Repossession questioned by deeds not being signed

[applecart]

But Apple section 53 does apply, this is industry wide excepted practice and all the authority says it does, why would a court believe that a deed came under the auspices of section 40 ?

 

Why do you say section 53 applies Dodge?

 

A court should not think that a s.40 supports any unilateral deed as a speciality contract necessary to create a legal relationship ...s.40 was repealed and superceded by LPMPA s.2 ; )

 

LPMPA s.2 (3) says 'each' party must sign it.

 

So if the new law in relation to speciality contracts makes it a statutory duty to sign the deed - how on earth have lenders relied that they have a legal relationship when s.40 was repealed - and do they rely that section 53 applies?

 

Where's the legal relationship??

 

Just asking you understand - the application does not rely on s.2

 

Apple

[Peterbard]

I wonder how you came to your conclusion that there is no issue with the lenders duty to sign the deed.

 

This thread with over 4,000 posts says there is definitely an issue ; )

 

I think you will find that the 'contrary intent' - is that the LAW says he must sign it. s.40 of the LPMPA 1989 was repealed - see LPMPA 1989 s.2 (8) for confirmation.

 

I think I understand where you are coming from though - it does take time to get up to speed

 

Apple

 

When I say there is no issue relating to a lender having to sign , I mean no authority. I have seen lots of speculation and conjecture but nothing that even whiffs of authoritative support.

 

If you have some I would love to see it, if it stands up I will revise my opinion.

 

Also you have not answered my question as to why a court would consider a deed as being under a defunct section of the LOPA.

[Peterbard]

Why do you say section 53 applies Dodge?

 

A court should not think that a s.40 supports any unilateral deed as a speciality contract necessary to create a legal relationship ...s.40 was repealed and superceded by LPMPA s.2 ; )

 

LPMPA s.2 (3) says 'each' party must sign it.

 

So if the new law in relation to speciality contracts makes it a statutory duty to sign the deed - how on earth have lenders relied that they have a legal relationship when s.40 was repealed - and do they rely that section 53 applies?

 

Where's the legal relationship??

 

Just asking you understand - the application does not rely on s.2

 

Apple

Read the authority three or for posts back then look at all the cases mentioned on here

[Peterbard]

You seem to hop from idea to idea, without any reference to the framework of statute or common law.

 

I have difficulty in taking your ideas seriously if they are not supported by one of these, I am sure a court would feel the same.

[applecart]

When I say there is no issue relating to a lender having to sign , I mean no authority. I have seen lots of speculation and conjecture but nothing that even whiffs of authoritative support.

 

If you have some I would love to see it, if it stands up I will revise my opinion.

 

Also you have not answered my question as to why a court would consider a deed as being under a defunct section of the LOPA.

 

You've lost me here Dodge...

 

Let me see if I understand you correctly...before I look to answer you directly.....are you saying that because there is no 'authority' that says a 'lender' has to sign the deed - then on that you base your assertion that he does not have to?

 

Or.... are you saying nobody who lends anybody money and looks to secure the loan by deed has to sign it?

 

(all I've done is taken the word 'lender' out of the equation here BTW)

 

Apple

[Peterbard]

I think I am saying that there is nothing anywhere that states the lender has to sign, and there are specific instances which categorically state he does not.

 

Then on the other hand there is your theory.

 

Sorry apple, you can see my problem in taking you seriously

[applecart]

You seem to hop from idea to idea, without any reference to the framework of statute or common law.

 

I have difficulty in taking your ideas seriously if they are not supported by one of these, I am sure a court would feel the same.

 

Does this assurance you speak of mean that a court is more likely to take me seriously if I remove the word 'lender' out of the contention Dodge? and let's say, I stay focused and I only talk about the deed instead of hopping from 'idea to idea'.......

 

Do you think a Judge would take me seriously then..... and lets say I frame the argument on statute and common law .....

 

Do you think he will take my 'ideas' seriously then Dodge?

 

Apple

[Peterbard]

Does this assurance you speak of mean that a court is more likely to take me seriously if I remove the word 'lender' out of the contention Dodge? and let's say, I stay focused and I only talk about the deed instead of hopping from 'idea to idea'.......

 

Do you think a Judge would take me seriously then..... and lets say I frame the argument on statute and common law .....

 

Do you think he will take my 'ideas' seriously then Dodge?

 

Apple

 

I think the court would take you seriously Apple, if you presented an argument supported by either statute or common law. preferably both.

 

I am not sure about the focus thing as you seem to be directing your attention to misconceptions, not much use focusing on thees.

 

All you have to do Apple is post one piece of authority which supports your idea, ben has posted what must be hundreds which disprove them, surely you can manage one.

[applecart]

I think I am saying that there is nothing anywhere that states the lender has to sign, and there are specific instances which categorically state he does not.

 

Then on the other hand there is your theory.

