Repossession questioned by deeds not being signed

[bhall]

It will be interesting, like I say to see how they deal with it.....likewise; what about the issue of 'mortgages by demise'....how are they going to deal with that????? are they really going to say that a lender who clearly states within the deed 'we will sign when we have been paid all the money' is not giving effect to a 'mortgage by demise'????...

 

http://www.legislation.gov.uk/ukpga/2002/9/section/51

 

 

51 Effect of completion by registration

 

On completion of the relevant registration requirements, a charge created by means of a registrable disposition of a registered estate has effect, if it would not otherwise do so, as a charge by deed by way of legal mortgage.

[bhall]

Duplicate post

[bhall]

Mortgage by demise - Be very interested to read the response from the Property Chamber on that one. Especially given the required content of a deed for a mortgage by demise (being very different to a mortgage by legal charge).

 

All I can say is that I did try to tell you, before the document was submitted, giving the opportunity for it to be changed.

 

Nothing more I could have done, my conscience will be clean.

[bhall]

If you look at what is a mortgage by demise, it is undeniable that the disputed deed does not grant a demise.

 

A mortgage by demise is when the borrower grants a term (lease) to the Lender. In a deed that grants a demise it will of course detail the lease (with no reference to a granting a charge by deed expressed to be by way of legal mortgage).

 

A deed granting a demise will also contain specific reference to cesser on redemption - The automatic ending of the lease upon the repayment of the debt.

 

Whereas a deed by legal charge will contain content similar to that posted previously and it will grant a charge by deed expressed to be by way of legal mortgage.

 

If it was a mortgage by demise - where in the deed does it say that it grants a term and not a charge by deed expressed to be by way of legal mortgage.

 

The content of the deed and what it specifies is granted by the borrower to the lender defines the difference between a deed by demise and a deed by legal charge.

 

To be clear it is impossible for a deed that grants a charge by deed expressed to be by way of legal mortgage to grant a mortgage by demise.

 

Furthermore the document confirms that a charge has been registered and s.51 of LRA 2002 confirms that " a charge created by means of a registrable disposition of a registered estate has effect, if it would not otherwise do so, as a charge by deed by way of legal mortgage" - Further confirming the deed grants a legal charge and not a demise.

 

For those that do not have access to law books, simply use google and look up both mortgage by demise and cesser on redemption - The search results will include various law books, you can see for yourselves what is granted by the borrower to the lender. There can't be any confusion between a mortgage by demise and a mortgage by legal charge.

 

Even one of Apples most trusted resources for information, Wikipedia explains the difference between the two. Note the requirement that a lender as argued by Apple must sign the deed by legal charge, is not mentioned at all (for obvious reasons)

 

http://en.m.wikipedia.org/wiki/Mortgage_law

 

Ben

Edited July 18, 2013 by bhall

[bhall]

bhall

Is that why the mortgage term has a time preriod as well and the terms and conditions which are also on the deed??? which also form part of that deed

 

No

 

You are confusing 'term' in relation to the repayment period specified in the mortgage agreement, usually 25 years with the term of the lease that would be specified in a deed for a mortgage by demise of usually 3000 years

 

http://books.google.co.uk/books?id=7ZcTb0Z_OHQC&pg=RA6-PA686&lpg=RA6-PA686&dq=mortgage+by+demise+3000+years&source=bl&ots=Hm_Hng8yvI&sig=jjgXH2Hd0JngUezpu14BSdIQZzY&hl=en&sa=X&ei=3hvoUf7JMsPm4QSeooEg&ved=0CD4Q6AEwAQ#v=onepage&q&f=false

 

Might be an idea to also read the following

 

http://books.google.co.uk/books?id=43ZTV0ClTBEC&pg=PA387&lpg=PA387&dq=mortgage+by+demise&source=bl&ots=uzlFaLciKy&sig=Yh7dNqvAcC95gOauckk3Crq9wC0&hl=en&sa=X&ei=cxvoUfyAF4mB4ASjpoHYCg&ved=0CEgQ6AEwADgU#v=onepage&q&f=false - Explains the difference between a mortgage by demise and a mortgage by legal charge

Edited July 18, 2013 by bhall

[bhall]

bhall

Is that why the mortgage term has a time preriod as well and the terms and conditions which are also on the deed??? which also form part of that deed

 

Well said Is It Me...no need for me to add any more than what I stated previously - Thank you : )

 

Apple

 

I am surprised with your 'knowledge' you are not aware of the difference (I am sure despite your above response you will say you are)

 

Law of Property Act 1925

 

85 Mode of mortgaging freeholds.

 

(2)Any purported conveyance of an estate in fee simple by way of mortgage made after the commencement of this Act shall (to the extent of the estate of the mortgagor) operate as a demise of the land to the mortgagee for a term of years absolute, without impeachment for waste, but subject to cesser on redemption, in manner following, namely:—

 

(a)A first or only mortgagee shall take a term of three thousand years from the date of the mortgage:

 

 

Anyone with a mortgage agreement with a term of 3000 years ? Nope.

 

s.87 of course relates to charges by way of legal mortgage

 

I should stress that the content of a deed granting a mortgage by demise, is different to that of a deed granting a mortgage by legal charge. It is not possible to confuse the two as each will be clear as to what has been granted. Look at any mortgage deed since 1925 and it will take about 5 seconds to see if it is granting a mortgage by demise of a mortgage by legal charge.

Edited July 18, 2013 by bhall

[bhall]

The Law says a conveyance must be by DEED not CH1 or CH2….

