the ‘it’ referred to in the statute.

 

Para 71. Section 52(1) provides that all conveyances of land are void for the purpose of creating a legal estate in land unless made by deed. Accordingly, in my judgment, the Lease is void as it was not made by deed.

 

 

 

Apple

[Peterbard]

I have not said that s.2 applies to the deed - I have said it applies to the 'terms and conditions'.

 

Are you struggling to see the point made Dodgeball?

 

Apple

 

Yes I am I must admit, is there something in section 2 that says its requirement for terms and conditions apply to section 1.

[Peterbard]

Your forgetting the word 'or' - Ben explained the significance of the word 'or' for us all.

 

section 2 is to do with 'contracts for sale' OR 'dispositions of interests'

 

How can you say or look to make out that there is an issue with 'oranges and apples' - when it is clearly intended to make the very distinction you concern yourself with here...... it is 'oranges' and 'apples' to use your pun.

 

Para 70: Mr Ollech submitted that, carried to an extreme, this line of reasoning would produce a situation where a document would be invalid if the signature pages were signed in another part of the room or possibly even merely detached from the remainder of the deed. The question must always be whether the signature page and other relevant pages formed part of the same physical document. That will be a question of fact in each case. In this case, the relevant pages were clearly separate from the remainder of the Lease: they were signed separately and returned separately (and not by Mr Westwood) at some unspecified time after the other leases were executed (and after Mr Westwood had stated, initially, that he did not intend to execute the Lease) and were accordingly not in any sense part of the ‘it’ referred to in the statute.

 

Para 71. Section 52(1) provides that all conveyances of land are void for the purpose of creating a legal estate in land unless made by deed. Accordingly, in my judgment, the Lease is void as it was not made by deed.

 

 

 

Apple

 

Yes Apple but this was the borrowers signature not the lenders.

[applecart]

The Deed is a separate issue to the 'terms and conditions and a finding that no document is signed by 'each' party - In the event that the Deed itself is not executed - Here is what the Tribunal should have in store for them:

 

76. Although the point is not free from difficulty, I have come to the view that the Applicants’ submissions on this point are correct. The attestation of a witness was held to be only secondary. The signature on the deed is not secondary: it is fundamental to the validity of the deed. The lack of a (valid) signature cannot be cured by estoppel. If the signature is not on the complete instrument it is not a signature on the deed. It is merely a signature on one or more pages which do not, at the moment of signing, form part of the deed. The fact that the deed (the ‘it’) is not one document at the moment of signing leaves open, of course, the possibility of fraud or mistake. If it were possible to argue that the doctrine of estoppel can cure the absence of a valid signature on the deed itself the statute could, in all circumstances, be circumvented. Formality has its well established place in the law, even though (as with the operation of the limitation period) the outcome may seem arbitrary, and, in the case of deeds, possibly commercially inconvenient.

 

That's the kind of 'authority' that Borrowers rely on - and it relates to not only the 'terms and conditions' - but also the 'deed' too ; )

 

Apple

[applecart]

Yes I am I must admit, is there something in section 2 that says its requirement for terms and conditions apply to section 1.

 

Section 2 does not apply to the Deed.

 

Section 1 applies to the Borrowers duty to sign the Deed.

 

Section 2 applies to the Borrowers and Lenders duty to sign the 'Terms and Conditions' - (signed by "each" party) - the terms and conditions are party to the 'OR' in relation to 'disposition of interest' under s.2 as party to the Deed...(the deed creates the 'disposition') ..the said 'terms and conditions' must be attached to the deed at the time of signing it.

 

Garguillo sets the authority - it was set by an adjudicator - who remains insitute at the Tribunal - Borrowers are relying on it to show that there is no signed 'terms and conditions' and also the fact that the deed itself has not been executed by the Lender....... essentially - there is nothing upon which the Tribunal can rely for a finding in the Lenders favor. The Lender has not executed the Deed, nor the terms and conditions......

 

Apple

[applecart]

Yes Apple but this was the borrowers signature not the lenders.

