Repossession questioned by deeds not being signed

[applecart]

The disposition has to be registered under section 27, I don't understand the point, sorry.

 

no point other than to clarify that ....s.27 (2)(a) is used for 'transfers'

 

you said the deed was a disposition to transfer the 'charge'

 

Apple

[Peterbard]

No Dodge - i was simply looking to see if you had over the past 40 years - had any experience of 'speciality contracts' .....it appears that you do...

 

can you say if those that you are aware of - that apply to 'land contracts'.....do they meet section 2...and is so; in what way and how do they comeinto being?

 

Apple

 

I am not sure what it is you are trying to get me to say Apple. Perhaps if you just tell me what you think a deed is, and support it with RELEVANT case law and legislation please

[Peterbard]

no point other than to clarify that ....s.27 (2)(a) is used for 'transfers'

 

you said the deed was a disposition to transfer the 'charge'

 

Apple

 

Yes I did, that would be correct, though section 3 I think.

[applecart]

I am not sure what it is you are trying to get me to say Apple. Perhaps if you just tell me what you think a deed is, and support it with RELEVANT case law and legislation please

 

i want you to explain to me what type of 'land contracts' you come across that are specialty contracts and do the ones you see meet section 2??

 

you know about contracts - you said that's what you deal with - you have done so for 40 yrs.....you have seen 'land contracts'.....i can't think of anyone else with your wealth of experience to ask right now.

 

 

Apple

[applecart]

Yes I did, that would be correct, though section 3 I think.

 

oh, ok..... so there is no way that a 'land contract' - the type of which you deal with - would include the transfer of the 'estate' then under s.27 (2)(a)?

 

Apple

[Peterbard]

i want you to explain to me what type of 'land contracts' you come across that are specialty contracts and do the ones you see meet section 2??

 

you know about contracts - you said that's what you deal with - you have done so for 40 yrs.....you have seen 'land contracts'.....i can't think of anyone else with your wealth of experience to ask right now.

 

 

Apple

Sorry I know you are trying to make some kind of point, but for the life of me I have no idea what it is.

 

The land contracts I was referring to are the ones mentioned in case law earlier in this thread and are required to have agreements which correspond to the section 2 requirement and also the ones which yo mistakenly think apply to deeds.

 

40 years?

 

Does the fact that I am so old bother you, not ageist are you Apple.

[Peterbard]

i want you to explain to me what type of 'land contracts' you come across that are specialty contracts and do the ones you see meet section 2??

 

you know about contracts - you said that's what you deal with - you have done so for 40 yrs.....you have seen 'land contracts'.....i can't think of anyone else with your wealth of experience to ask right now.

 

 

Apple

 

When did I say I have dealt with land contracts for 40 years ?

 

I haven't, I have had a house for over 40 years if that is what you mean, are you loosing it Apple ?

[applecart]

When did I say I have dealt with land contracts for 40 years ?

 

I haven't, I have had a house for over 40 years if that is what you mean, are you loosing it Apple ?

 

Are you going to answer the questions properly - stop 'dodging' Dodge ; )

 

Apple

[bhall]

Nothing from Is It Me? yet about the decision ?

 

Ok will check again later

[fletch70]

I do not want to detract from this thread so I have started a new one regarding the case I mentioned http://www.consumeractiongroup.co.uk/forum/showthread.php?418615-Arrow-Global-V-Frost-A-judgement-that-seems-to-go-against-perceived-wisdom

[Crapstone]

Are you going to answer the questions properly - stop 'dodging' Dodge ; )

 

Apple

 

The Apple has spoken Dodge. You are urged to answer the question NOW, THIS SECOND (& preferably with something that AGREES wholly with the APPLE).

 

Thanks for posting that case Fletch. A very interesting read.

[Peterbard]

The Apple has spoken Dodge. You are urged to answer the question NOW, THIS SECOND (& preferably with something that AGREES wholly with the APPLE).

 

Thanks for posting that case Fletch. A very interesting read.

 

Yes a bit of a shocker fletches case isn't it. Not sure about Apples question though ?

[Crapstone]

Yes a bit of a shocker fletches case isn't it. Not sure about Apples question though ?

 

I was a bit DUMBSTRUCK by it

[Peterbard]

I was a bit DUMBSTRUCK by it

 

Ha Me too

[Crapstone]

I hear you.

