Repossession questioned by deeds not being signed

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Is what I need to send as Exibit A?

 

Trustee Delegation Act 1999

 

1999 CHAPTER 15

 

 

Introduction

 

1.These explanatory notes relate to the Trustee Delegation Act 1999 which received Royal Assent on 15 July 1999. They have been prepared by the Lord Chancellor’s Department in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

3.Annex A sets out the text of Powers of Attorney Act 1971 s 10 as amended by the Act. A glossary of technical terms used in these notes is provided at Annex B.

Summary

 

4.The Act implements, with minor modifications, the changes to the law recommended by the Law Commission in its report The Law of Trusts: Delegation by Individual Trustees (1994) Law Com No 220.

5.The sections of the Act may conveniently be divided into five groups.

• Sections 1 - 4 create an exception to the general rule that the exercise of trustee functions may not be delegated.
  
• Sections 5 - 6 amend the general statutory conditions on which a trustee may delegate the exercise of his or her trustee functions and provide for the creation of a statutory form of power of attorney for use by a trustee.
  
• Sections 7 - 9 prevent the rules of law which require capital monies to be paid to at least two trustees from being circumvented by use of a power of attorney and make provision relating to registered enduring powers of attorney.
  
• Section 10 creates a rule of interpretation that an attorney’s authority to do an act in relation to land includes authority to do that act in relation to any estate or interest in the land.
  
• Sections 11 - 13 deal with commencement and other supplementary matters.
  

Background

 

6.The primary responsibility of trustees has traditionally been to hold property on behalf of the beneficiaries under the trust. The trustee must safeguard the property and deal with it in the best interests of the beneficiaries. It is a general rule of trust law that trustees, having voluntarily agreed to act as such, cannot delegate the exercise of their powers and duties. The rule is subject to the following exceptions:

• if the instrument establishing the trust specifically authorises delegation;
  
• if delegation is permitted by all the beneficiaries (for this exception to apply, all the beneficiaries must be both mentally capable and at least eighteen years old);
  
• if delegation is permitted under section 25 of the Trustee Act 1925 or section 3(3) of the Enduring Powers of Attorney Act 1985.
  

7.Following criticism of section 3(3) the Law Commission was asked to consider the operation of the present law. It issued a consultation paper The Law of Trusts: Delegation by Individual Trustees CP No 118 in 1991. The response to the paper supported the Commission’s provisional conclusion that section 3(3) was inappropriate for delegation by trustees in general but that special provision should be made for co-owners of land who are trustees. In 1994 the Law Commission published its report The Law of Trusts: Delegation by Individual Trustees Law Com No 220. In the report the Law Commission concluded that in relation to delegation by individual trustees generally the conditions imposed by section 25 of the Trustee Act 1925 were, subject to certain minor changes, appropriate but that section 3(3) was inappropriate. The Law Commission also concluded that some relaxation of the rules, designed to address the needs of beneficial co-owners of land, was justified.

THE Act

 

8.The Act has thirteen sections and a repeal Schedule. The Act relates only to England and Wales.

Commentary on Sections

 

9.Section 1 creates a new statutory exception to the general rule that a trustee must exercise in person the functions vested in him or her as a trustee. The effect of the exception is that, where a power of attorney authorises a donee to act on behalf of the donor in relation to property of the relevant kind, the donee is not prevented from acting by the rule that the donor must exercise trustee functions in person.

10.The provision is of particular benefit to co-owners of land. First, it enables co-owners to delegate without having to comply with the restrictions which apply where trustees hold land only for third parties. The need for this special rule for co-owners of land arises because the 1925 property legislation requires land owned by more than one person to be held on trust. The result is that co-owners of land are, whether they appreciate it or not, trustees of a freehold or leasehold estate in land irrespective of whether they hold the land for themselves or other people. Secondly, the provision enables a co-owner of land to make effective provision for the disposal of the co-owned land if he or she becomes mentally incapable. This is necessary because section 3(3) of the Enduring Powers of Attorney Act 1985 is repealed (section 4). Finally, the provision ensures that the donee is able to deal with the proceeds of sale and income from the land as well as the land itself. Without this additional scope the donee of a power of attorney could dispose of land under section 1 but be unable to deal with the proceeds of sale.