 

s.205 of the Law Of Property Act 1925

 

205 General definitions.

 

“Conveyance” includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument, except a will; “convey” has a corresponding meaning; and “disposition” includes a conveyance and also a devise, bequest, or an appointment of property contained in a will; and “dispose of” has a corresponding meaning;

 

s.103 of the Land Registration Rules 2003

 

Form of charge of registered estate

103. A legal charge of a registered estate may be made in Form CH1.

 

 

Contrary to Apples assertion the law as shown above actually confirms that a conveyance (granting a charge) can be made by a CH1 form.

 

I think the biggest clue is that the heading of the CH1 form is 'Legal charge of a registered estate'

[bhall]

so, yes with my knowledge, I am as you rightly say...'aware of the difference' : )

 

Apple

 

 

Apple

 

Strange then that you would say what you did in response to Is It Me?

 

Strange also that as you are aware of the difference, you continue to insist that a deed that grants a mortgage by legal charge, can grant a mortgage by demise - Where in the disputed deed, does it refer to granting of a lease etc

 

If we refer to the latest Accord Deed as an example - How can it be a deed for a mortgage by demise ?

 

http://www.accordmortgages.com/documents/ACCL0002MR.pdf

 

It even states very clearly "charges the Property by way of legal mortgage"

[bhall]

Hi Ben,

 

First you touted 'Eagle Star'....we are waiting for you to re-address the contentions posed to you???

 

Second you fail to advise your interpretation of 'specialty contracts'....we are still waiting for that??

 

Third you opposed the draft written representation....Those concerns have been addressed herein...

 

Ben, perhaps you should consider starting a thread on 'mortgages by demise'?...that may help us all......

 

This thread asserts that 'mortgages by demise' are illegal, and that they can be created by 'devise' as defined within the LPA 1925 section 205....END OF

 

so, yes with my knowledge, I am as you rightly say...'aware of the difference' : )

 

Apple

 

 

Apple

 

Hello Apple

 

With respect you say that Eagle Star (a judgement from only 11 years ago) is out of date but yet refer to matters dating 400 hundreds of years in your document. Some people might say that is hypocritical but I wouldn't.

 

In response to your assertions, I disagree, I say this because there is nothing within the subsequent amendments to the applicable legislation that states or even implies that a lender must sign the deed.

 

Remember Is It Me? has already been informed by the Property Chamber that

• Charges do not as a matter of law always require execution by the lender as well as the borrower.
  
• The charge is created by the borrower not the lender so generally only the execution by the borrower is needed.
  

In your document you say

 

"For the benefit of doubt, it is submitted that a deed in relation to the conveyance of land is a specialty contract and as such; it must be signed by both parties, in this case, those parties are [enter lenders name] and the applicant. It is understood that this is necessary to avoid the statute of frauds Act 1677 part IV."

 

However you also say

 

"It is understood that the creation of a mortgage by demise is evinced when a deed of conveyance, is signed by the Borrower alone"

 

One minute you say the deed of conveyance is signed by the borrower alone and then you say it must be signed by both the lender and the borrower ?????

 

we shall await the next response from the Property Chamber, as it will demonstrate (if it is posted in this thread) how much you have misunderstood the applicable law

Edited July 18, 2013 by bhall

[bhall]

I think I need to spell out the obvious here, a deed that grants a mortgage by legal charge cannot grant a mortgage by demise

 

A Deed can only grant what it states that it grants, it can't grant anything else, no matter how much you want it too

[bhall]

Hello URAM

 

Eagle Star Insurance Company Ltd v Green & Anor [2001] EWCA Civ 1389 (8 August 2001)

 

This is my view

 

12. So, says Mr Green, section 2 requires the signature of all the parties to a mortgage, being a contract for the disposition of an interest in land. He says that if you look at this mortgage at the end where the signatures appear it will be seen (on page 50 of Volume 1 of the bundles of documents) that there are the signatures of himself and Miss Challis, but there is no signature on behalf of Eagle Star. So, he submits, the mortgage of 8th November 1989 does not comply with the requirements of section 2 of the 1989 Act, which by then had come into force. He made it clear that it is not disputed that he owes money to Eagle Star, but there is a dispute about the precise amount. He emphasised that he has been regularly paying monthly payments to Eagle Star, though he accepts there are arrears. He says that the effect of applying section 2 to the mortgage of 8th November 1988 is that it is unenforceable. That means that the Eagle Star company are not entitled to obtain the order for possession which it obtained from His Honour Judge Jones. He emphasised a number of times during his submissions that without the signature of someone on behalf of Eagle Star the mortgage is not a full and complete legal document and so they are not entitled to enforce the charging provisions in it against him.

 

13.Mr Green referred to some passages in the report of the Law Commission which led to the bill enacted in the 1989 Act. He referred to passages in the Law Commission Paper No.164, in particular 4.5, 4.6 and 4.8. He also referred to a number of authorities. I think the most important of these (because it was concerned with a mortgage, while the other cases he referred to concerned contracts for the sale of land) was United Bank of Kuwait Plc v Sahib [1997] Ch at 107. I have been supplied with a copy in [1996] 3 All ER 251. That is an important case. It decided that the requirements contained in section 2 of the 1989 Act to the effect that a contract for the sale or other disposition in land must be in writing in a single document incorporating all the terms and signed by the parties, abolished the rule that a mere deposit of title deeds relating to property by way of security created a mortgage or charge. Following the 1989 Act the rule had changed. There had to be a written document, not merely a deposit of title deeds by way of security in order to create a mortgage or charge.

