Repossession questioned by deeds not being signed

[Peterbard]

Sorry if I have this wrong as I was browsing and noticed the CCA mentioned, if the discussion on here is in regard to first charge mortgages they are exempt from the CCA of course as per section 16 of the act, as said I have not read the whole thread so forgive me if the information is not relevant.

[Peterbard]

Some general info here

 

http://www.legalmortgage.co.uk/#/mortgages-and-charges/4532753525

 

Yes, although in practice, the principal method of securing a loan of money over land is by what is called a charge by deed expressed to be by way of legal mortgage (indeed after the Land Registration Act 2002 came into force on 12th October 2003, this is the only method of creating a mortgage over registered land). Somewhat confusingly, this is called a "Legal Charge". It can be used to charge both freehold and leasehold property. In the case of freeholds, the effect of a legal charge is to give the lender the same protection, powers and remedies as if he had a term of 3000 years. In the case of leaseholds, the charge gave the mortgagee the same rights and remedies as if he had a sub-term one day shorter than the term vested in the mortgagor.

 

A legal charge is charged on the legal estate - that is the whole of the property, and will need to be entered into by the legal owners. It is possible however for one of two or more co-owners to charge what is called their equitable (or beneficial) interest. This is an equitable mortgage - a mortgage of an equitable interest.

 

Technically, a contract for a mortgage (which complies with the requirements of s 2 Law of Property (Miscellaneous Provisions) Act 1989) creates an equitable right to call for a legal mortgage and is thus deemed to be an equitable mortgage.

 

Mortgage lenders prefer the security of a legal charge because it gives them a right to possession and sale of the whole property. An equitable mortgage merely gives a remedy - the right to apply to the court for sale of the property in order to realise the borrower's equitable interest.

[Peterbard]

More relevant info here

 

http://www.legislation.gov.uk/ukpga/1989/34/section/1

 

(2)An instrument shall not be a deed unless—

(a)it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and

(b)it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

(3)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 the signature; or

(ii)at his direction and in his presence and the presence of two witnesses who each attest the signature; and

(b)it is delivered as a deed by him or a person authorised to do so on his behalf.

(4)In subsections (2) and (3) above “sign”, in relation to an instrument, includes making one’s mark on the instrument and “signature” is to be construed accordingly.

[Peterbard]

Hi Dogeball

 

You are taking this thread over old ground - Trust me, there is going to be very little that you are likely to find and post up that has not already been considered within over 4,000 contributuory posts so far........

 

I'm losing sight of your intent right now?......

 

 

Apple

 

Quite possible but it is a very long thread and forgive me but much of it is made up of opinion and rhetoric, in an attempt to evaluate your argument i am seeking reliable authority.

 

The requirements and legal status of a deed are explained in the last post but one;

The requirement of[ A] signature is in the last post.

 

If there is any legal authority which shows that this is not the case I haven't seen it and would be grateful if it could be presented or represented, just humor me

 

Or is there some other argument that is being put forward.

[Peterbard]

With respect Dodgeball - we have already thrown the concept of mortgaging any registered estate...no matter what ever term it may be expressed on the deed .... out of the equation.

 

I won't repeat the reasons why or the legislation that stands to refute the entire concept of mortgaging registered land. But, trust me; we know that mortgages are a LEGAL IMPOSSIBILITY no matter which way a lender looks to 'shoehorn' it to fit when the land is pre-existing registered land.......It would be a mistake for Borroers in the 'know' to be fooled by the website promoting them as we move applications forward.....

 

Trust me, it is not me that 'disagrees'' with you or the content in the link you posted......it is the LAW that disagrees with you and the content of the link you've posted.

 

We do our best to make sure that all viewers of this thread remain focused. No offence intended and hopefully non will be taken by you ; )

 

Apple

 

Sorry I mised this post, can I ask to which" law" you refer, and could you link it so I can evaluate it. many thanks

[Peterbard]

Dodgeball

Well why not just wait for the chamber to come back and then you will see, I can not feel that this is another case of " no you can't do that or it does not mean that in law " yet we and those that have taken this to the chamber have seen the tricks they have come up with so I say with respect just wait.