 

estoppal does not assist the Lender - a finding that the Borrower has signed but the Lender has not will not assist the Lender:

 

 

Estoppel

 

72. During the hearing, I raised the question of whether estoppel might come into play, referring to Shah v Shah [2001] 4 All ER 138. It is on this point that I received further written submissions from Counsel.

 

73. In Shah v Shah the third and fourth defendants entered into a deed to pay £1.5m to the claimant. One of the defences raised was that the document was not valid as a deed because the witness to their signatures was not present at the moment of signing. The Court of Appeal held that in the circumstances of that case estoppel could be used to avoid the formal invalidity of the deed.

 

74. Pill LJ stated, at [21] that the general statement of the law was as stated by Beldam J in Yaxley v Gotts [2000] 1 All ER 711 at 734 was correct: ‘The general principle that a party cannot rely on an estoppel in the face of a statute depends on the nature of the enactment, the purpose of the provision and the social policy behind it’. The claimant accepted in that case that an estoppel could not defeat the absence of signature, as distinct from a defect in or absence of its attestation. The signature is fundamental to the validity of a deed.

 

75. Pill LJ then stated this: at [30]: ‘I have, however, come to the conclusion that there was no statutory intention to exclude the operation of an estoppel in all circumstances or in circumstances such as the present. The perceived need for formality in the case of a deed requires a signature and a document cannot be a deed in the absence of a signature. I can detect no social policy which requires a person attesting the signature to be present when the document is signed, The attestation is at one stage removed from the imperative out of which the need for formality arises. It is not fundamental to the public interest, which is in the requirement for a signature. Failure to comply with the additional formality of attestation should not in itself prevent a party into whose possession an apparently valid deed has come from alleging that the signatory should not be permitted to rely on the absence of attestation in his presence… the fact that the requirements are partly for the protection of the signatory makes it less likely that Parliament intended that the need for them could in all circumstances be used to defeat the claim of another party.’

 

76. Although the point is not free from difficulty, I have come to the view that the Applicants’ submissions on this point are correct. The attestation of a witness was held to be only secondary. The signature on the deed is not secondary: it is fundamental to the validity of the deed. The lack of a (valid) signature cannot be cured by estoppel. If the signature is not on the complete instrument it is not a signature on the deed. It is merely a signature on one or more pages which do not, at the moment of signing, form part of the deed. The fact that the deed (the ‘it’) is not one document at the moment of signing leaves open, of course, the possibility of fraud or mistake. If it were possible to argue that the doctrine of estoppel can cure the absence of a valid signature on the deed itself the statute could, in all circumstances, be circumvented. Formality has its well established place in the law, even though (as with the operation of the limitation period) the outcome may seem arbitrary, and, in the case of deeds, possibly commercially inconvenient.

 

Apple

[bhall]

You will note that section 2 includes the word 'or' - we are reliably informed by Ben that the word 'or' has significance, effect and meaning.

 

With respect - the 'or' in section 2 distinguishes 'contracts for sale' from 'disposition of interests' - would you not agree?

 

Apple

 

Or it could be read -

 

http://www.legislation.gov.uk/ukpga/1989/34/section/2

 

2 Contracts for sale etc. of land to be made by signed writing.

 

(1)A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.

 

A contract for the sale or a contract for a other disposition of an interest in land

 

After all, must never over look that s.2 is about contracts and nothing to do with deeds

 

Helden v Strathmore Ltd [2011] EWCA Civ 542 (11 May 2011)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2011/542.html

 

27. Mr Helden's case on section 2 is hopeless. It proceeds on a fundamental misunderstanding of the reach and purpose of that section, a misunderstanding, it is fair to say, which appears to be not uncommon. 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. So 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 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.