11.Subsection (1) provides that, where the donee of a power of attorney would only be prevented from doing an act because doing it would involve the exercise of a function of the donor as a trustee, the donee may nevertheless do that act if:

• the act relates to land (as defined in section 11(1)), the capital proceeds of a conveyance (as defined in subsection (2)) of land, or income from land; and
  
• at the time the act is done, the donor has a beneficial interest of any size or nature in the land, proceeds or income to which the act relates.
  

12.The person creating the trust or the donor may, however, exclude or restrict this provision in the document creating the trust or the power of attorney (as the case may be) (subsections (3) and (5)).

13.subsection (2) defines conveyance and the reference to a trustee function of the donor for the purpose of section 1. The definitions are set out in the glossary.

14.subsection (3) provides that the terms of the deed creating a power of attorney may limit or exclude delegation under this section. A donor is therefore not compelled to allow the donee to exercise a function by virtue of section 1.

15.subsection (4) addresses the issue of liability. It makes clear that, although a trustee is not liable for permitting a delegate to act under subsection (1), a trustee is liable for what a delegate does or fails to do. Subsection (4) is subject to subsection (5).

16.subsection (5) provides that a person creating a trust may limit or exclude the effect of subsections (1) and (4) by making express provision in the document creating the trust. There is a similar provision in relation to section 25 of the Trustee Act 1925 (Trustee Act 1925 s 69(2)).

17.subsection (6) replicates in relation to the exercise of trustee functions under subsection (1) the general effect of section 25(7) of the Trustee Act 1925 in relation to delegation under that section. It enables the bank or company in whose books shares and stocks are registered to ignore the notice of the trust which it would otherwise receive when dealing with a donee acting under subsection (1): for example where the donee uses the proceeds of sale of land to acquire stock from a company. This provision is necessary because a company registered in England and Wales is prohibited from entering notice of any trust on its register of members (Companies Act 1985 s 360).

18.subsection (7) addresses a particular problem arising from the operation of the doctrine of conversion. It provides that where that doctrine deems a trustee of land to have an interest in the proceeds of sale of the land rather than the land itself, the interest is to be treated for the purposes of sections 1 and 2 as being an interest in the land. The doctrine of conversion in relation to land held on trust for sale was largely abolished by section 3(1) of the Trusts of Land and Appointment of Trustees Act 1996. However, the doctrine still applies to trusts created by wills where the testator died before 1 January 1997. Subsection (7) avoids any arguments as to whether the donor has an interest in the land or the proceeds of sale where the doctrine still applies.

19.subsection (8) did not appear in the draft Bill attached to the Law Commission’s Report. The subsection makes it clear that section 1 only takes effect where a donee of a power of attorney is not otherwise authorised to exercise trustee functions. See also section 4(6).

20.subsection (9) prevents the new provision from applying to powers of attorney granted before the Act comes into force.

21.Section 2 supports section 1. A person dealing with a donee under section 1 has to know whether the donor has a beneficial interest in the relevant property (section 1(1)). This could be left to investigation. However, investigation of title to beneficial interests is notoriously complicated. Section 2 simplifies the transaction by providing a mechanism on which the person dealing with the donee can rely. The result is that a purchaser whose title depends upon a donee of a power of attorney having the right to exercise a trustee function by virtue of section 1(1) can rely on a written statement by the donee that, at the time that he or she exercised the trustee function, the donor had a beneficial interest in the relevant property.

22.subsection (1) states that section 2 applies to a purchaser whose interest depends on section 1 applying to a particular power of attorney.