 

Sorry apple, you can see my problem in taking you seriously

 

You appear to take this thread seriously though..... I've asked a serious question....

 

if I take the word 'lender' out of the equation and say the deed must be signed by both parties if they want to secure the loan against property in the UK - does it or does it not mean that the person owed the money must sign the deed??

 

I don't think it is me you have problems taking seriously Dodge - I'm beginning to think you don't know what you are talking about really do you?

 

You can't even answer my simple question ..... or would answering my question cause you to have to admit that when the word 'lender' is removed - the deed MUST be signed by both parties

 

 

Apple

[applecart]

I think the court would take you seriously Apple, if you presented an argument supported by either statute or common law. preferably both.

 

I am not sure about the focus thing as you seem to be directing your attention to misconceptions, not much use focusing on thees.

 

All you have to do Apple is post one piece of authority which supports your idea, ben has posted what must be hundreds which disprove them, surely you can manage one.

 

Dodge ; )

 

take the word 'lender' out of the question - then tell me - does the deed have to be signed by the person owed the money if they want to secure it on any property in the UK?

 

simple question...it's either 'yes' or 'no'??

 

Apple

[Peterbard]

if I take the word 'lender' out of the equation and say the deed must be signed by both parties if they want to secure the loan against property in the UK - does it or does it not mean that the person owed the money must sign the deed??

 

I don't think it is me you have problems taking seriously Dodge - I'm beginning to think you don't know what you are talking about really do you?

 

You can't even answer my simple question ..... or would answering my question cause you to have to admit that when the word 'lender' is removed - the deed MUST be signed by both parties

 

 

Apple

 

If you took the word lender out of the equation, then it would be something else Apple.

 

As for the insults, water off a duck back to me. i have a purely pragmatic view to law, show me the evidence or be quiet really.

[applecart]

Hey DB: Quick question. What are your views on equitable mortgages? My understanding is that, even if a legal mortgage was not possible for a paperowkr issue, the courts will just allow the mortgage to be created as an equitable instrument instead. Thoughts?[/QUOT]

 

No expert on mortgages Seq.

 

I have heard of thees though, but i thought that they were no longer legall as the LRA 2002 states that all mortgages must now be registered and by way of a charge. (could be wrong in this though)

 

Was the above not one of your most recent posts Dodge?

 

Could this be the reason you are struggling to answer one of more simpler questions?

 

Don't worry ..... I do understand why you can't answer ; )

 

Apple

[Ell-enn]

I might be being a little simplistic here - but if the judge asks "how did you come to buy the property? did you receive money to purchase it from a lender and sign an agreement to pay the borrowed money back?

 

 

Surely it can't be thought that telling the judge "yes we borrowed the money but there's a bit of paper we think isn't right" will result in the judge saying Oh, OK then you don't have to pay the money back - ergo you have a house for free??

[bhall]

Dodge ; )

 

take the word 'lender' out of the question - then tell me - does the deed have to be signed by the person owed the money if they want to secure it on any property in the UK?

 

simple question...it's either 'yes' or 'no'??

 

Apple

 

 

I will answer the question - The answer is no

[Peterbard]

 

Was the above not one of your most recent posts Dodge?

 

Could this be the reason you are struggling to answer one of more simpler questions?

 

Don't worry ..... I do understand why you can't answer ; )

 

Apple

 

Nope don't pretend to be an expert Apple

[bhall]

I think for this part, we need to look at the actual legislation –

 

Firstly Schedule 2, Article 10(2) of the Regulatory Reform (Execution of Documents and Deeds) Order 2005

 

http://www.legislation.gov.uk/uksi/2005/1906/schedule/2/made

 

1989 c. 34. The Law of Property (Miscellaneous Provisions) Act 1989.

 

In section 1—

 

(a) in subsection (3)(b), the words from “by him” to the end;

(b) in subsection (5), the words “involving the disposition or creation of an interest in land”; and

© in subsection (6), the definition of “interest in land” and the word “and” preceding it.

 

Secondly, we need to look at s.1(3)(b) of the LP (MP) A 1989 – before and after it was amended.

 

Before

 

(3)An instrument is validly executed as a deed by an individual if, and only if—

 

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

 

After

 

(3) An instrument is validly executed as a deed by an individual if, and only if:

 

(b) it is delivered as a deed.

 

It is asserted by the application to the Property Chamber that the repeal of the words “by him or a person authorised to do so on his behalf” – have created a new obligation upon a lender to sign a mortgage deed.

 

However, if we look at both s.1(2) and (3) as amended by the RRO 2005, a very different picture emerges –

 

 

“(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:

 

(i) by that person or a person authorised to execute it in the name or on behalf of that person, or

 

(ii) by one or more of those parties or a person authorised to execute it in the name or on behalf of one or more of those parties

 

(2A) For the purposes of subsection (2)(a) above, an instrument shall not be taken to make it clear on its face that it is intended to be a deed merely because it is executed under seal.