 

contracts (keyword) for the creation or sale of legal estates or interest in land

 

28. As is spelt out in its opening words, section 2 is concerned with "a contract for the sale or other disposition of an interest in land". Its purpose is also clear from the fact that it replaced section 40 of the Law of Property Act 1925, and from the contents (and indeed the title) of the interesting and full Law Commission report which initiated it – Transfer of Land: Formalities for Contracts For Sale etc. of Land (Law Com. No. 364). The section was directed to tightening up the formalities required for contracts for the creation or transfer of interests or estates in land, and it was not concerned with documents which actually create or transfer legal estates or interests in land. This conclusion is consistent with the view expressed by the Chancellor of the High Court in McLaughlin v Duffill [2008] EWCA Civ 1627, [2010] Ch 1, paras 20-21, approving the reasoning of HH Judge Hicks QC in Target Holdings Ltd v Priestly 79 P & CR 305, para 51.

[applecart]

Or it could be read -

 

http://www.legislation.gov.uk/ukpga/1989/34/section/2

 

2 Contracts for sale etc. of land to be made by signed writing.

 

(1)A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.

 

A contract for the sale or a contract for a other disposition of an interest in land

 

After all, must never over look that s.2 is about contracts and nothing to do with deeds

 

Helden v Strathmore Ltd [2011] EWCA Civ 542 (11 May 2011)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2011/542.html

 

27. Mr Helden's case on section 2 is hopeless. It proceeds on a fundamental misunderstanding of the reach and purpose of that section, a misunderstanding, it is fair to say, which appears to be not uncommon. 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. So 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 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.

 

contracts (keyword) for the creation or sale of legal estates or interest in land

 

28. As is spelt out in its opening words, section 2 is concerned with "a contract for the sale or other disposition of an interest in land". Its purpose is also clear from the fact that it replaced section 40 of the Law of Property Act 1925, and from the contents (and indeed the title) of the interesting and full Law Commission report which initiated it – Transfer of Land: Formalities for Contracts For Sale etc. of Land (Law Com. No. 364). The section was directed to tightening up the formalities required for contracts for the creation or transfer of interests or estates in land, and it was not concerned with documents which actually create or transfer legal estates or interests in land. This conclusion is consistent with the view expressed by the Chancellor of the High Court in McLaughlin v Duffill [2008] EWCA Civ 1627, [2010] Ch 1, paras 20-21, approving the reasoning of HH Judge Hicks QC in Target Holdings Ltd v Priestly 79 P & CR 305, para 51.

 

Morning Ben ; )

 

Hoped you would pop in.

 

I see the very point you are making - so we have 'Helden' and we have 'Garguillo' in sight

 

The distinction of course is that the Borrowers in the case of 'Helden' looked to make out that S.2 applied to the Deed - they did not assert that S.2 had anything to do with the Terms and Conditions -The Terms and Conditions are the 'IT' referred to in Garguillo...Not the Deed. I think it important to make that distinction.

 

Do you think 'Helden' would have had the same outcome if the Borrowers had correctly referred s.2 to the Terms and Conditions?

 

Apple

[bhall]

In brief - 'garguillo' says if the 'it' is not attached at the time of signing the deed - then the deed is void.

 

When copies of the deed are retrieved from HMLR - the 'it' is not attached. Borrowers are finding they only retrieve the deed without the 'it' attached'

 

The 'it' is the 'terms and conditions'...section 2 appears to say - if the 'terms and conditions' are not attached - there can be no finding that the 'it' meets s.2 - we already know the deed is not signed by the Lender.......

 

S.2 provides that if the 'it' is not signed by 'each party' - then another document should be......the other document and the only document in evidence is the deed ..... that is not signed by 'each party'.....

 

 

 

Apple

 

Let's completely ignore that the Property Chamber has already told Is It Me? that he was wrong to rely upon Garguilo as an applicable authority for a moment.