 

14.Mr Green relied on that for the proposition that the same should apply to this case because there was, in this case, within the mortgage deed a contract by him in the form of the covenant to repay. There were also contractual provisions or covenants by Eagle Star. So, he said, if the mortgage in United Bank of Kuwait v Sahib was governed by section 2 of the 1989 Act, so should this mortgage with similar results for its enforceability.

 

15.In my judgment this argument does not stand any real prospect of success. This is not a case of a contract: it is a case of a deed. If we were simply dealing with a contract to create a mortgage then Mr Green would be right. But in this case he and Miss Challis have actually executed a deed. It is clear from the provisions of the 1989 Act itself that a distinction is drawn between the formal requirements affecting the execution of deeds and the formal requirements governing contracts. Section 1 makes alterations to the law about the execution of deeds. For example, they are no longer required to be written on any particular kind of substance and a seal is not required for the valid execution of an instrument as a deed by an individual. There are a number of detailed provisions in section 1 relating to deeds. Section 2 does not apply to deeds; it applies to contracts. It may be a contract for the sale of land, it may be a contract for some other kind of disposition of an interest in land, one other kind of disposition being a transfer by way of security over what is commonly called a mortgage or charge.

 

From the above

 

1) The Appllant claimed that the signature of all the parties to a mortgage, being a contract for the disposition of an interest in land was required.

 

2)However,there are the signatures of himself and Miss Challis, but there is no signature on behalf of Eagle Star.

 

3) He emphasised a number of times during his submissions that without the signature of someone on behalf of Eagle Star the mortgage is not a full and complete legal document and so they are not entitled to enforce the charging provisions in it against him.

 

4)In my judgment this argument does not stand any real prospect of success. This is not a case of a contract: it is a case of a deed. If we were simply dealing with a contract to create a mortgage then Mr Green would be right. But in this case he and Miss Challis have actually executed a deed. It is clear from the provisions of the 1989 Act itself that a distinction is drawn between the formal requirements affecting the execution of deeds and the formal requirements governing contracts.

 

I personally feel that the subsequent amendments as a result of the RRO 2005 would have no effect on the outcome of this case, if it was to be reheard today. From what I have read, Apple has merely confused the requirements of what the legislation stipulates what a company must do when it grants a deed, with Apples need to prove that a company must also execute a deed that has been granted by an individual.

 

If legislation required both parties to sign the deed, it would do so very clearly as it does for for contracts for the sale of land (LPA 1989 s.2)

 

"The document incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract."

 

and for consumer credit agreements (CCA 1974 s.51)

 

"a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and"

 

The legislation, simply does not include any such requirement in relation to deeds

 

Ben

Edited July 18, 2013 by bhall

[bhall]

s.205 of the Law Of Property Act 1925

 

205 General definitions.

 

“Conveyance” includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument, except a will; “convey” has a corresponding meaning; and “disposition” includes a conveyance and also a devise, bequest, or an appointment of property contained in a will; and “dispose of” has a corresponding meaning;

 

s.103 of the Land Registration Rules 2003

 

Form of charge of registered estate

103. A legal charge of a registered estate may be made in Form CH1.

 

 

Contrary to Apples assertion the law as shown above actually confirms that a conveyance (granting a charge) can be made by a CH1 form.

 

I think the biggest clue is that the heading of the CH1 form is 'Legal charge of a registered estate'

 

[*]What is the significance of an obligation for further advances? does this make the deed a contract? is there a general consensus from opposing corners that a (lender) signature is required in this instance?

 

Hello Uram

 

Further to the above, as confirmed by the Property Chamber in this thread by Is It Me?

 

"The LR form CH1 does not require execution by a lender except where a note on the register of an obligation to make further advances has been applied for."

 

The Property Chamber has confirmed that a CH1 can be signed by the borrower as a deed to grant a legal charge (A charge by way of legal mortgage) - does not have to be signed by the lender unless there is an obligation to make a further advance.

 

The CH1 form is the Land Registry's own form of charge. It would not be rational to conclude that whilst the Land Registry's own form of charge does not need to be signed by the lender, the lenders own form of charge, which has been approved by the Land Registry must be signed by the lender. - A Lender can either use a CH1 form or its own form - either form can be used, when signed by the borrower to grant a legal charge.

How can anyone say that two forms that both perform exactly the same function and are both subject to exactly the same legislation - one must be signed by the lender and the other doesn't have to be ? Why doesn't the arguments used by Apple apply to the CH1 form ? - In exactly the same way as the charge forms used by lenders the CH1 for the same reasons is "a charge by deed expressed to be by way of legal mortgage" - The logic in Apple's arguments even from a common sense perspective is more than questionable.

 

 

If you compare a charge form used by a lender - http://www.accordmortgages.com/documents/ACCL0002MR.pdf

 

it states -

 

"The Borrower with full title guarantee charges the Property by way of legal mortgage with the payment of all monies which are or may become payable to the Lender by the Borrow"

 

and

 

"Signed as a deed by the Borrower"

 

Whereas a CH1 http://www.accordmortgages.com/documents/ACCL0002MR.pdf

 

States -

 

The borrower with

full title guarantee limited title guarantee

charges the property by way of legal mortgage as security for the payment of the sums detailed in panel 9

 

The CH1 form also states

 

The borrower must execute this charge as a deed using the space opposite.

 

Apple will go on to say Apple is right in all things related to Property Law - We will see if this is the case, when and if the response from the Property Chamber to Apples document is posted in this thread.