 

To me, if there is a decision - I would like to see it asap - time is ticking.

 

you enjoy your hols... safe jouney ; )

 

Apple

 

 

TICK TOCK. Surely you'd already know by now with the interest you have in the case? Why should or would anyone give you that information even if they had it? Only the parties involved have sight of the decision and have you not questioned why they haven't told you or asked you to get further involved?

 

You are very presumptuous in thinking you'd have any part in fighting this for 'years' and will take it as far as European Courts unless you are putting YOUR money where your mouth is!

 

If they no longer want your advice and you are not a party in the proceedings than just how are you going to move the case on? Are you getting a case of your own together?

[steampowered]

There is nothing that is not 'challengable' SP

 

The specialty contract has to be signed by both parties (Lender and Borrower)....if the Borrower did not sign; then the Lender could argue his equitable remedy......thing is; borrower signed, lender didn't......there is no reliance on part performance

 

If the Borrower did not sign - but the Lender did - then, that's where the Lender can fairly look to an equitable remedy I would have thought.....

 

No Borrower is going to look to a lender to sue him or take his property or his money due to an equitable plea - when the Borrower was not at fault - surely not??

 

 

Apple

 

I think its important to be clear about the different levels of formality required.

 

Disposition of land or an interest in land - Must be made as a deed (also known as specialty contract) pursuant to the Land

Registration Acts. Deeds must be signed by the party to be bound, witnessed and delivered.

Contract for the disposition of an interest in land or an interest in land - Does not need to be a deed but ,ust be signed by both parties pursuant to s2 LPMPA.

All other contracts - No formality required whatsoever. You do not even need a written document. A contract formed by conduct or an oral contract is perfectly enforceable. Though obviously if the lender doesn't have his documentation properly arranged then some of the detailed terms of the contract may be difficult to prove.

[Crapstone]

I think its important to be clear about the different levels of formality required.

 

Disposition of land or an interest in land - Must be made as a deed (also known as specialty contract) pursuant to the Land

Registration Acts. Deeds must be signed by the party to be bound, witnessed and delivered.

Contract for the disposition of an interest in land or an interest in land - Does not need to be a deed but ,ust be signed by both parties pursuant to s2 LPMPA.

All other contracts - No formality required whatsoever. You do not even need a written document. A contract formed by conduct or an oral contract is perfectly enforceable. Though obviously if the lender doesn't have his documentation properly arranged then some of the detailed terms of the contract may be difficult to prove.

 

Don't be silly Steam! Just stop paying your mortgage and start flicking through the holiday brochures. It's a done deal already and a FACT of LAW in the World of Applecart. There is no contract law to be considered. Just a something for nothing attitude that would not score any points in the legal system, but they will seek to 'tweak' even if they don't have a case of their own to 'tweak'. I find that to be completely irresponsible.

[mollypockets]

Just a thought,,,,,,,,

 

imagine if IIM`s friend did win the case,what would the so called "lenders" (creating money from thin air and being ever so nice and considerate to lend us a wee bit) do?,,,,,,,,maybe both parties had no choice and came to some sort of arrangement ,,,,,,,,,,,,,,,,,,,,,something like a confidentiality agreement,,,,,,,if this was the case,then IIM could not come back to this site and we would never see (hear) from him again,,,,,,

 

does anyone think this could happen?????

[applecart]

I think its important to be clear about the different levels of formality required.

 

Disposition of land or an interest in land - Must be made as a deed (also known as specialty contract) pursuant to the Land

Registration Acts. Deeds must be signed by the party to be bound, witnessed and delivered.

Contract for the disposition of an interest in land or an interest in land - Does not need to be a deed but ,ust be signed by both parties pursuant to s2 LPMPA.

All other contracts - No formality required whatsoever. You do not even need a written document. A contract formed by conduct or an oral contract is perfectly enforceable. Though obviously if the lender doesn't have his documentation properly arranged then some of the detailed terms of the contract may be difficult to prove.

 

Thanks for this SP

 

a) I think we are agreed that deed is a 'speciality contract' pursuant to the Land Registration Acts - please confirm?

 

b) I think we are also agreed that a 'Deed' must be signed, witnessed and delivered by the party to be bound - please confirm?

 

c) I think we are agreed that contracts created for a disposition of an interest in land or an interest in land does not need to be by deed but must be signed by both parties pursuant to section 2.