 

(1) Andrew Francis Garguilo (2) Jennifer Margaret Garguilo v (1) Jon Howard Gershinson (2) Louisa Brooks both acting as Joint Fixed Charge Receivers of Desmond Daniel Charles Moore in respect of Flat 4, Station Court, 140A High Street, Godalming (Deeds : Execution) [2012] EWLandRA 2011_0377 (06 January 2012)

 

http://www.bailii.org/ew/cases/EWLandRA/2012/2011_0377.html

 

 

68.Underhill J then went on to consider what he described as the additional factor that each of the three key documents was intended to be a deed. He set out the provisions of section 1(3) and said: ‘Mr Bird submitted, and I agree, that that language necessarily involves that the signature and attestation must form part of the same physical document (the ‘it’) referred to at (a) which constitutes the deed.’ [40]. He also stated: ‘ I accept that the flaws on which HMRC rely are essentially formal. But I see nothing wrong in applying a strict test of formality to the validity of the agreements with which we are concerned in this case. The entire raison d’etre is to create – and demonstrably to create – a series of formal legal relationships: if they do not do that, they do nothing.’

 

Please note -

 

" the signature and attestation must form part of the same physical document (the ‘it’) referred to at (a) which constitutes the deed.’

 

What is the "it" exactly ? (hint look up a couple of lines)

 

69. It is correct to say that in the Mercury case there were differences between the two versions of the documents. This is not the case here. There is only one version of the Lease. But it seems to me that section 1(3) clearly provides that the signature and attestation must form part of the physical instrument at the moment of signing. This requirement stands alone, regardless of whether there were earlier drafts (which may or may not have been materially different). The policy argument is that the signature should reflect the proper agreement: if the signature is obtained separately the maker cannot be sure of the terms of the deed and the risk of fraud or mistake remains.

 

Please note -

 

But it seems to me that section 1(3) clearly provides that the signature and attestation must form part of the physical instrument at the moment of signing.

 

This requirement stands alone, regardless of whether there were earlier drafts (which may or may not have been materially different).

 

Now lets look at a mortgage deed, we will use the accord deed as an example as accord relates to this thread.

 

In the now infamous (and often misinterpreted case of Garguilo) - it was said the "it" was in fact the actual deed

 

The signature and attestation must form part of the "it" (the deed) at the moment of signing - being subject to section 1 of the LP (MP) A 1989

 

Now to the accord mortgage deed

 

http://www.accordmortgages.com/documents/ACCL0002-Mortgage-Deed-E&W.pdf

 

Now we need to establish if the signature and attestation forms part of "it" (the deed) - when we look at the "it" we find

 

 

We find that signature and attestation does form part of "it"

 

In Garguilo (as posted above) it is said "The policy argument is that the signature should reflect the proper agreement: if the signature is obtained separately the maker cannot be sure of the terms of the deed and the risk of fraud or mistake remains."

 

In the case of the accord mortgage deed the maker (that would be the borrower) the signature is not obtained separately and the maker can be sure of the terms -

 

 

Hence why the Property Chamber has already said that reliance on Garguilo is misplaced.

[bhall]

Morning Ben ; )

 

Hoped you would pop in.

 

I see the very point you are making - so we have 'Helden' and we have 'Garguillo' in sight

 

The distinction of course is that the Borrowers in the case of 'Helden' looked to make out that S.2 applied to the Deed - they did not assert that S.2 had anything to do with the Terms and Conditions -The Terms and Conditions are the 'IT' referred to in Garguillo...Not the Deed. I think it important to make that distinction.

 

Do you think 'Helden' would have had the same outcome if the Borrowers had correctly referred s.2 to the Terms and Conditions?

 

Apple

 

It is good your glad, both times I popped in yesterday when you was here you logged off immediately, I was starting to take it personal lol

[bhall]

-The Terms and Conditions are the 'IT' referred to in Garguillo...Not the Deed. I think it important to make that distinction.

 

 

Now that is strange because as I have just posted -

 

 

"‘Mr Bird submitted, and I agree, that that language necessarily involves that the signature and attestation must form part of the same physical document (the ‘it’) referred to at (a) which constitutes the deed."

 

Going by the above the "it" constitutes the deed itself

 

On well, don't worry about it (no pun intended) - it is just something else for us to disagree about

 

 

From GARGUILO:

 

"63. Section 1(3) of the 1989 Act, so far as relevant, provides as follows:

 

‘An instrument is validly executed as a deed by an individual if, and only if,

 

(a) it is signed -

(i) by him in the presence of a witness who attests his signature’

 

64. The Applicant’s argument proceeds as follows. The ‘it’ in part (a) must refer back to the instrument in question. This means the entire document, and not merely the execution pages or any other page."

