Repossession questioned by deeds not being signed

[Crapstone]

Yes bhall it's a pretty long case that has gone on some years and makes for some interesting and surprising reading.

[bigphil61]

The amendment also refers to the owners powers of a registered estate - not owners powers of an unregistered estate - something else you can either accept as a friendly suggestion that you should think about, or you can simply dismiss it

 

http://www.legislation.gov.uk/ukpga/...-paragraph-2-8

 

SCHEDULE 11 Section 2

 

(8)In section 87, at the end there is inserted—

 

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

 

 

“On Report the Government and the Opposition moved amendments to clause 23 to deal with the question of how a legal charge could be defined when what it is said to be equivalent to can no longer be created. This problem arises because the bill will take away the power to create a mortgage by demise. Baroness Scotland explained the Government’s amendmenticon.

 

Clause 23(1)(a) states than an owner’s powers to deal with a registered estate do not extend to the creation of a mortgage by demise or sub-demise. As your Lordships will recall from Committee, that is a simplification of the existing law, introduced because those methods of creating mortgages are not used any more . I very much appreciate the welcome that the noble Baroness gave to that change.

 

Noble Lords opposite helpfully spotted that Section 87 of the Law of Property Act 1925 provides that a mortgage has the same protection, powers and remedies as a mortgagee by demise or sub-demise. The amendment should make the intended effect abundantly clear.

 

However, we respectfully suggest that it is necessary to retain the reference to the creation of mortgages by demise or sub-demise, as that will still be possible in relation to unregistered land. It is beyond the scope of the Bill to legislate in respect of such land.

 

Can it really be refuted that s.23(1)(a) being the powers of the registered proprietor of the registered estate - preventing them from making a disposition of a mortgage by demise or sub-demise - as a result of the amendment has not effect on s.87(1) of the LPA 1925 being where a legal mortgage of land is created by a charge by deed expressed to be by way of legal mortgage.

 

To a simpleton such as myself it would read to say

 

s.23(1) which prevents a registered proprietor of a registered estate from making a disposition of a mortgage by demise or sub-demise, does not have an affect on a registered proprietor of a registered estate from making a disposition where a legal mortgage of land is created by a charge by deed expressed to be by way of legal mortgage. - Afterall, s.23(1) only relates to the powers of the registered owner of the registered estate

 

 

Whilst you can still mortgage by demise or sub-demise a unregistered estate, you can only mortgage a registered estate by legal charge - as a result of s.23(1) of the LRA 2002 and because of the amendment by the LRA 2002 to s.87 of the LPA 1925, as detailed above

 

 

Hi Ben, Welcome back, thought you were taking a well earned rest, any how, just a quickie, any chance you could re-post the above link, Ta....BP

[bhall]

http://www.wragge.com/analysis_2775.asp . There is also a full seminar somewhere on the net debating the whole merit of the case in pdf form and some 56 pages long.

 

56 pages? I will save that read for another day.

 

Thank you Crapstone

[bhall]

Hi Ben, Welcome back, thought you were taking a well earned rest, any how, just a quickie, any chance you could re-post the above link, Ta....BP

 

 

Hello BP

 

Here you go

 

http://www.legislation.gov.uk/ukpga/2002/9/schedule/11

 

(8)In section 87, at the end there is inserted—

 

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

 

and a link to section 87 which includes the actual amendment

 

http://www.legislation.gov.uk/ukpga/Geo5/15-16/20/section/87

 

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

 

Personally and this is not said to persuade you one way or the other, I think the above should be read/considered in conjunction with the explanatory notes for s.23

 

http://www.legislation.gov.uk/ukpga/2002/9/notes/division/4/3/1/1

 

Section 23: Owner’s powers

 

55.This section states the unlimited powers of an owner. It makes one change to the current law. Under the existing law, there is a presumption that a registered charge takes effect as a charge by way of legal mortgage, unless there is clear provision to the contrary, or it is made or takes effect as a mortgage by demise or sub-demise. Mortgages by demise or sub-demise are now in practice obsolete, because of the advantages of a charge (that enables freeholds and leaseholds to be made the subject of a single charge rather than separate demises or sub-demises; the grant of a charge of a lease is not thought to amount to a breach of the common-form covenant against subletting without the landlord’s consent; and the form of legal charge is short and simple). Subsection (1)(a) therefore abolishes them, with prospective effect.