We have had people make some good points and some bad but just think we would NEVER have got this far if it was so wrong .

 

Oh I see

[Peterbard]

Hi Dodgeball......

 

You appear to assume that it is case law and authorities derived from case law that provides the "only" legal way forward...o......r the lord forbid..."the law".....this is what common practice does to the mind of man.....however, long before the clever, devious intent of the mastery of 'slight of hand' bestowed upon the unsuspecting public ..... as found in your posts (no offence to you) there was THE LAW.....

 

We have gone back to reliance of the LAW.... not with an intent to undermine case law - but to ensure that it does not stand against the might and thrust of the substantiating law!

 

Can't see anything wrong with that...hopefully you won't either?

 

Check the LAW when there is no case law.... you cant't go wrong....NO Judge is paid and intended to rely on case law alone without first having regard to the LAW!

 

Case LAW is devised by the Manipulation of the law by minds of man - their ability to shoehorn scenario to suit their personal capitalistic objective.....where as the LAW ?.... well.... the LAW is not intended to be manipulated and there is no hiding place within in.....

 

Apple

 

Sorry what does any of this mean ?

 

I asked for proof of your theories ?

[Peterbard]

Hi Is IT ME.....

.

 

There is no better recommendation IMO....can't think why anyone would veer away from the statutory protections contained in the law really?

 

Apple

 

Now we are getting somewhere.somewhere. Just link me to this "statutory protection".

[Peterbard]

Hi Dodgeball

 

Are you looking to make an application to the Chamber?

 

Apple

 

??

[Peterbard]

With respect; like every one else you'll have to start at Post #1..... this thread does not constitute a template....sorry dodgeball...... : (

 

 

Apple

 

I do not know how much simpler to make my request, if you are saying that mortgages are a "legal impossibility" please show the statute that confirms this, since you say you rely on statute.

 

Because there are a LOT of people with these impossible arrangements in place that would be very interested in seeing it.

 

I tried post one and then lost interest at about post 200, I am not interest in opinion or rhetoric as I said earlier, and neither will any court be, just case law and statute please,

[Peterbard]

With respect; like every one else you'll have to start at Post #1..... this thread does not constitute a template....sorry dodgeball...... : (

 

 

Apple

 

Just going back over this thread to try and find a point where you actually made a valid argument or answered a relevant question without sidetracking with irrelevancies i gave up.

[Peterbard]

I am not wasting any more of y time on this nonsense and I earnestly urge anyone else not to either , there is nothing of any value here.

 

Night all

[Peterbard]

 

In someway have added an additional requirement that the mortgage deed must also be signed by the lender. However, no such requirement is expressed or even implied by statute.

 

I think that is about it

 

Ben

 

Yes thank you this is the conclusion I came to

[Peterbard]

Apple have you actually read the post and quote that Ben has put up? I think the law, as quoted, has a very different meaning to what you are implying about it with regard to registered estates and ownership and the deeds being thus invalid. I've read it several times and looked it up and nothing substantiates what you are saying.

 

The deeds should be signed but again I can only imagine that a judge would look at the law, case law and then establish what the intention was by both parties and what the statute intended when it was made.

 

I agree

[Peterbard]

Thanks Bhall and Capstone for the relevant information. I came on here knowing very little on the subject, but being intrigued by the idea put forward by apple.

 

As usual in such situation I ignored opinion(any opinion) and sought out authority to disprove or prove the contention. I had an open mind, sadly the is none.

 

As Apple said this has been gone over before it seems, however the facts and there real interpretation seem to have been buried somewhat in a barrage of rhetoric and misinformed and unsubstantiated opinion.

 

I thank you for answering my questions and for some of the case law which I have not yet read but will, and hope to increase my knowledge further on the subject.

[Peterbard]

Hi Crapstone

 

Yes, I've read every single one of Ben's posts. He posts his opinion; his interpretations of the law and case law. He is welcome to do so....just like anyone else ; )

 

I'm interested to ask you......what do you mean by "The deeds should be signed".......do you mean: by the Borrower alone or do you mean - signed by the Borrower and the Lender?