23.subsections (2) and (3) provide that, where section 2 applies, an “appropriate statement” (as defined in subsection (3)) is, in favour of a purchaser, conclusive evidence that the donor had the necessary beneficial interest in the land, capital proceeds of a conveyance of land or income from land (as the case may be) at the time the donee exercised the trustee function by virtue of section 1(1). Such evidence may be displaced by fraud or inaccuracy on the face of the statement.

• An “appropriate statement” is a signed statement made by the donee that the donor has a beneficial interest in the property at the time that the donee exercises the trustee function by virtue of section 1. The statement must be made by the donee during the period of three months that begins with the day that the trustee function is exercised under section 1.
  

24.subsection (4) provides that a donee who makes a false statement is liable to the penalties which apply on making a false statutory declaration under section 5 of the Perjury Act 1911: a penalty on summary conviction of imprisonment for up to six months and/or a fine not exceeding level 5 on the standard scale (currently £5,000); on indictment, the penalty would be imprisonment for up to two years and/or an unlimited fine.

25.Section 3 provides that a donee of a general power of attorney in the form prescribed by section 10 of the Powers of Attorney Act 1971 may by virtue of section 1(1) exercise the trustee functions of the donor in relation to relevant property. To this extent, the section reverses the effect of Walia v. Michael Naughton Ltd [1985] 1 WLR 1115 (see note to section 4). The relevant extract from the 1971 Act showing the amendment effected by the Act is set out in Annex A.

26.Section 4 repeals section 3(3) of the Enduring Powers of Attorney Act 1985 subject to various transitional provisions.

Section 3(3) provides that “Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may (without obtaining any consent) execute or exercise all or any of the trusts, powers or discretions vested in the donor as trustee and may (without the concurrence of any other person) give valid receipt for capital or other money paid.”

27.This provision was introduced late in the passage of the Bill which became the Enduring Powers of Attorney Act 1985. It was intended to stop the combination of clause 2(8) of the then Bill (a power of attorney under Trustee Act 1925 s 25 cannot be an enduring power) and the effect of the decision in Walia v Michael Naughton Limited [1985] 1 WLR 1115 from reducing the efficacy of the enduring powers of attorney scheme by preventing an attorney under an enduring power from disposing of any of the donor’s property held on trust. In that case it was held that a power of attorney granted under section 10 of the Powers of Attorney Act 1971 was not appropriate to entitle the donee to execute a transfer of the legal estate in co-owned land because the transferor, whether or not purporting to convey as beneficial owner, was exercising the function of a trustee. Section 3(3) may however have gone much further than was necessary to achieve the desired result and may have the much wider, and undesirable, effect of delegating all the donor’s functions as a trustee whether or not he or she owns the property in question.

28.The repeal implements the policy that trustees who hold property only for third parties should only be able to delegate their trustee functions by statute subject to the safeguards imposed by section 25 of the Trustee Act 1925 (see section 5). The repeal brings to an end the existence of the inconsistent but overlapping regimes for delegation by individual trustees under section 25 of the Trustee Act 1925 and section 3(3) of the Enduring Powers of Attorney Act 1985. The transitional provisions are necessary because it is likely that there are in existence enduring powers of attorney in relation to which the donor is no longer mentally capable of making new provision for the delegation of trustee functions.

29.subsection (1) provides that the repeal of section 3(3) applies, without transitional provisions, to all enduring powers of attorney created after the Act comes into force.

30.subsections (2) - (4) provide that, for enduring powers in existence when the Act comes into force, the repeal takes effect one year after the Act comes into force unless the enduring power is registered pursuant to an application for registration made before or within that year, in which case, section 3(3) continues to apply to it until the registration is cancelled. The period of a year enables donors of enduring powers who are mentally capable to make new arrangements, whilst the exception preserves the effect of delegations where the donor is no longer capable of delegating his or her functions. In cases where such applications are unsuccessful section 3(3) continues to apply while the application is pending until final refusal (as defined in subsection (5)). Where section 3(3) ceases to apply, section 1 may take effect in relation to the power (see subsection (6)).