Ben

Edited July 18, 2013 by bhall

[bhall]

I thought Caggers were banned for creating alias's....????

 

if that snide comment is directed at me

 

CAG Rules

 

7 ACCOUNT RESTRICTIONS

 

7.4 Whilst we do not forbid the use of second accounts, we will restrict site access to users who create multiple usernames in order to abuse the process of forum postings - for instance when one account is used to give an apparent weight of opinion or to validate the statement of their other accounts. In such circumstances, both (or all) usernames may face restrictions.

 

As I am the only person that is disagreeing with you, what other poster is posting to 'give apparent weight of opinion or to validate' to the statements I make, when I am the only saying them ?

 

However, under the same rules

 

7.1 There are various options available to the Site Team when dealing with users who have broken site rules. These include (but are not restricted to) the removal of individual posts, restriction or removal of the site’s Private Messaging facility, moderation (meaning a user’s posts will be subject to checking prior to them appearing on the forum), and in more serious instances, a user may be banned.

 

My Private Messaging facility is working fine, just in case you are wondering, I would send you a PM to prove it but as I understand it yours isn't

 

I have reported your accusation to the Site Team to consider. - If I am able to continue to post, it will prove that your accusation is baseless, without foundation and is nothing more than an attempt to undermine the information I have posted.

Edited July 18, 2013 by bhall

[bhall]

Apple

 

It is disappointing that you have attempted to make this personal. However, this just reinforces the weakness in your arguments.

Edited July 18, 2013 by bhall

[bhall]

"For the benefit of doubt, it is submitted that a deed in relation to the conveyance of land is a specialty contract and as such; it must be signed by both parties, in this case, those parties are [enter lenders name] and the applicant. It is understood that this is necessary to avoid the statute of frauds Act 1677 part IV."

Where has this quote originated from?

 

Hello Unram

 

I don't know where the quote came from but at a guess with Apple it will either be from wikipedia or one of the free planet / void mortgage sites.

 

However, this is a link to the legislation referred to by Apple -

 

Statute of Frauds (1677)

 

IV No Action against Executors, &c. upon a special Promise, or upon any Agreement, or Contract for Sale of Lands, &c. unless Agreement, &c. be in Writing and signed.

 

Noe Action shall be brought . . . whereby to charge the Defendant upon any speciall promise to answere for the debt default or miscarriages of another person . . . unlesse the Agreement upon which such Action shall be brought or some Memorandum or Note thereof shall be in Writeing and signed by the partie to be charged therewith or some other person thereunto by him lawfully authorized.

 

The provisions of s. 4 of the 1677 Act were re-enacted in s. 40 of the Law of Property Act 1925

 

40 Contracts for sale, &c, of land to be in writing

 

(1)No action may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorised.

 

(2)This section applies to contracts whether made before or after the commencement of this Act and does not affect the law relating to part performance, or sales by the court.

 

which remained the law until the Law of Property Act (Miscellaneous Provisions) Act 1989.

 

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

 

As usual Apple has referred to legislation, which doesn't support Apples argument.

 

Re: statute of frauds Act 1677 part IV

 

" signed by partie to be charged"

 

Re: Law of Property Act 1925

 

"signed by the party to be charged"

 

The party to be charged is the party against whom enforcement of the agreement is sought.

 

This is confirmed by Blacks Law Dictionary

 

http://thelawdictionary.org/party-to-be-charged/

 

What is PARTY TO BE CHARGED?

 

"a term that is applied to the person who an accusation is brought against them in court or a person who is forced to fulfill an agreement."

 

In the document prepared by Apple it is confirmed that the borrower (party to be charged) signed the deed.

 

In otherwords action is being brought upon the deed that has been signed by the party charged - being the borrower.

Edited July 19, 2013 by bhall

[bhall]

Ben

This is what you posted???

You15.In my judgement this argument does not stand any real prospect of success. This is not a case of a contract: it is a case of a deed. If we were simply dealing with a contract to create a mortgage then Mr Green would be right. But in this case he and Miss Challis have actually executed a deed. It is clear from the provisions of the 1989 Act itself that a distinction is drawn between the formal requirements affecting tr post does not make any sense .

READ your own post

What the hell is a mortgage deed??? you CREATE a mortgage with it

I know you would like to put people off or that is your job but this is NOT going away nor are you going to win.

 

Hello Is It Me?

 

Just to be clear the extract you have posted is from a Court case and not my own words.

 

However, in response to your question - A mortgage deed is the document that grants the lender a mortgage by legal charge or prior to the LRA 2002 - if the content if that deed refers to the lease - the mortgage deed grants the lender a mortgage by demise.

 

 

It is not a matter of putting people off or winning. I have no interest in putting people off.

 

My sole interest in this matter is correcting the incorrect interpretations posted on this subject which I feel do not provide or offer any real help to Caggers.

 

Incorrect information, causes more harm than good

[bhall]

Apple,

 

There is no question as to whether a Deed is not intended to be a 'speciality contract'....

 

Are you suggesting that all deeds are specialty contracts? If so this contradicts everything I have read and understood about a deed as a unilateral declaration and quite distinct from a bilateral contract. Are you referring to a specific type of deed relevant to this context? If so, again where is the reference definition? I think Ben has a point insofar as there does not seem to be any legislation that actually states "a mortgage deed requires the signature of the lender". I appreciate in my own situation it may be required for the deed to act as a contract but I also wish to address the general case. Please know I am not taking sides it is in my interests to remain neutral.

 

Hello

 

Becareful it will be suggested that you are my alias. As per Apples previous post.