 

Apple

 

Sorry crapstone I know this was addressed to you but

 

This is the point as stated by ben ;

"In someway have added an additional requirement that the mortgage deed must also be signed by the lender. However, no such requirement is expressed or even implied by statute."

 

Now you say that there is a statutory requirement for the lenders signature, we merely ask you to show where this requirement is. Certainly not in any of the information provided so far, that I have seen anyway.

[Peterbard]

Excellent post Ben....I’m impressed

 

Initially, you were advising one and all that ‘Owners Powers’ belonged to Lenders....ummm??

 

Now, it would seem that you are at last happy to accept that the ‘Owners Powers’ actually belong to the Borrower after all.....................aaahhh progress ; )

 

If you keep going along this same route.....you will eventually.....just maybe.....get fully up to speed with the OP and others.

 

However, you must be careful NOT to confuse yourself......or others.....as you move forward in your understanding and interpretation of property law.

 

It may have escaped you.......But, let me advise ...... Here in the UK we have two different land concepts ....the first is ‘un-registered’ land...and the second is ‘registered land’

 

As you would expect the Law stipulates what dealings you can or cannot do in relation to un-registered land different from any dealing in registered land.

 

It’s quite simple to find out if you are dealing in registered land.....here’s how....in the “property” section “A” on all titles....Borrowers will see a date depicting when their land was first registered.......that date will show as a date well ahead of the date that a lenders charge will be entered on the title, when a borrower takes a loan from the lender....to secure that indebtedness a date will be entered in section “c” in the “charges” section along with the lenders name.....Notably you will find at section “B”......the Borrower will see his own name......section “B” denotes the borrower as the “proprietor”...........this means the Borrower retains his status – he will remain the happy owner of an existing Registered Estate......Section “A” and section “B” are intended to stay the same....the only change on a registered estate will be in section “c”

 

The Un-registered land owner...well, he owns the free hold....he owns his land...although there was a drive to get all land registered....not all land owners have done so.....however; they do borrow money of course from lenders.....

 

For these un-registered land owners – Lenders can and do ;mortgage the estate....each time they do, they do so by charge by deed expressed to be by way of legal mortgage....pursuant to LPA s.87 (1)

 

Where a registered estate owner has no such power to “charge by deed expressed to be by way of legal mortgage”.......sub-section 4 simply means the Lender can trot along and mortgage the un-registered estate owners land without concern of LRA s.23 (1)(a) that relates to owners of a registered estate.

 

So, yes you are right...do not speak or mention the words ‘mortgage by demise’ and do not mention that word ‘or’......when we are talking about a Registered Estate...

 

(apologies if this post is duplicated)

 

Apple

 

A little confused by your post so forgive me.

 

You do know that land must be registered anway after the first mortgae

 

When title must be registered

(1)The requirement of registration applies on the occurrence of any of the following events—

(a)the transfer of a qualifying estate—

(i)for valuable or other consideration, by way of gift or in pursuance of an order of any court, or

(ii)by means of an assent (including a vesting assent);

(b)the transfer of an unregistered legal estate in land in circumstances where section 171A of the Housing Act 1985 (c. 68) applies (disposal by landlord which leads to a person no longer being a secure tenant);

©the grant out of a qualifying estate of an estate in land—

(i)for a term of years absolute of more than seven years from the date of the grant, and

(ii)for valuable or other consideration, by way of gift or in pursuance of an order of any court;

(d)the grant out of a qualifying estate of an estate in land for a term of years absolute to take effect in possession after the end of the period of three months beginning with the date of the grant;

(e)the grant of a lease in pursuance of Part 5 of the Housing Act 1985 (the right to buy) out of an unregistered legal estate in land;

(f)the grant of a lease out of an unregistered legal estate in land in such circumstances as are mentioned in paragraph (b);

(g)the creation of a protected first legal mortgage of a qualifying estate

http://www.legislation.gov.uk/ukpga/2002/9/section/4

 

So are you saying that any subsequent mortgages are void ? And if so why would that be ? The section quoted by you 23(1) does not apply for the reasons stated earlier, the pwsers for a charge under a mortgage deed lie elswhere http://www.legislation.gov.uk/ukpga/Geo5/15-16/20/section/87 ?.

 

This has been pointed out to you before.