31.The expressions ‘registration’, ‘registered’ and ‘cancelled’ are defined by reference to the 1985 Act. Under that Act, if the donee of an enduring power has reason to believe that the donor is or is becoming mentally incapable, the donee must apply to the Court of Protection for registration of the instrument creating the power (Enduring Power of Attorney Act 1985 s 4). On the donor becoming mentally incapable, the donee may not, except in certain limited circumstances, exercise the enduring power of attorney (Enduring Powers of Attorney Act 1985 s 1). On registration, the donee may exercise the power of attorney and a revocation of the power by the donor is only valid if confirmed by the Court of Protection (Enduring Powers of Attorney Act 1985 ss 1(1), 7 and 8(3)). The circumstances in which the Court of Protection can cancel a registration are set out in section 8(4) of the 1985 Act. They include confirmation by the Court of Protection of a revocation by the donor.

32.subsection (5) provides that an application is deemed to be “finally refused” when the applicant has withdrawn or abandoned the application or the right to appeal has been exhausted.

33.subsection (6) did not appear in the Bill annexed to the Law Commission Report. The Law Commission had proposed that on section 3(3) ceasing to have effect, an enduring power made before that Bill came into force would no longer have been effective to delegate trustee functions. Subsection (6) provides that on section 3(3) ceasing to apply, section 1 may take effect in relation to an enduring power (see also section 1(8)). Thus, where the donor of an enduring power does not make a new delegation in the one year transitional period, the enduring power may still be effective in relation to property falling within section 1. Without this provision, all donors of enduring powers created before the Act comes into force would have to grant new enduring powers to delegate trustee functions after section 3(3) ceases to apply.

34.Section 5 substitutes a new section 25 of the Trustee Act 1925 in relation to powers of attorney granted after the Act comes into force. In its previous form section 25 allowed a trustee to delegate by power of attorney for a period of up to twelve months the exercise of the trusts, powers and discretions (i.e. functions) vested in him or her as trustee. This power to delegate was, however, subject to various safeguards intended to protect the interests of beneficiaries from excessive delegation. In brief, these were that the trustee may not delegate to a sole co-trustee (unless a trust corporation); must give notice of each appointment to specified persons; and remained liable for the acts and omissions of the attorney. The powers conferred by section 25 could be excluded or restricted by the document, if any, creating the trust (Trustee Act 1925 s 69(2)).

35.subsection (1) sets out the text of the new section 25. The new section 25(1) enables a trustee to delegate by power of attorney the exercise of trustee functions. The only change from the pervious section 25(1) is the removal of the reference to the permitted duration of such delegation. This is dealt with in the new section 25(2) which preserves the twelve month time limit but clarifies its effect. The result is that, subject to that maximum, a power of attorney can define the period for which it has effect. If nothing is said, the power is to apply for twelve months from the date of its execution by the donor.

36.The new section 25(3) replaces the old section 25(2). The only change to this provision is the removal of the prohibition on a sole co-trustee being the donee of a power of attorney granted under section 25. This prohibition was ineffective for two reasons. First, it did not apply if there were more than two trustees all except one of whom delegated to one co-trustee. Second, it did not take account of the possibility of delegation by several trustees to one attorney. The objective of securing the involvement at the relevant time of at least two persons can be better secured by other means (see section 7).

37.Subsections (5) and (6) of the new section 25 are new. Taken together these subsections provide a new prescribed form of power of attorney which may be used by a single trustee wishing to delegate all of his or her trustee functions in relation to a single trust to a single attorney. This new form is similar to that created by section 10 of the Powers of Attorney Act 1971 which cannot be used by trustees but is widely used generally. A power of attorney differing in immaterial respects only has the same effect as a power in the prescribed form.