 

As it says, . Mortgages by demise or sub-demise are now in practice obsolete, because of the advantages of a charge - hence why in terms of registered land, they were abolished by s.23(1)(a) leaving the registered charge, as the amendment confirms that it is not affected by s.23(1)(a)

[bhall]

Random question do posts seem to change page for anyone else ?

 

Crapstones last post for me, was on the previous page, now it is on this page

 

Anyway that is enough from me for now

[Crapstone]

Random question do posts seem to change page for anyone else ?

 

Crapstones last post for me, was on the previous page, now it is on this page

 

Anyway that is enough from me for now

 

Yes mine seems to jump and change and I have to keep refreshing the pages.

[bhall]

Full background to the Bill and detailed explanations on the purpose and content of its clauses can be found in the joint Law Commission and HM Land Registry report, Land Registration for the Twenty-First Century:A Conveyancing Revolution (Law Com No. 271).

 

I must offer my apologies to the followers and readers of this thread. It has just occurred to me that I have not posted the following, from the above mentioned report.

 

 

THE POWER TO CREATE CHARGES AND THE POWERS OF THE CHARGEE

 

Legal charges

 

The creation of charges and the powers of the chargee

 

7.2 Under the present law, a registered proprietor can by deed create a legal mortgage or charge1 of registered land in any one of three ways

 

(1) he or she may in the usual way create a charge expressed to be by way of legal mortgage;2

 

(2) he or she may charge the registered land with the payment of money and this will take effect as a charge by way of legal mortgage, even though not expressed to do so;3 or

 

(3) he or she may create a mortgage by demise or sub-demise but must do so expressly: the presumption is in favour of a charge by way of legal mortgage.

 

These three propositions state the combined effect of sections 25(1) and 27 of the Land Registration Act 1925. The reason for (2) is historical. Charges over registered land were introduced by the Land Transfer Act 1875.4 They therefore pre-date by half a century the introduction of the charge expressed to be by way of legal mortgage in section 87 of the Law of Property Act 1925.5 Mortgages by demise or sub-demise ¾ (3) above ¾ are in practice now obsolete because of the advantages offered by a charge. The main advantages of a charge are that¾

 

(a) freeholds and leaseholds can be the subject of a single charge rather then separate demises or sub-demises;

 

(b) the grant of a charge over a lease is not thought to amount to a breach of the common-form covenant against subletting without the landlord’s consent (such consent would be required to a

mortgage by sub-demise); and

 

© the form of legal charge is short and simple.6

 

It should be noted that the mortgage by demise or sub-demise was as much a creation of the Law of Property Act 1925 as was the charge expressed to be by way of legal mortgage. The charge over registered land for the payment of money ¾ (2) above ¾ is in fact the form of permitted legal mortgage or charge that has the longest pedigree.7

 

This then leads onto my previous post

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?391318-Repossession-questioned-by-deeds-not-being-signed&p=4469874&viewfull=1#post4469874

 

"7.3 As we have explained in Part IV of this Report, the Bill implements a recommendation in the Consultative Document that it should not be possible to create mortgages by demise or sub-demise in relation to registered land. Under the Bill, a registered proprietor can create a legal mortgage in one of two ways

 

(1) by a charge expressed to be by way of legal mortgage; or

(2) by a charge to secure the payment of money.

 

Of course the above two mentioned ways that a registered proprietor of a registered estate can create a legal mortgage can be found in

 

http://www.legislation.gov.uk/ukpga/2002/9/section/23

 

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.

[bhall]

Yes mine seems to jump and change and I have to keep refreshing the pages.

 

Glad it is not just me then. Thanks

[bhall]

From the same report

 

The grant of a legal charge

 

4.29 The grant of a legal charge is a registrable disposition.100 To register the charge, the chargee or his or her successor in title must be entered in the register as its proprietor.101 By way of an exception, the creation of a legal charge that is also a local land charge does not require registration.102 The reasons for this exception are more fully explained in Part VII of this Report,103 but may be summarised as follows¾

 

which of course is

 

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.