 

(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.”

 

If we use a mortgage deed as an example s.1(2) as amended confirms that

 

(a) A mortgage deed is not a mortgage deed unless it makes it clear on its face that it is intended to be a deed - it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise) – If we look at the Accord Mortgage Deed – we can see that it does make it clear on its face that it is a deed.

(b) (i) It is validity executed as a deed by the person making it– s.1(3) details the requirements for a valid execution of a deed – I will return to that topic in a moment.

 

So s.1(2) confirms that a deed must be validly executed by the person making it – It is the borrowers deed, as the borrower is granting a legal charge to the lender – so it must be validly executed by the borrower.

 

s.1(3) explains what the borrower as the person who is required to validly execute a deed must do.

It must be signed by him in the presence of a witness who must attest the signature and it must be delivered.

 

If delivery as asserted by the application to the property chamber is a statutory implied obligation on the Lender – Why does statue include delivery, as part of what is required by the borrower to validly execute the deed – resulting from the statutory requirements to make an instrument a deed ?

 

Clearly, the statutory obligation of delivery is that of the borrower and not that of the lender.

[bhall]

On the topic of the application to the chamber...

 

“It is submitted that the applicant had no legal power to create a mortgage by demise, and had no intent to do so. It is understood that the creation of a mortgage by demise is evinced when a deed of conveyance, is signed by the Borrower alone, the legal effect of which would cause the creditor to be the owner of the estate/property until the mortgage debt was repaid in full and would be in breach of the LRA 2002 s.23 (1). [only state ‘sub-demise’ if your registered estate is leasehold] It is the case, that once the deed had been signed by the applicant, it was sent by post to the firm of solicitors. The applicant received confirmation from the solicitor that the mortgage had completed. The applicant had no reason to disbelieve the solicitor or to think that HMLR would have registered a charge if the charge did not convey any other than a registrable disposition within the substantiating law.”

Firstly, references to mortgage by demise are incorrect. The borrower (in this case Is It me?’s friend) did not grant a mortgage by demise – Is It Me?’s friend actually granted a charge by legal mortgage.

 

This can be confirmed by any reading of the Accord Mortgage Deed – 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 Borrower, (except monies payable under any agreement whenever made which expressly provides that they are not to be secured by this mortgage)”

 

Please note – “ charges the property by way of legal mortgage”

 

As confirmed by the Law Commission report, previously posted and s.205 of the LPA 1925, a mortgage by demise and a mortgage by legal charge are two types of mortgage.

 

The wording of the deed, confirms that it grants a charge by way of legal mortgage – it makes no reference to a grant of a demise.

[Peterbard]

I might be being a little simplistic here - but if the judge asks "how did you come to buy the property? did you receive money to purchase it from a lender and sign an agreement to pay the borrowed money back?

 

 

Surely it can't be thought that telling the judge "yes we borrowed the money but there's a bit of paper we think isn't right" will result in the judge saying Oh, OK then you don't have to pay the money back - ergo you have a house for free??

 

Yes but that is more about the agreement for the loan. The deed or the charge is about the security, on a mortgage the borrower agrees to transfer title of his land in order to secure the loan. This is why it is really a unilateral decision.

[bhall]

The application also asserts -

 

“It is submitted that contrary to a mortgage by demise, a charge by way of legal mortgage is evinced when the borrower remains the owner of the estate. The means of any lender meeting this implied statutory obligation is by way of the lender executing the deed to confirm its intent to be obligated to do so.”

 

To be honest, this does not make any sense. – It seems to argue that for the borrower to remain the owner of the estate, the lender must sign the deed (based on a unspecified implied statutory obligation) – This would therefore imply that by the lender not signing the deed, ownership is transferred to the lender ? – I don’t know where this came from.

[Peterbard]

You see Apple this is authority

[bhall]

Th application also asserts -

 

 

“It is submitted that a deed must be ‘valid’, for that; it must comply with the LP(MP) Act 1989 section 1 (2); therefore, for it’s validity a deed must be ‘signed’ by the applicant pursuant to the LP(MP)Act 1989 s. 1 (3) but also; ‘executed’ by the lender pursuant to the LPA 1925 section 74 (5) before it can be said that the deed is validly executed. In this case, on its face the deed in evidence is not a valid deed to convey bilateral obligations as intended by statute.”

 

As we already know s.1(2) states –

 

“(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:

 

(i) by that person or a person authorised to execute it in the name or on behalf of that person, or

 

(ii) by one or more of those parties or a person authorised to execute it in the name or on behalf of one or more of those parties

 

(2A) For the purposes of subsection (2)(a) above, an instrument shall not be taken to make it clear on its face that it is intended to be a deed merely because it is executed under seal.”