38.The only other substantive difference between the new section 25 and the old section 25 is the omission of the old subsection (3) (instrument creating a power of attorney to be attested by at least one witness), which was superseded by section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989. Section 1(3) specifies that an instrument is only validly executed as a deed if it is signed by the person making the deed either in the presence of a witness who attests the signature or at his or her direction and in his or her presence and the presence of two witnesses who each attest the signature; and, in either case, it is delivered as a deed by him or her or a person authorised to do so on his or her behalf. No special provision for executing powers of attorney under section 25 is therefore required.

39.Subsections (4) and (7) - (10) of the new section 25 replace subsection (4) and (5) - (8) respectively of the old section 25 without any substantive change.

40.Subsection (2) provides that the new section 25 does not apply to powers of attorney granted before the Act comes into force.

41.Subsection (3) amends some descriptive wording in section 34(2)(b) of the Pensions Act 1995. The amendment does not affect the substance of section 34(2)(b). The descriptive words removed reflect the original limitation in section 25 as enacted which restricted its operation to circumstances in which a trustee was to be absent abroad for more than one month. The restriction was removed by the Power of Attorney Act 1971. The amendment removes the redundant wording “during absence abroad” and inserts “for period not exceeding twelve months” which corresponds with the provisions in the new section 25.

42.Section 6 repeals section 2(8) of the Enduring Powers of Attorney Act 1985 (which provided that a power of attorney granted under section 25 could not be an enduring power). The repeal allows an enduring power of attorney to be used to delegate trustee functions under section 25 of the Trustee Act 1925 after the Act comes into force. The requirements of section 25 apply.

43.Section 7 specifies the circumstances when a person acting alone cannot satisfy a statutory requirement that two trustees are to receive trust money (the “two- trustee rules”). These requirements are that:

(a)

capital monies arising from land must be paid to, or at the direction of, at least two trustees (Settled Land Act 1925 ss 18(1)© and 94(1); Law of Property Act 1925 s 27(2));

 

(b)

a valid receipt for such capital monies must be given otherwise than by a sole trustee (Trustee Act 1925 s 14(2)); and

 

©

a conveyance or deed must be made by at least two trustees to overreach any powers or interests affecting a legal estate in land (Law of Property Act 1925 s 2(1)(ii)).

 

 

 

44.The section is intended to make it clear that, so long as there are at least two trustees, the “two-trustee rules” can be satisfied either by two people acting in different capacities or by two people acting jointly in the same capacity but not by one person acting in two capacities. For example, where A and B are the only trustees: if A and B each appoint X as attorney, X (acting alone) would not satisfy the “two-trustee rules”. However, if A appointed X as his attorney and B appointed Y as his, X and Y could act together and satisfy the requirement. Similarly, if A appointed X and Y as his joint attorneys and B appointed X and Y as his joint attorneys, X and Y can satisfy the requirement.

45.Subsection (3) provides that section 7 takes effect in relation to all powers of attorney whenever created. However, it does not prevent an attorney under an enduring power to which section 3(3) still applies (see section 4) from acting pursuant to that section.

46.Section 8 inserts four new subsections in section 36 of the Trustee Act 1925 (power of appointing new or additional trustees). The new subsections give the donee of an enduring power of attorney created after the commencement of the Act a new but limited power of appointment of new trustees in certain circumstances. The new power is necessary to prevent the strengthened “two-trustee rules” (section 7) from frustrating the new power for an attorney under an enduring power to exercise the trustee functions of the donor (section 1). For example, A holds land for himself and B. A appoints X as his attorney under an enduring power. A loses mental capacity and the power is registered. X wants to sell the land but cannot satisfy the “two- trustee rules” unless a new trustee is appointed.

47.Subsection (1) inserts subsections 36(6A) - (6D) into section 36 of the Trustee Act 1925.