68...... "‘Mr Bird submitted, and I agree, that that language necessarily involves that the signature and attestation must form part of the same physical document (the ‘it’) referred to at (a) which constitutes the deed."................

 

The document (the instrument in question) being a deed

[bhall]

You have to remember in GARGUILO

 

"61. The submission on this point is that, even without forgery being demonstrated, the mere fact that the signatory pages of the Lease were, as I have found, executed separately and inserted into the Lease invalidates the instrument as a matter of law.

 

62. It is perhaps worth summarising the evidence on this. Mr Wright received only the executed pages (which must have included the plan) at some time after his meeting with Mr Westwood and Mr Moore. They were not given to him by Mr Westwood, but by an unknown person (probably Mr Moore or Linda Stevens). Mr Wright lodged these pages only with Mr Truelove on a different occasion from the handing over of the other executed leases. Mr Wright left Mr Truelove to ‘insert’ the executed pages into the two deeds Mr Truelove already held.

"

This is not the case with a mortgage deed (as shown by the accord mortgage deed), as the signature page is not separate from the deed and is not therefore, inserted at a later date. It is actually incorporated into the deed itself

 

Which explains why the Property Chamber said to Is It Me?

 

"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."

[applecart]

Let's completely ignore that the Property Chamber has already told Is It Me? that he was wrong to rely upon Garguilo as an applicable authority for a moment.

 

(1) Andrew Francis Garguilo (2) Jennifer Margaret Garguilo v (1) Jon Howard Gershinson (2) Louisa Brooks both acting as Joint Fixed Charge Receivers of Desmond Daniel Charles Moore in respect of Flat 4, Station Court, 140A High Street, Godalming (Deeds : Execution) [2012] EWLandRA 2011_0377 (06 January 2012)

 

http://www.bailii.org/ew/cases/EWLandRA/2012/2011_0377.html

 

 

68.Underhill J then went on to consider what he described as the additional factor that each of the three key documents was intended to be a deed. He set out the provisions of section 1(3) and said: ‘Mr Bird submitted, and I agree, that that language necessarily involves that the signature and attestation must form part of the same physical document (the ‘it’) referred to at (a) which constitutes the deed.’ [40]. He also stated: ‘ I accept that the flaws on which HMRC rely are essentially formal. But I see nothing wrong in applying a strict test of formality to the validity of the agreements with which we are concerned in this case. The entire raison d’etre is to create – and demonstrably to create – a series of formal legal relationships: if they do not do that, they do nothing.’

 

Please note -

 

" the signature and attestation must form part of the same physical document (the ‘it’) referred to at (a) which constitutes the deed.’

 

What is the "it" exactly ? (hint look up a couple of lines)

 

69. It is correct to say that in the Mercury case there were differences between the two versions of the documents. This is not the case here. There is only one version of the Lease. But it seems to me that section 1(3) clearly provides that the signature and attestation must form part of the physical instrument at the moment of signing. This requirement stands alone, regardless of whether there were earlier drafts (which may or may not have been materially different). The policy argument is that the signature should reflect the proper agreement: if the signature is obtained separately the maker cannot be sure of the terms of the deed and the risk of fraud or mistake remains.

 

Please note -

 

But it seems to me that section 1(3) clearly provides that the signature and attestation must form part of the physical instrument at the moment of signing.

 

This requirement stands alone, regardless of whether there were earlier drafts (which may or may not have been materially different).

 

Now lets look at a mortgage deed, we will use the accord deed as an example as accord relates to this thread.