 

Deeds can be either unilateral or bilateral depending upon its content. (For Apples benefit, even Wikipedia confirms this to be true)

 

If all of the stated obligations are to be performed by one party it is unilateral - whereas as if the deed contains obligations for both parties it is bilateral - In the case of a mortgage deed this would be an obligation to provide a further advance.

 

If the deed is unilateral - only the obligated party needs to sign the deed. This is because it is only that party that is stating it will perform the specific actions stated in the deed.

 

If the deed is bilateral - as an example when the lender is obligated to provide a further advance - Both the lender and borrower sign the deed to confirm they agree to the actions detailed within the deed.

 

Ben

 

Looks like I can still post ;-)

Edited July 19, 2013 by bhall

[bhall]

ben

As I say you make no sense nor any contribution to this matter other than put people off I shall ask that you are ban from this thread as you do not answer any of the questions when put to you by apple or me, Apple has and I HAVE checked written correctly so far you on the other hand have as I have just proved again posted some thing which is not correct.

If your posts are here to put me for one off be VERY VERY clear I am NOT put off nor will I go away and I will with the agreement of my friend take this all the way.

YOU said it ben!

 

Hello Is It Me ?

 

From your post, it appeared your question was 'what is a mortgage deed?"

 

In response to your question I said -

 

"However, in response to your question - A mortgage deed is the document that grants the lender a mortgage by legal charge or prior to the LRA 2002 - if the content if that deed refers to the lease - the mortgage deed grants the lender a mortgage by demise."

 

You asked a question and I did answer it.

 

I must apologise for my attempts to provide you and your friend with correct information. I also apologise for repeatedly correcting Apples incorrect interpretations of the law.

 

It would appear that I was wrong to think that the posting of correct information would be more beneficial than the posting of incorrect information. That was my mistake for which I apologise.

 

As you have made an application to the Property Chamber any decision made as a result of a hearing will be a matter of public record and freely obtainable by anyone. So if your application proceeds to a hearing the outcome will more than likely at some point be posted on CAG. In a similar way to other court cases and Adjudicator decisions have been

 

However, it is clear that you only want 'yes men' to contribute to this topic. Therefore, I will await the outcome of the review of Apples document by the Property Chamber.

 

*Disclaimer - If I cease and desist from posting in this thread / topic, it should not be interpreted as giving weight too or validating Apples argument. Indeed, to be clear I consider Apples argument to be legally flawed and will await confirmation of that from the Property Chamber in due course.

Edited July 19, 2013 by bhall

[bhall]

BHALL,

 

I now KNOW that you work for the LENDER and by the post that you have done now confirms it.

I have asked that you do not try and deter people from using this information on this thread if they wish nor to put people right as you put it by only doing your job!

Why do you not stay on your own thread for your thoughts?

 

Apple please do not be mislead by his or her postings as it is a waste of time and ener

 

Just so there is no confusion, I do not work for any lender - be it a bank or other mortgage provider.

 

Is It Me? you asked me not to post and then you asked me a question - which I answered. -

 

It is simple, Is It Me? If you don't want me to post, do not then directly ask me a question (as I am not a yes man and I will not give you answers that are incorrect just to make you feel better), or make comments about me, such as you have about who you think I work for. Personally, if I was you, I would be more focused upon the response due from the Property Chamber, rather than my contributions to this thread.

 

Note: I reserve the right to reply further in this thread, if I am referred too in any future post- including but not limited to any post directed to me by name or any post about me.

Edited July 19, 2013 by bhall

[bhall]

bhall

this is the last time I for one shall reply to your posts, yes I do FULLY believe and state that you work for the lender as you go out of your way to stop or hinder this thread by your posts which give NO help what so ever and I can not find ANY of your posts which do.

I was not looking for a YES person or any one that thinks they have to agree with any thing I say or post but as you do NOT and I repeat NOT give any thing to this tread which is helpful so why not just stop? or are you lonely???

 

Hello Is It Me?

 

As your post is again addressed to me, contains comments about me and contains not one but two questions, directed at me, I refer you to my previous post.

 

Just so there is no confusion, I do not work for any lender - be it a bank or other mortgage provider.

 

Is It Me? you asked me not to post and then you asked me a question - which I answered. -

 

It is simple, Is It Me? If you don't want me to post, do not then directly ask me a question (as I am not a yes man and I will not give you answers that are incorrect just to make you feel better), or make comments about me, such as you have about who you think I work for. Personally, if I was you, I would be more focused upon the response due from the Property Chamber, rather than my contributions to this thread.

 

Note: I reserve the right to reply further in this thread, if I am referred too in any future post- including but not limited to any post directed to me by name or any post about me.

 

Need I say more

 

Good Luck

 

Ben

[bhall]

Hopefully, Is It Me? will accept this post as it is intended by me, as a helpful post about assertions made in relation to s.23 of the LRA 2002. If Is It Me? is unable to accept the post as intended, please let me know and I will delete the content.

 

Post deleted as per above

Edited August 9, 2013 by bhall

[bhall]

bhall you appear to be confusing terms "debt secured by the registered charge" (a... thing....object) is not equivalent to "payment of money indebtedness secured by the registered charge" (a process). "power to charge at law with the payment of money indebtedness secured by the registered charge" describes the actions of a 'payer' not a 'payee'.

 

Sorry disagree.

 

Maybe I am mistaken but doesn't the owner of the registered estate have the power to create the charge (power to charge at law) with the payment of indebtness (the borrower is the one creating the charge and is the one with liability (payment of money indebtness), he is the one indebted to the Lender and this 'indebtness' is secured for the Lender by the registered charge the Borrower (Owner) creates by way of Deed.