• Subsection (6A) provides that a person (‘the attorney’) who satisfies subsection (6B) may appoint a new trustee under section 36(6)(b) if the attorney is either a trustee and an attorney under a registered enduring power of attorney (defined in subsection (6C)) for all the other trustees (to a maximum of two) or an attorney for all the trustees (to a maximum of three). The maximum of three is specified because section 36(6) cannot be used to increase the number of trustees beyond four.
  
• Subsection (6B) is satisfied if the attorney intends to exercise a trustee function in relation to land, capital proceeds of a conveyance of land or income from land under section 1(1), section 25 of the Trustee Act 1925 or the instrument creating the trust.
  
• Subsection (6C) defines a ‘registered power’ as an enduring power of attorney registered under section 6 of the Enduring Powers of Attorney Act 1985 (see the note to section 4(3) and 4(4) as to when a duty to register arises).
  
• Subsection (6D) provides that the power in subsection (6A) may be excluded or limited in the document creating the power of attorney or the trust (as the case may be).
  

48.Subsection (2) provides that the power to appoint a new trustee does not apply to an attorney appointed by a power granted before the commencement of the Act.

49.Section 9 inserts a new subsection (3) into section 22 of the Law of Property Act 1925. Section 22(2) provides that if land subject to a trust of land is vested, solely or jointly, in a trustee who is incapable by reason of mental disorder of exercising his or her functions as a trustee, the trustee shall be discharged before the legal estate is dealt with. This provision might prevent an attorney for an incapable trustee under a registered enduring power from dealing with the legal estate and thereby defeat the policy underlying the Enduring Powers of Attorney Act 1985 and section 1. The new subsection (3) provides that no discharge is necessary if there is an attorney under an enduring power (as defined in Enduring Powers of Attorney Act 1985 s 2) entitled to act for the incapable trustee. The new subsection (3) applies whenever the enduring power was created.

50.Section 10 creates a general rule of interpretation in relation to the extent of the authority conferred by a power of attorney in relation to land. The new rule provides that, in powers of attorney created after the commencement of the Act, a reference to land includes, subject to any contrary intention in the power of attorney, a reference to all the interests of the donor of the power of attorney in the land at the time that the donee acts. This new provision prevents the technical distinctions between legal and equitable interests in land frustrating the intentions of donors of powers of attorney who may not appreciate the legal niceties. For example, A and B are a married couple who own their own house. In creating a power of attorney A may refer to “my house” even if it is jointly owned, but even if he says “our house” he is unlikely to make it clear whether he is referring to his legal interest, which he holds as trustee, or his equitable interest of which he is the beneficial owner.

51.Subsection (1) provides that a reference to land (as defined in section 11(1)) in a power of attorney includes a reference to every estate and interest (whether legal or equitable) which the donor has in that land for the time being.

52.Subsection (2) provides that the donor of a power of attorney may exclude or restrict the effect of subsection (1) by expressing a contrary intention in the power.

53.Subsection (3) limits the rule of interpretation to powers of attorney granted after the commencement of the Act.

54.Section 11 defines ‘land’ and ‘enduring power’ for the purposes of the Act. The definitions are set out in the glossary.

Commencement

 

55.Sections 1 - 12 will come into force on such date as the Lord Chancellor may appoint by order.

Hansard References

 

56.The following table sets out the dates and Hansard references for each stage of this Act’s passage through Parliament.