 

In the now infamous (and often misinterpreted case of Garguilo) - it was said the "it" was in fact the actual deed

 

The signature and attestation must form part of the "it" (the deed) at the moment of signing - being subject to section 1 of the LP (MP) A 1989

 

Now to the accord mortgage deed

 

http://www.accordmortgages.com/documents/ACCL0002-Mortgage-Deed-E&W.pdf

 

Now we need to establish if the signature and attestation forms part of "it" (the deed) - when we look at the "it" we find

 

 

We find that signature and attestation does form part of "it"

 

In Garguilo (as posted above) it is said "The policy argument is that the signature should reflect the proper agreement: if the signature is obtained separately the maker cannot be sure of the terms of the deed and the risk of fraud or mistake remains."

 

In the case of the accord mortgage deed the maker (that would be the borrower) the signature is not obtained separately and the maker can be sure of the terms -

 

 

Hence why the Property Chamber has already said that reliance on Garguilo is misplaced.

 

I think it is important to let you know that we set out in further argument to the Tribunal that we did not rely on the initial application. I think it is also important to advise you that the Tribunal accepted that argument and its decision will now rely on the amended written submissions and further argument in support - Garguillo remained in play and was framed to apply to the amended submission and further argument. The Tribunal are now considering the application in light of 'garguillo' from that stand point. So, with respect; there is no need to make mention of the initial application or the reply that derived from it any longer to be fair and honest with you as we move forward.

 

I see your point here - you advise that the Deed is the 'it' and your advise that the signature page was considered as party to the 'it' and was all that DDJ McAllister could have been referring to for the decision - correct me if I have misunderstood your point here??

 

However, when I considered 'garguillo' - I did not find the same meaning of the 'it' as you. (I know you may think I am just looking to be contrary - please don't - it is a genuine observation).

 

Here is where the 'it' is formally determined in 'garguillo' as far as I can see:

 

62. It is perhaps worth summarising the evidence on this. Mr Wright received only the executed pages (which must have included the plan) at some time after his meeting with Mr Westwood and Mr Moore. They were not given to him by Mr Westwood, but by an unknown person (probably Mr Moore or Linda Stevens). Mr Wright lodged these pages only with Mr Truelove on a different occasion from the handing over of the other executed leases. Mr Wright left Mr Truelove to ‘insert’ the executed pages into the two deeds Mr Truelove already held.

 

63. Section 1(3) of the 1989 Act, so far as relevant, provides as follows:

 

‘An instrument is validly executed as a deed by an individual if, and only if,

 

(a) it is signed -

(i) by him in the presence of a witness who attests his signature’

 

64. The Applicant’s argument proceeds as follows. The ‘it’ in part (a) must refer back to the instrument in question. This means the entire document, and not merely the execution pages or any other page.

 

so, the distinct impression I take from the above is that a 'deed' incorporates not only the 'signature pages' - but also the 'terms and conditions' - and I also take it that when the 'signature pages' and the 'terms and conditions' form 1 document.... that is the form of deed that the LRA s25 refers to to say it has legal effect.

 

On that - do you stand by your belief (given the above taken from Garguillo) that it is enough to say that the Deed is a Deed when the terms and conditions are not attached to what is after all only the 'signature pages' of the Deed?

 

Apple

[bhall]

I think it is important to let you know that we set out in further argument to the Tribunal that we did not rely on the initial application. I think it is also important to advise you that the Tribunal accepted that argument and its decision will now rely on the amended written submissions and further argument in support - Garguillo remained in play and was framed to apply to the amended submission and further argument. The Tribunal are now considering the application in light of 'garguillo' from that stand point. So, with respect; there is no need to make mention of the initial application or the reply that derived from it any longer to be fair and honest with you as we move forward.

 

I see your point here - you advise that the Deed is the 'it' and your advise that the signature page was considered as party to the 'it' and was all that DDJ McAllister could have been referring to for the decision - correct me if I have misunderstood your point here??

 

However, when I considered 'garguillo' - I did not find the same meaning of the 'it' as you. (I know you may think I am just looking to be contrary - please don't - it is a genuine observation).