 

d) I think we are agreed that other types of contract - i.e - 'simple contracts' (e.g. -such as the type that come under the CCA - see Arrow Global v Frost) do not have to comply with section 2 LPMPA - because they are not 'specialty contracts' - please confirm?

 

At 'b)' above, - it will always be the 'borrower' that is 'bound'.....true?

 

However, there are 3 elements of 'formality' to be considered to decide if the Borrower is 'bound':

 

1) signed

2) witnessed

3) delivered

 

There is no isue in most instances to do with '1)' and '2)'.....each Borrower will have complied

 

However with '3)';

 

The question begs....How can the Borrower be 'bound' (remembering that the 'borrower' could be a Corporate, Company or indeed an individual) - when the RRO removed the former irrebuttal presumption of "delivery" (s. 1 (5)) - (just thinking here of what the Judge in 'garguillo' said......she said 'if and only if'......now - the Judge spoke of the 'it' in relation to the terms and the need for those 'terms' to be incorporated at the time of signing 'it'.........that 'it'...... can also apply to a boorower being 'bound' under s. 1 (3) - 'if and only if' 'it' is 'delivered' - I would have thought - makes logical sense?)

 

'Bibby' speaks of there being a requirement for the grantee (Lender) to "assume" the deed' - in fact - the LPA 74(A); the CA 2006 s.46 - speak of...... 'if and only if' too and is anaogous and directly correlated with section 1 (2) of the LPMPA......

 

The Judgement in 'lamb' - appears to make out that the borrower is 'bound' by the deed - without consideration and application of the merit behind the 'if and only if' - that was referred to in 'garguillo' - when he could have applied the same analogy to 'delivery'......???

 

I suppose the above is what it all boils down to really - is the Borrower 'bound' if the Lender has not complied with CA 2006 (or LPA 74(A) if corporate)....given that the statutory duty relates directly to s 1(2) LPMPA to execute the deed before any presumption of 'delivery' is evidenced - not forgetting we are talking - 'if and only if' - it is first 'assumed' thus 'executed' by the Lender??

 

In fact in 'bibby' - the Judge did home in on the fact that QCFS had not signed the deed - but was looking for the Directors to be 'bound' - that outcome was that the deed was 'void'.....(plus the additional issues that came to light in that case of course)

 

We cannot over look that it is only in relation to un-registered land that the form of deed is immaterial....btw

 

So, against the above - tell me, would you say the deed is 'delivered' when the Lender has not signed the deed?

 

Likewise - given that a deed is a specialty conract - would you say there is a valid contract in evidence where the Lender has not signed it?

 

Apple

 

edit: thought I'd add to the above.....if we find that the 'deed' is not a 'deed' - then reliance would fall to the document needing to at least meet section 2.....as a 'specialty contract'.....to secure the indebtedness in relation to an interest in land.......I suppose...if the lender has not signed it.....what then?

[applecart]

Just a thought,,,,,,,,

 

imagine if IIM`s friend did win the case,what would the so called "lenders" (creating money from thin air and being ever so nice and considerate to lend us a wee bit) do?,,,,,,,,maybe both parties had no choice and came to some sort of arrangement ,,,,,,,,,,,,,,,,,,,,,something like a confidentiality agreement,,,,,,,if this was the case,then IIM could not come back to this site and we would never see (hear) from him again,,,,,,

 

does anyone think this could happen?????

 

I would not rule out any possibility - I think in Ireland - lenders are engaging Borrowers into agreements - nothing to say it cannot and would not happen here I suppose?

 

On the flip side, a borrower may just have decided not to pursue the matter and caught up with the payments....

 

Works both ways I suppose MollyP ; )

 

Apple

[steampowered]

applecart - I agree with a to d.

 

I think we have probably been over this before, but where we disagree is on the meaning of delivery of a deed. I think this concept was really designed to deal with the kind of situation common in corporate transactions, where a deed is signed on one date but is not intended to take effect until another later date. There has been a strong presumption in favour of delivery for hundreds of years at common law. I personally take the view that signing a deed and handing it over to the lender constitutes delivery, and I do not think this concept can be used to imply a requirement that the lender must sign (particularly if there is no signature block for the lender on the deed).

 

 

We'll probably have to respectfully disasgree on this particular point.

[Peterbard]

applecart - I agree with a to d.