 

To support my previous comments in relation to s.23 -

 

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.

 

(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.

 

 

http://www.practicalconveyancing.co.uk/content/view/7808/0/

 

Background:

 

A sub-mortgage is a mortgage of a mortgage. For example, A borrows £10,000 from B and mortgages his house to B as security for the loan. B then needs to borrow £1,000. B borrows the money from C and then mortgages the asset he has i.e. the mortgage of A’s house, to C as security for the loan.......

 

........Under the LRA 2002, the owner of a registered estate cannot create a mortgage by demise or sub-demise (section 23(1)(a)). The only way to create a legal mortgage is by a charge by way of legal mortgage (pursuant to sections 85(1) and 86(1) of the LPA 1925) or by charging the estate at law with the payment of money (section 23(1)(b) of the LRA 2002). When registered, a charge has effect, if it would not otherwise do so, as a charge by deed by way of legal mortgage (section 51 - equivalent to section 27(1) of the LRA 1925).

 

The proprietor of a registered charge cannot create a "legal sub-mortgage" i.e. a transfer by way of mortgage, a sub-mortgage by sub-demise or a charge by way of legal mortgage (sections 23(2)(a) and 23(3)). The proprietor does have the power to "charge at law with the payment of money indebtedness secured by the registered charge" (section 23(2)(b)). The registered proprietor of a subcharge has, in relation to the property subject to the principal charge, the same powers as the principal chargee (section 53).

 

If the provisions of the LRA 2002 had applied in this case, it is submitted that the principal mortgagee would still have had the right to take possession of the property because a registered principal charge will continue to operate as if the mortgagee had a term of years (pursuant to section 51 of the LRA 2002 and section 87(1) of the LPA 1925). On the assumption that the sub-charge was created pursuant to section 23(2)(b) of the LRA 2002, the sub-chargee will not be deemed to have a term of years under the LPA 1925. However, the subchargee should nevertheless have a right to possession of the property under section 53 of the LRA 2002.

 

As confirmed by the Charges register the proprietor of the registered charge is the lender and not the borrower.

 

s.23 (1) applies to the powers of the borrower as the owner of the legal estate and

s.23 (2) apples to the powers of the lender as the owner of the charge

 

A borrower can by law grant a charge by legal mortgage

 

If Is It Me? does not appreciate or welcome the clarification provided above, please let me know and as before I will delete my post.

Edited August 9, 2013 by bhall

[bhall]

I hope the following (I am sorry to say long post) is of help to IS IT ME? and to the other contributors / readers of this thread. I apologise in advance if the posting of the correct legal status of a legal mortgage is considered to be a distraction by anyone

 

Hi UNRAM/WP/Is It Me...

 

I am conscious that you guys have more or less concluded the understanding for yourselves and I would just like to add to your knowledge further, to be sure we are all on the same page...so’s to speak.......by saying:

 

When you sign the deed, you DO grant a mortgage by demise...the words/term used to grant a mortgage by demise are “legal mortgage” (the deed says ‘charge by way of “legal mortgage”)

“legal mortgage” is defined in the LPA 1925 s. (xvi) as: “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage

 

Like I said....and I' sure you guys are by now aware...the Borrower has no power to create a 'legal mortgage; because to do so would be to be the same as granting a 'mortgage by demise'

 

Apple

 

From the above -

 

“legal mortgage” is defined in the LPA 1925 s. (xvi) as: “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage

 

The word or in the extract highlighted in red, would appear to have been overlooked.

 

http://www.legislation.gov.uk/ukpga/Geo5/15-16/20/section/205

 

s.205 of the LPA 1925 states:

 

“Mortgage” includes any charge or lien on any property for securing money or money’s worth; “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage

 

A legal mortgage, if the above is not clear meant

 

1) a mortgage by demise or

2) a mortgage by subdemise or

3) a charge by way of legal mortgage

 

A legal mortgage could have been any one of the three different types of legal mortgage.

 

They are after all different. A deed that grants a mortgage by demise, is worded differently to a deed that grants a charge by legal mortgage (as explained below)

 

The deed in dispute, as I understand clearly confirms that it does not grant either a mortgage by demise or a mortgage by subdemise but it states that it grants a charge by legal mortgage. This in itself confirms that the deed does not grant either a mortgage by demise or a mortgage by subdemise.

 

A borrower could prior to the LRA 2002 grant either a mortgage by demise, a mortgage by subdemise or a charge by way of legal mortgage.

 

The implementation of the LRA 2002 only made one change to the above (as confirmed below)

 

s.23 (1a) made it no longer possible for a borrower to grant a mortgage by either demise or subdemise, meaning it is now only possible (if the land is registered) for the borrower to grant a charge by way of legal mortgage.

 

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

 

The explanatory notes for s.23 of the LRA 2002 state -

 

"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."

 

Least we not forget s.87 of the LPA 1925 which has not been repealed by the LRA 2002 -

 

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

 

87 Charges by way of legal mortgage.

 

(1)Where a legal mortgage of land is created by a charge by deed expressed to be by way of legal mortgage, the mortgagee shall have the same protection, powers and remedies.(including the right to take proceedings to obtain possession from the occupiers and the persons in receipt of rents and profits, or any of them) as if—

 

(a)where the mortgage is a mortgage of an estate in fee simple, a mortgage term for three thousand years without impeachment of waste had been thereby created in favour of the mortgagee; and

 

(b)where the mortgage is a mortgage of a term of years absolute, a sub-term less by one day than the term vested in the mortgagor had been thereby created in favour of the mortgagee.