 

Here is where the 'it' is formally determined in 'garguillo' as far as I can see:

 

62. It is perhaps worth summarising the evidence on this. Mr Wright received only the executed pages (which must have included the plan) at some time after his meeting with Mr Westwood and Mr Moore. They were not given to him by Mr Westwood, but by an unknown person (probably Mr Moore or Linda Stevens). Mr Wright lodged these pages only with Mr Truelove on a different occasion from the handing over of the other executed leases. Mr Wright left Mr Truelove to ‘insert’ the executed pages into the two deeds Mr Truelove already held.

 

63. Section 1(3) of the 1989 Act, so far as relevant, provides as follows:

 

‘An instrument is validly executed as a deed by an individual if, and only if,

 

(a) it is signed -

(i) by him in the presence of a witness who attests his signature’

 

64. The Applicant’s argument proceeds as follows. The ‘it’ in part (a) must refer back to the instrument in question. This means the entire document, and not merely the execution pages or any other page.

 

62. It is perhaps worth summarising the evidence on this. Mr Wright received only the executed pages (which must have included the plan) at some time after his meeting with Mr Westwood and Mr Moore. They were not given to him by Mr Westwood, but by an unknown person (probably Mr Moore or Linda Stevens). Mr Wright lodged these pages only with Mr Truelove on a different occasion from the handing over of the other executed leases. Mr Wright left Mr Truelove to ‘insert’ the executed pages into the two deeds Mr Truelove already held.

 

63. Section 1(3) of the 1989 Act, so far as relevant, provides as follows:

 

‘An instrument is validly executed as a deed by an individual if, and only if,

 

(a) it is signed -

(i) by him in the presence of a witness who attests his signature’

 

64. The Applicant’s argument proceeds as follows. The ‘it’ in part (a) must refer back to the instrument in question. This means the entire document, and not merely the execution pages or any other page.

 

so, the distinct impression I take from the above is that a 'deed' incorporates not only the 'signature pages' - but also the 'terms and conditions' - and I also take it that when the 'signature pages' and the 'terms and conditions' form 1 document.... that is the form of deed that the LRA s25 refers to to say it has legal effect.

 

On that - do you stand by your belief (given the above taken from Garguillo) that it is enough to say that the Deed is a Deed when the terms and conditions are not attached to what is after all only the 'signature pages' of the Deed?

 

Apple

 

 

Apple please for one day, just read what it says

 

68.Underhill J then went on to consider what he described as the additional factor that each of the three key documents was intended to be a deed. He set out the provisions of section 1(3) and said: ‘Mr Bird submitted, and I agree, that that language necessarily involves that the signature and attestation must form part of the same physical document (the ‘it’) referred to at (a) which constitutes the deed.’ [40]. He also stated: ‘ I accept that the flaws on which HMRC rely are essentially formal. But I see nothing wrong in applying a strict test of formality to the validity of the agreements with which we are concerned in this case. The entire raison d’etre is to create – and demonstrably to create – a series of formal legal relationships: if they do not do that, they do nothing.’

 

Please note -

 

" the signature and attestation must form part of the same physical document (the ‘it’) referred to at (a) which constitutes the deed.’

 

and from your post

 

"refer back to the instrument in question. This means the entire document"

 

What does the case, you rely upon actually say the "it" is ? what is the instrument in question ? what is the entire document ?- the deed

[Peterbard]

All of this is because apple cannot seem to understand that section 1 of the act is applicable to deeds and section 2 is applicable to contracts for the disposition of interests in land. There is nothing anywhere that say that section 2 criteria should be applicable to deeds and the courts agree.

[bhall]

The "it" is the actual deed

 

"(the ‘it’) referred to at (a) which constitutes the deed" It says it very clearly

 

 

63. Section 1(3) of the 1989 Act, so far as relevant, provides as follows:

 

‘An instrument is validly executed as a deed by an individual if, and only if,

 

(a) it is signed -

 

The '"it" is signed' refers to the deed being signed

 

"(the ‘it’) referred to at (a) which constitutes the deed"

[applecart]

The "it" is the actual deed

 

"(the ‘it’) referred to at (a) which constitutes the deed" It says it very clearly

 

 

63. Section 1(3) of the 1989 Act, so far as relevant, provides as follows:

 

‘An instrument is validly executed as a deed by an individual if, and only if,

 

(a) it is signed -

 

The '"it" is signed' refers to the deed being signed

 

"(the ‘it’) referred to at (a) which constitutes the deed"

 

Yes, again I take your point here.