 

I think we have probably been over this before, but where we disagree is on the meaning of delivery of a deed. I think this concept was really designed to deal with the kind of situation common in corporate transactions, where a deed is signed on one date but is not intended to take effect until another later date. There has been a strong presumption in favour of delivery for hundreds of years at common law. I personally take the view that signing a deed and handing it over to the lender constitutes delivery, and I do not think this concept can be used to imply a requirement that the lender must sign (particularly if there is no signature block for the lender on the deed).

 

 

We'll probably have to respectfully disasgree on this particular point.

 

Yes of course, charges can be registered without the the deed being involved, the difference in a charge and a mortgage by way of charge(in the current form) is really only the way that the enforcement can take place.

 

The section 2 criteria in the normal course of events would be the agreement to take on the mortgage , ie the borrowers agreement to provide the deed and charge and the lenders to provide the money.

 

The actual actions, the delivery of the charge and the delivery of the money being the various performances under the agreement, and of course if either part did not perform the agreement could be used to sanction either party.

 

This does nothing of course if the borrower decides to execute the loan via the deed, or indeed if the lender decides to advance the money, this would not be breach of any agreement.

 

The land deal is executed by the deed as it always has been and as it must be according to the LOPA.

 

The issue with an equitable mortgage is that whilst the transfer is done via delivery of the mortgage(and traditionally this was enough) the new powers in the 1989 act require the additional safeguard of a signed document, this is not necessary (for the execution)when the charge is via the deed as there is already a statutory route which permits the charge and the mortgage.

[mollypockets]

Transfers executed by an Attorney (Rules 176 and 177).

 

7.2 A transfer deed which is to be executed under a Power of Attorney should be drafted in the same way as if it were to be executed by the transferror in person. (Form 9 should not be used for such transfers). It is not necessary to refer to the Power of Attorney in the deed but it is usual for the Attorney to execute the deed by writing "AB acting by his attorney CD". It will be necessary to produce the original Power of Attorney (or a certified copy) to the Registry together with evidence of its validity (Precedent 45).

 

See Precedent 45 (Word doc 20KB)

[mollypockets]

PRECEDENT 45

 

CERTIFICATE RELATING TO A POWER OF ATTORNEY

 

LAND REGISTRY

 

Folio: County:

 

Registered Owner:

 

I the undersigned .......... a partner/solicitor in the firm of .......... of .......... hereby certify as follows:

 

1. The Transfer dated .......... attached hereto was validly executed under a power of attorney dated .......... by the donee of the said power on behalf of the donor.

 

2. The donor of the said power is the same person as .......... named in the said Transfer.

 

3. The power of attorney has not been revoked.

 

OR

 

There is a conclusive presumption under Section 4 of the Powers of Attorney Act (NI) 1971 as to the validity of the transaction.

 

OR

 

There is a conclusive presumption under Article 11 of the Enduring Powers of Attorney (NI) Order 1987 as to the validity of the transaction.

 

Dated:

 

Signed:

[Peterbard]

Please find below Nram's response to my points raised regarding a non executed and therefore 'void' and unenforceable deed...

 

Section 2 of the LPMPA 89 applies to a contract for sale or deposition of an interest in land. A contract for sale or other deposition of land requires both parties to sign the contract. In terms of the Law of Property Act 1925 a deposition includes a mortgage. However a mortgage is an actual deposition and not an agreement for a deposition, therefore section 2 of the LPMPA 89 does not apply.

This position was recently confirmed in the case of the mortgage vs lamb where judge butler confirmed that mortgages are not within the scope of section 2 of the LPMPA.

 

A transaction creating an interest in land for example a mortgage must be made by a deed (section 85-87 of the LPA 25)

 

Section 1 (2) and (3) of the LPMPA 89 sets out the requirement for a valid

 

For your ease of reference I have enclosed a copy of your mortgage deed. It is clear that from the mortgage deed that the document was intended to be a deed and the execution clause expressly referred to the fact that the document was executed as a deed. I am confident that the mortgage deed was duly executed in favour of Northern Rock PLC now known as NRAM and therefore the deed is enforceable. The mortgage terms and conditions 2001 set the terms of the agreement..

 

You are indebted to NRAM plc and the present legal owner of the deed charges signed by you the borrow is NRAM

 

 

Obviously they are using the same arguments as previous... Any thoughts on the above before I submit my response and application to the property chamber?

 

 

From this thread last year, really says it all.