 

The LRA 2002 only abolished mortgages by demise or by sub demise - It did not abolish a charge by legal mortgage.

 

This may help to explain the difference between a mortgage by demise and a mortgage by legal charge -

 

http://www.101mortgage.co.uk/mortgage-by-legal-charge/

 

Mortgage by legal charge

 

In a mortgage by legal charge, the debtor remains the legal owner of the property, but the creditor gains sufficient rights over it to enable them to enforce their security, for instance by taking possession of the property or selling it......

 

...This type of mortgage has been the usual form of mortgage in England and Wales since 1925 and, under the Land Registration Act 2002, is now the only form permitted by law....

 

Mortgage by demise

 

In a mortgage by demise, the creditor owns the mortgaged property until the loan is repaid in full (“redeemed”). This kind of mortgage takes the form of a conveyance of the property to the creditor, with a condition that the property will be returned on redemption.

 

This older form of legal mortgage has been less common than a mortgage by legal charge in recent years and under the Land Registration Act 2002 is no longer available in the UK.

 

This may also help

 

https://www.lexisnexis.com/uk/lexispsl/property/document/393788/55KG-P261-F18C-4073/Creation%20and%20priority%20of%20mortgages%E2%80%94overview

"The legal charge (also known as a charge by way of legal mortgage) is now the only effective way of mortgaging land."

 

If not, may be something from the Government might help -

 

www.parliament.uk/briefing-papers/SN04837.pdf

 

1. A legal charge is the means by which lenders enforce their rights to a property
   
2. A primary mortgage will normally be secured by a registered first charge against the property
   
3. A charge secured on land (whether a first or second charge) can only be created by deed expressed to be by way of legal mortgage
   

This may also help to confirm the obvious

 

http://2getcredit.com/mortgage.html

 

Mortgage by demise

 

In a mortgage by demise, the mortgagee (the lender) becomes the owner of the mortgaged property until the loan is repaid or other mortgage obligation fulfilled in full, a process known as "redemption". This kind of mortgage takes the form of a conveyance of the property to the creditor, with a condition that the property will be returned on redemption.

 

Mortgages by demise were the original form of mortgage, and continue to be used in many jurisdictions, and in a small minority of states in the United States. Many other common law jurisdictions have either abolished or minimised the use of the mortgage by demise. For example, in England and Wales this type of mortgage is no longer available, by virtue of the Land Registration Act 2002.

 

Mortgage by legal charge

 

In a mortgage by legal charge or technically "a charge by deed expressed to be by way of legal mortgage", the debtor remains the legal owner of the property, but the creditor gains sufficient rights over it to enable them to enforce their security, such as a right to take possession of the property or sell it.

 

To protect the lender, a mortgage by legal charge is usually recorded in a public register. Since mortgage debt is often the largest debt owed by the debtor, banks and other mortgage lenders run title searches of the real estate property to make certain that there are no mortgages already registered on the debtor's property which might have higher priority. Tax liens, in some cases, will come ahead of mortgages. For this reason, if a borrower has delinquent property taxes, the bank will often pay them to prevent the lienholder from foreclosing and wiping out the mortgage.

 

This type of mortgage is most common in the United States and, since the Law of Property Act 1925, it has been the usual form of mortgage in England and Wales (it is now the only form – see above).

 

We must not also forget s.51 of the LRA 2002 -

 

http://www.legislation.gov.uk/ukpga/2002/9/section/51

 

51 Effect of completion by registration

 

On completion of the relevant registration requirements, a charge created by means of a registrable disposition of a registered estate has effect, if it would not otherwise do so, as a charge by deed by way of legal mortgage.

 

http://www.legislation.gov.uk/ukpga/2002/9/section/27

 

27 Dispositions required to be registered

 

(2)In the case of a registered estate, the following are the dispositions which are required to be completed by registration—

 

(f)the grant of a legal charge.

 

s.27 and s.51 of the LRA 2002 confirm that the granting of charge when registered takes effect as a a charge by deed by way of legal mortgage.

 

Any search of Google or even Apple's favorite source wikipedia will prove that a borrower can grant a charge by legal mortgage.

 

The charge by legal mortgage was introduced by the LPA 1925 and following the LRA 2002 making a mortgage by demise obsolete, is now the only (for registered land) type of legal mortgage remaining.

 

 

For the sake of your friends home IS IT ME? please make contact with Ell-en or other members of the site team with real knowledge and experience of possession proceedings.

 

Ben

 

 

 

‎

Edited August 12, 2013 by bhall

[bhall]

To support my previous comments in relation to s.23 -

 

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.

 

(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.

 

 

http://www.practicalconveyancing.co.uk/content/view/7808/0/

 

Background:

 

A sub-mortgage is a mortgage of a mortgage. For example, A borrows £10,000 from B and mortgages his house to B as security for the loan. B then needs to borrow £1,000. B borrows the money from C and then mortgages the asset he has i.e. the mortgage of A’s house, to C as security for the loan.......

 

........Under the LRA 2002, the owner of a registered estate cannot create a mortgage by demise or sub-demise (section 23(1)(a)). The only way to create a legal mortgage is by a charge by way of legal mortgage (pursuant to sections 85(1) and 86(1) of the LPA 1925) or by charging the estate at law with the payment of money (section 23(1)(b) of the LRA 2002). When registered, a charge has effect, if it would not otherwise do so, as a charge by deed by way of legal mortgage (section 51 - equivalent to section 27(1) of the LRA 1925).