 

However, in accepting that the 'it' is the Deed.....do You accept that the deed must have attached the terms and conditions?

 

63. Section 1(3) of the 1989 Act, so far as relevant, provides as follows:

 

‘An instrument is validly executed as a deed by an individual if, and only if,

 

(a) it is signed -

(i) by him in the presence of a witness who attests his signature’

 

64. The Applicant’s argument proceeds as follows. The ‘it’ in part (a) must refer back to the instrument in question. This means the entire document, and not merely the execution pages or any other page.

 

It's important I think to be clear on this point.

 

You have said that the 'it' must include the signature and attestation but you make no mention of the terms and conditions for your assertion.

 

Are we to understand from that which you say that the terms and conditions do not or not intended to form part of the 'it'?

 

Apple

[bhall]

Yes, again I take your point here.

 

However, in accepting that the 'it' is the Deed.....do You accept that the deed must have attached the terms and conditions?

 

63. Section 1(3) of the 1989 Act, so far as relevant, provides as follows:

 

‘An instrument is validly executed as a deed by an individual if, and only if,

 

(a) it is signed -

(i) by him in the presence of a witness who attests his signature’

 

64. The Applicant’s argument proceeds as follows. The ‘it’ in part (a) must refer back to the instrument in question. This means the entire document, and not merely the execution pages or any other page.

 

It's important I think to be clear on this point.

 

You have said that the 'it' must include the signature and attestation but you make no mention of the terms and conditions for your assertion.

 

Are we to understand from that which you say that the terms and conditions do not or not intended to form part of the 'it'?

 

Apple

 

At last we have progress - finally the "it" is the deed - that has taken me nearly a year of hard work

 

I honestly didn't think this day would ever come, lucky I am sitting down, otherwise I would have collapsed in shock

 

There is a case that answers your question about t&c's, I will find it and post it for you (I need to find it first)

[applecart]

All of this is because apple cannot seem to understand that section 1 of the act is applicable to deeds and section 2 is applicable to contracts for the disposition of interests in land. There is nothing anywhere that say that section 2 criteria should be applicable to deeds and the courts agree.

 

With respect Dodgeball.

 

I more than understand that section 1 applies to the Borrowers liability to sign the deed.

 

We are looking at section 2 and the terms and conditions and the liability of 'each party' to sign the terms and conditions that are supposed to be attached to the "Deed".

 

With respect to you - Ben and I are discussing the issue - please allow us to do so. The issue will conclude in due course without the need for un-opportune erroneous comments being made that have no baring on that which Ben and I are discussing.

 

Apple

[applecart]

At last we have progress - finally the "it" is the deed - that has taken me nearly a year of hard work

 

Yes, I accept your point; as we move on.....

 

Safe in that knowledge that the 'it' is the Deed - the question begs - is the 'it' (the Deed) complete without the terms and conditions attached to it and signed by 'each' party?

 

Apple

[Peterbard]

With respect Dodgeball.

 

I more than understand that section 1 applies to the Borrowers liability to sign the deed.

 

We are looking at section 2 and the terms and conditions and the liability of 'each party' to sign the terms and conditions that are supposed to be attached to the "Deed".

 

With respect to you - Ben and I are discussing the issue - please allow us to do so. The issue will conclude in due course without the need for un-opportune erroneous comments being made that have no baring on that which Ben and I are discussing.

 

Apple

 

 

With equal respect to you. What is happening here is that you are yet again being indulged in some delusion retarding the regulation.

 

The terms and conditions referred to in section two refer to those relevant to the disposition of the interests or the charge in the property, not the transfer of ownership of the title as is the subject data of the deed.

 

That simple