 

And the applicable explanatory note

 

http://www.legislation.gov.uk/ukpga/2002/9/notes/division/4/14/1/7

 

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.

 

(registered estate - not unregistered estate)

[IS IT ME?]

Hi Fletch

 

I would not be so concerned, it is not the first time such a claim has been made

 

 

 

As we know, despite this "great news" the lenders were not stopped dead in their tracks and this matter did proceed to be heard by the Property Chamber

 

I am sure for the benefit of the other applications, not being Lamb, Is it Me?'s friend or the person that made the other application that was heard on 20 Jan 2014 - this yet unrevealed revelation will be made public at some stage. - If there is something that could help those other people, I am sure Apple and Is It Me? after encouraging people to make applications, would not abandon them now in their hour of need and keep such important information to themselves.

 

If you really think I would tell you then you know what.."...............

You will just have to wait for the ruling from the chamber, as you know you were there and what happened when the file came out lol lol

It stop you in your tracks as well you know and this can be confirm by the other applicants who were there!!!!

So just wait Ben not long to go now,

Why have you abandoned your own thread??????

Not many views there and I thought that you would be running home with it given your own posts,

[IS IT ME?]

Ben

So the above post is law or is it a report!

[IS IT ME?]

This is the FULL sec not just the bit you post Ben

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.

 

 

It CLEARLY states you CAN NOT do that which you have tried very very hard to say we can Ben , nice try lol

[Crapstone]

On another note and not to detract - At this rate with the way the wind is blowing there may not be much title to be had and I'm in the Midlands so it must be like hell on the coast and with the floods to boot. Not good at all..

 

It would be interesting, as I've stated before, on how any properties that have sub-prime mortgages AND have had block insurance inflicted on them are dealt with. As previous, they seem to under insure at the max. premium so with such a large event and so many properties involved we might just get a clue what this would mean if a claim for the whole of a property were to happen and what position it would leave the homeowner in. Just a thought..

[Crapstone]

Apple can you post just a quick synopsis of the key points you are trying to make without copy and paste. Just the ones you are contesting - in brief please.

[fletch70]

To answer Bens question, I am guessing posts are being edited by the poster or moderated by the team hence posts move. I am also guessing that some of the sillier posts , mine included have been removed.

 

 

Crapstone that would be a great idea, saves me staying up all night reading and cross referencing although as it is now 5 am it might help me sleep

[applecart]

BINGO!!!

I wish others could see the error of their ways, lol

 

It will take a while.

 

Some have no issue in understanding that 'yellow and blue make Green'

 

Some will insist that - No - it is 'Blue and Yellow that makes Green'.

 

The outcome will be the same....so long as yellow and Blue is the ingredient.... it will always be Green.

 

under LRA s.23 no borrower has statutory power to grant a mortgage by demise nor a legal charge or any type of disposition that will cause the same effect - The Law is the Law....it is Yellow and Blue.....the FACT remains.....as a Borrower - no matter which way round you look to interpret the statute.....it remains the same.....you still have no power to mortgage your "Estate" or mortgage your "Charge" by way of Legal Sub-Mortgage.......end of ; )

 

 

Apple

[applecart]

Apple can you post just a quick synopsis of the key points you are trying to make without copy and paste. Just the ones you are contesting - in brief please.

 

The application looks to the Chamber to say:

 

The Deed is void - the lender has not executed it.

 

The Mortgage is void - the estate is a registered estate - the Borrower has no statutory power to mortgage it.

 

Issues:

 

Lender asserts - Borrower is bound by the Deed - Not the Lender

 

Lender asserts - Borrower has power to mortgage registered estate.

 

As I understand it so far:

 

Chamber agree - Borrower has no power to Mortgage Registered Estate

 

Chamber agree - Borrower not bound by Deed when Lender has failed to execute the deed.

 

Lender has 28 days to set aside decision

 

Apple

[applecart]

http://www.bailii.org/ew/cases/EWCA/Civ/2008/452.html

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2010/1396.html

 

I have had chance to look at both of these now Crapstone.....I could see no reference made to LRA s.23.

 

Apple

[IS IT ME?]