 

Now s.74 (5) of the LPA 1925 states –

 

“The foregoing provisions of this section apply to transactions wherever effected, but only to deeds and instruments executed after the commencement of this Act, except that, in the case of powers or appointments of an agent or officer, they apply whether the power was conferred or the appointment was made before or after the commencement of this Act or by this Act.”

 

As we have already established s.1 of the LP (MP) A 1989 as amended by the RRO 2005 – confirms that delivery related to the valid execution of a deed, by the person making it –

[applecart]

If you took the word lender out of the equation, then it would be something else Apple.

 

As for the insults, water off a duck back to me. i have a purely pragmatic view to law, show me the evidence or be quiet really.

 

Your being pedantic now ; )

 

No intent to 'insult' Dodge - apologies if it came across that way - I've yet to master the genteel art of the written word. I'm working on it though.

 

You assert that there is no evidence that a deed is signed by a 'lender' - I merely sought to point out that anyone can be a 'lender' - wouldn't you agree?

 

Then - if we take for granted that there was a 'lender' in the 'garguillo' decision...... then that 'lender' did sign the deed Dodge...... even though that 'lender' signed the deed..... the deed was void.

 

There was a lender in 'bibby'......that lender signed the deed Dodge......the deed was void.

 

We are finding that the 'lender' does not sign the deed ..... but says his deed is valid.......???

 

Strange don't you think???

 

Apple

[bhall]

From the submission to the chamber

 

“It is submitted that a deed must be ‘delivered’, as aforesaid there is no longer any presumption of delivery on sight of a borrowers signature alone, therefore the onus was on the lender to execute the deed before the presumption of delivery can legally be said to have been effected. In this case, on its face the deed in evidence confirms that the lender failed to comply with the LPA 1925 section 74A (1) and (2), so that in this case, the Deed stands as one registered prior to ‘delivery’.”

 

s.74a states –

 

74AExecution of instrument as a deed

 

(1)An instrument is validly executed by a corporation aggregate as a deed for the purposes of section 1(2)(b) of the Law of Property (MiscellaneousProvisions) Act 1989, if and only if—

 

(a)it is duly executed by the corporation, and

 

(b)it is delivered as a deed.

 

(2)An instrument shall be presumed to be delivered for the purposes of subsection (1)(b) of this section upon its being executed, unless a contrary intention is proved

 

As we already know, s.1(2)(b) relates to the person that made the deed – Therefore, s.74(a) relates to when a corporation aggregate is the person (legal person rather than human being) is the maker of the deed – in otherwords when a company is the grantor and not in the case of a mortgage deed the grantee

 

When an individual is the grantor of a deed, the statutory delivery requirement is for the individual to deliver the deed – When a Corporation Aggregate is the grantor of the deed, the statutory delivery requirement is for the company to deliver the deed.

 

Nowhere within s.74(a) does it state or even imply that there is a requirement for the deed to be signed by both the individual (borrower) and the corporation aggregate (the lender)

[bhall]

Your being pedantic now ; )

 

No intent to 'insult' Dodge - apologies if it came across that way - I've yet to master the genteel art of the written word. I'm working on it though.

 

You assert that there is no evidence that a deed is signed by a 'lender' - I merely sought to point out that anyone can be a 'lender' - wouldn't you agree?

 

Then - if we take for granted that there was a 'lender' in the 'garguillo' decision...... then that 'lender' did sign the deed Dodge...... even though that 'lender' signed the deed..... the deed was void.

 

There was a lender in 'bibby'......that lender signed the deed Dodge......the deed was void.

 

We are finding that the 'lender' does not sign the deed ..... but says his deed is valid.......???

 

Strange don't you think???

 

Apple

 

 

And why was the deed void ????

 

In Bibby, the two directors were under the belief that clean versions of the documents incorporating their manuscript changes would be circulated and signed afresh. Therefore there was no intention by them to be bound by these deeds.

 

In regard to mortgage deeds, the actual mortgage deed itself (if we use the accord deed as an example) includes the signature section and there is no expectation by the borrower that the mortgage deed they sign is nothing but the actual mortgage deed, used to grant a charge. When you sign the mortgage deed, unlike in Bibby, you don’t expect amendments to be made to it

 

Bibby much like Garguilo is irrelevant to question of is a mortgage deed void if it has not been signed by the lender.

[applecart]

I might be being a little simplistic here - but if the judge asks "how did you come to buy the property? did you receive money to purchase it from a lender and sign an agreement to pay the borrowed money back?

 

 

Surely it can't be thought that telling the judge "yes we borrowed the money but there's a bit of paper we think isn't right" will result in the judge saying Oh, OK then you don't have to pay the money back - ergo you have a house for free??

 

Yes, It would be an odd state of affairs if that were to happen.

 

There must be something the lender can do.

 

Apple