 

I am unsure about the rest of your points or there relevance forgive me.

[Peterbard]

Hi Dodgeball

 

I'm sure Ben will appreciate your testimony and words of approval ; )

 

Apple

 

More nonsense.

 

I happen to agree with him as he quotes authority and gives reasoned logical analysis in his replies that is all.

[Peterbard]

I think most of the misunderstanding Apple is because you do not appear to understand this simple statement

 

These days most lawyers use the terms "mortgage" and "charge" interchangeably - usually to describe a loan or other indebtedness secured on land. Historically however, there was a fundamental difference. A mortgage involved a conveyance of land with what is known as a right of redemption - the effect of which was that upon full payment of the loan, the conveyance would become void or the land would be reconveyed. A charge on the other hand conveyed nothing but simply gave the chargee certain remedies by way of enforcement in the event of non-payment.

[Peterbard]

Hi Dodgball

 

Perhaps its best if you enlighten us all......what does the above 'simple' statement mean? and who made the 'statement'?

 

Apple

 

Ah I thought not I think you mean, enlighten you.

 

See my earlier link.

[Peterbard]

Sorry(re above) it is the difference between a charge as prescribed by the LRA and a mortgage as prescribed under the LOPA, the former does not effect the latter it says as much in the LoPA.

[Peterbard]

The legislators intent was clear.......to cause all land in the UK to be 'registered'. There is no statutory obligation for landowners to register their land. That does not mean that a landowner has no statutory power to 'mortgage' that land......the law as far as I can see clearly has not been changed to prevent him from doing so.

 

However, once it is 'registered'.....any subsequent loans against it......will be 'dealing in registered land'.....

 

The issue here in the UK is that Lenders have overlooked this FACT for years and more particularly since the majority of lenders are purely interested in the gains and financial benefits they can glean from "Mortgage Backed Securities' and the Money Markets......Borrowers have not been the priority for years......other than to provide the money to pay investors of course.....

 

It's time for change.....time to go' back to basics'.......John Major said that back in the day..... ; )

 

Apple

 

Sorry my point was that the land has to be registered on the first mortgage ?

 

More rhetoric, really OK if your into that kind of thing personally i like to stick to facts.

[Peterbard]

Great, there is no issue with you agreeing with him....and as you do.....then there is no issue in me pointing out that he will appreciate your testimony and words of approval.

 

However, to use words such as 'nonsense' in relation to my posts...well.....surely that's un-necessary.....surely it would be kinder for you to say "Apple, I'm sorry - I do not agree"....the word "nonsense" is a bit harsh don't you think?

 

Let's be polite....afterall......you do not have to agree with me...and neither I with you.....but, you know what......I will remain polite.....it would be kind of you to do conduct yourself in a like manner.... ; )

 

Apple

 

Yes lets be polite and stick to the subject in hand, look at the facts, not what we may think of other posters contributions, that would make no sense would it.

[Peterbard]

It's difficult to ascertain whether you are 'asking' or 'telling' me this???

 

As I understand 'charge' and 'mortgage'...they have the same legal effect and legal presumption - regardless as to whether you look to the LRA or the LPA.....both are types of 'disposition' intended to be created by Deed.

 

Apple

 

I am telling you This is the root of your problem, you need to read up a bit. I cannot really say it any clearer tan I have already to quote again :

 

These days most lawyers use the terms "mortgageicon" and "charge" interchangeably - usually to describe a loan or other indebtedness secured on land. Historically however, there was a fundamental difference. A mortgageicon involved a conveyance of land with what is known as a right of redemption - the effect of which was that upon full payment of the loan, the conveyance would become void or the land would be re-conveyed. A charge on the other hand conveyed nothing but simply gave the charges certain remedies by way of enforcement in the event of non-payment.

 

You have started your theory with a misconception and tried to justify it by misinterpretation of the statute i am afraid, you have to go back and re examine your basic knowledge on the subject.

 

Sorry

[Peterbard]

Lenders speak of BTL not being regulated ....... I've yet to look into why they make this claim.......

 

 

I believe this refers to the loan agreement not being regulated either under the FCA or the Consumer credit act(exempt agreement).