I have had chance to look at both of these now Crapstone.....I could see no reference made to LRA s.23.

 

Apple

 

Hi,

Apple thanks for your help and for keeping this going as I for one watching this can see that the team want to close this AGAIN with the last couple of posts by them.

Sorry but I still can not post which I and others find very very strange but as others have been albe to see that my replies to you and others have been stopped it will all come out in the end.

I have also asked why some posters have got away with things when we have been put in the dock??? Yet to have an answer!

[sequenci]

Sorry but I still can not post which I and others find very very strange

 

I'm sure you've been told as to why you're still on moderation. All moderation is periodically reviewed - and I'm sure yours will be lifted once it has been decided your posts don't need to be reviewed.

 

I have also asked why some posters have got away with things when we have been put in the dock???!

 

If you see something that requires the Site Team's attention you should report it. I don't ever see reported posts from you. The process is there

Edited February 15, 2014 by ims21

[Peterbard]

This is the FULL sec not just the bit you post Ben

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.

 

 

It CLEARLY states you CAN NOT do that which you have tried very very hard to say we can Ben , nice try lol

 

I know I said I wold not comment on here again but it really is exasperating.

 

Where exactly does it say that a owner of a registered estate cannot create a mortgage by way of a charge ?

[citizenB]

To answer Bens question, I am guessing posts are being edited by the poster or moderated by the team hence posts move. I am also guessing that some of the sillier posts , mine included have been removed.

 

 

 

This will only happen if a post is unapproved/deleted for some reason. Editing only changes the post itself, not the post count.

[bhall]

If you really think I would tell you then you know what.."...............

You will just have to wait for the ruling from the chamber, as you know you were there and what happened when the file came out lol lol

It stop you in your tracks as well you know and this can be confirm by the other applicants who were there!!!!

So just wait Ben not long to go now,

Why have you abandoned your own thread??????

Not many views there and I thought that you would be running home with it given your own posts,

 

Ok, just this once, I will take the bait.

 

So you are not going to post it because you don't want to tell me, as I was there and I know what it was ?

 

If I was there and if I know what you are talking about, why am I posting what I have continued to post ?

 

For the record, I was not there and I have no idea what you are talking about.

 

However, I do admire your commitment to this thread, as on the day of the hearing you still found time to post.

[IS IT ME?]

Dodgeball,

 

Originally Posted by IS IT ME?:

This is the FULL sec not just the bit you post Ben

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.

 

 

It CLEARLY states you CAN NOT do that which you have tried very very hard to say we can Ben , nice try lol

I know I said I wold not comment on here again but it really is exasperating.

 

Where exactly does it say that a owner of a registered estate cannot create a mortgage by way of a charge ?

 

I can not see for the life of me why you are so so blind and just out to wind people up,

Does it not say. OTHER THAN!!!!!!!!!!!!!!

We had this at the chamber

I can not be any clearer than that YOU CAN NOT DO IT !!!!!! Understand

This has been as much confirmed at the hearing!

[Peterbard]

It will take a while.

 

Some have no issue in understanding that 'yellow and blue make Green'

 

Some will insist that - No - it is 'Blue and Yellow that makes Green'.

 

The outcome will be the same....so long as yellow and Blue is the ingredient.... it will always be Green.

 

under LRA s.23 no borrower has statutory power to grant a mortgage by demise nor a legal charge or any type of disposition that will cause the same effect - The Law is the Law....it is Yellow and Blue.....the FACT remains.....as a Borrower - no matter which way round you look to interpret the statute.....it remains the same.....you still have no power to mortgage your "Estate" or mortgage your "Charge" by way of Legal Sub-Mortgage.......end of ; )

 

 

Apple

 

I see what you are saying here apple about people taking the ingredients of an argument and coming to a conclusion, and you have taken them and done just that ,as have Ben and as have I.

 

Yet using the same starting facts you have come up with a completely different result, which is fine.

 

The difference is that there are others off here that have reached the same conclusions as Ben and i with the same facts, Ben has posted up many, many pieces of evidence which duplicate the same end findings.

 

However you have not shown anyone else who has duplicated your findings, or agrees that those starting point give the same result that you say they do , all the authority says different.

Can you explain this ?