 

The proprietor of a registered charge cannot create a "legal sub-mortgage" i.e. a transfer by way of mortgage, a sub-mortgage by sub-demise or a charge by way of legal mortgage (sections 23(2)(a) and 23(3)). The proprietor does have the power to "charge at law with the payment of money indebtedness secured by the registered charge" (section 23(2)(b)). The registered proprietor of a subcharge has, in relation to the property subject to the principal charge, the same powers as the principal chargee (section 53).

 

If the provisions of the LRA 2002 had applied in this case, it is submitted that the principal mortgagee would still have had the right to take possession of the property because a registered principal charge will continue to operate as if the mortgagee had a term of years (pursuant to section 51 of the LRA 2002 and section 87(1) of the LPA 1925). On the assumption that the sub-charge was created pursuant to section 23(2)(b) of the LRA 2002, the sub-chargee will not be deemed to have a term of years under the LPA 1925. However, the subchargee should nevertheless have a right to possession of the property under section 53 of the LRA 2002.

 

As confirmed by the Charges register the proprietor of the registered charge is the lender and not the borrower.

 

s.23 (1) applies to the powers of the borrower as the owner of the legal estate and

s.23 (2) apples to the powers of the lender as the owner of the charge

 

A borrower can by law grant a charge by legal mortgage

 

If Is It Me? does not appreciate or welcome the clarification provided above, please let me know and as before I will delete my post.

 

To further evidence that s.23 (2) of the LRA 2002, applies to the owner of the registered charge (the lender) - I refer to an extract from Lords Hansard. The following is a record of discussions in the Lords Chamber about amendments to the LRA 2002 before it became law

 

http://www.publications.parliament.uk/pa/ld200102/ldhansrd/vo011030/text/11030-13.htm

 

"Amendment No. 27 deals with a related matter. Clause 23(2) lists the powers that an owner of a registered charge has to deal with that charge, which will no longer include the possibility of creating a mortgage by demise or sub-demise. The appropriate way of securing a mortgage over registered land is to create a charge. The Bill also simplifies the powers of the chargee to deal with his charge. After the Bill comes into force, the appropriate way to do that will be by way of sub-charge. The amendment would allow the chargee to create a charge by way of a legal mortgage over the charge as well by way of a sub-charge. That would add an unnecessary complication."

 

From the above:

 

23(2) lists the powers that an owner of a registered charge has to deal with that charge.

 

The Bill also simplifies the powers of the chargee to deal with his charge.

 

As can be shown by the land registry documentation the owner of the registered charge / the chargee is the lender.

 

 

 

Is It Me? Have you discussed possible defences to the lenders possession claim with Ell-en ? If not, it may be in your best interest too.

Edited August 12, 2013 by bhall

[bhall]

Before being too quick to dismiss the information, I have previously posted may I suggest that you read 'The Law of Real Property By Robert Megarry, Charles Harpum, William Wade' - page 175 from part 3 onwards - more specifically from

"The scope of the owner's powers depends upon whether the owner is the proprietor of the registered proprietor of a registered estate or of a registered charge."

 

I feel the need to again draw attention to the use of the word or - meaning one or the other :-)This book goes on to detail, as I have previously in this thread, the powers of the owner of the estate and the powers of the owner of the charge.

 

If you continue to read the section in the book, you will also see that it states:

 

"(iii) Under the Law Registration Act 2002, the only way in which a legal chargee can create a sub-charge (in other words over the indebtedness secured by the legal charge) is to charge that indebtedness with the payment of the money."

 

As it is the borrower that grants the charge to the lender, the borrower is the chargor and the lender is the chargee.

 

The question of what is a sub-charge is also being overlooked. A sub-charge as previously posted is a mortgage of a mortgage.

 

http://www.practicalconveyancing.co.uk/content/view/7808/0/

 

"A sub-mortgage is a mortgage of a mortgage. For example, A borrows £10,000 from B and mortgages his house to B as security for the loan. B then needs to borrow £1,000. B borrows the money from C and then mortgages the asset he has i.e. the mortgage of A’s house, to C as security for the loan."

A sub mortgage is (or least was) a charge granted by the lender to a 3rd party. How can a borrower, grant a charge on a charge it has already given to the lender ?

 

and as previously posted -

 

The proprietor of a registered charge cannot create a "legal sub-mortgage" i.e. a transfer by way of mortgage, a sub-mortgage by sub-demise or a charge by way of legal mortgage (sections 23(2)(a) and 23(3)). The proprietor does have the power to "charge at law with the payment of money indebtedness secured by the registered charge" (section 23(2)(b)). The registered proprietor of a subcharge has, in relation to the property subject to the principal charge, the same powers as the principal chargee (section 53).

 

If the provisions of the LRA 2002 had applied in this case, it is submitted that the principal mortgagee would still have had the right to take possession of the property because a registered principal charge will continue to operate as if the mortgagee had a term of years (pursuant to section 51 of the LRA 2002 and section 87(1) of the LPA 1925). On the assumption that the sub-charge was created pursuant to section 23(2)(b) of the LRA 2002, the sub-chargee will not be deemed to have a term of years under the LPA 1925. However, the subchargee should nevertheless have a right to possession of the property under section 53 of the LRA 2002.

 

I have posted 3rd party sources that both evidence, support and prove the points I am making in relation to a charge by legal mortgage etc. Therefore, it would be misleading to imply that it is just bhall telling anyone anything, when I have provided independent 3rd party sources.

Edited August 12, 2013 by bhall