StageDateHansard referenceHouse of LordsIntroduction3 December 1998Vol. 595 Col. 6052nd Reading11 January 1999Vol. 596 Cols. 11-20Committee2 February 1999Vol. 596 Cols. 1421-3Report2 February 1999Vol. 596 Cols. 1421-3Third Reading9 March 1999Vol. 598 Cols. 125-9House of CommonsIntroduction9 March 1999–2nd Reading Committee17 March 19992nd Reading Committee Hansard2nd Reading14 June 1999Vol. 327 Col. 115 (formal)Committee (SCF)22 June 1999Standing Committee F HansardThird Reading14 July 1999Vol. 335 Cols. 534-6

 

Royal Assent – 15 July 1999House of LordsHansard Vol.604 Col.601House of CommonsHansard Vol.335 Col.648

 

Annex A: Section 10 of the Power of Attorney Act 1971

 

“Effect of general power of attorney in specified form

10 (1.Subject to subsection (2) of this section, a general power of attorney in the form set out in Schedule 1 to this Act, or in a form to the like effect but expressed to be made under this Act, shall operate to confer -

(a.on the donee of the power; or

(b.if there is more than one donee, on the donees acting jointly or acting jointly or severally, as the case may be,

authority to do on behalf of the donor anything which he can lawfully do by an attorney.

(2.

Subject to section 1 of the Trustee Delegation Act 1999

, this section does not apply to functions which the donor has as a trustee or personal representative or as a tenant for life or statutory owner within the meaning of the Settled Land Act 1925.”

Note: text in italics denote amendment introduced by the Act

Annex B: Glossary of Terms

 

• Beneficial Interest: the rights of a beneficiary in respect of property held under a trust for him or her.
  
• Beneficiary: a person entitled to benefit from a trust.
  
• Charge: an interest in property creating a security for the performance of an obligation: for example, a mortgage of land may secure an obligation to repay a debt.
  
• Conversion: the doctrine of conversion states that where land is held on trust for sale, the interests of the beneficiaries are deemed to be interests in the proceeds of sale, even before the land has been sold. Treating interests in land in this way simplified conveyancing but produced artificiality and inconsistency in relation to the categorisation of interests as interests in land or in the proceeds of sale.
  
• Conveyance: in general terms a conveyance is a legal document (other than a will) which transfers property. It is defined in the Law of Property Act 1925 s 205(1)(ii) as including a mortgage, charge, lease, assent [an assurance by personal representatives of a deceased person vesting property in the person entitled], vesting declaration [a declaration in a deed appointing new trustees that the property vests in the trustees], vesting instrument [a deed vesting settled land], disclaimer, release and every other assurance [a disposition and transfer] of property or an interest therein by any instrument, except a will.
  
• Deed : is a written document executed with the necessary formality (Law of Property (Miscellaneous Provisions) Act 1989 s 1).
  
• Donee: the person who is given authority under a power of attorney.
  
• Donor: the person who gives a power of attorney to a donee.
  
• Enduring Power of Attorney: a power of attorney made in accordance with the Enduring Powers of Attorney Act 1985. An enduring power may be effective notwithstanding the mental incapacity of the donor. In the Act “enduring power” is defined by reference to the Enduring Powers of Attorney Act 1985, which provides in particular that an enduring power must be granted in the prescribed form and be executed in the prescribed manner by the donor and the attorney (Enduring Powers of Attorney Act 1985 s 2(1)). The present prescribed form is set out in the Enduring Powers of Attorney (Prescribed Form) Regulations 1990 SI 1990/1376.
  
• Equitable Interests: all interests in land which are not legal interests are equitable interests. The rights of the beneficiaries against the trust assets are equitable interests.
  
• Execution: describes the way in which a person signs or seals (in the case of a corporation) a document and gives it legal effect.
  
• Instrument: a formal legal document.
  
• Interests in land: rights of ownership of or over land are interests in land. Interests may be estates, interests or charges (although an estate is simply a special kind of interest). These may be legal or equitable. See also equitable interests and legal interests.
  
• Land: land is defined in the Trustee Act 1925 as land of any tenure, and mines and minerals, whether or not severed from the surface, buildings or parts of buildings, whether the division is horizontal, vertical or made in any other way, and corporeal hereditaments [rights in property which may be inherited]; also a manor, an advowson [a right to present a clergyman to a benefice], and a rent and other incorporeal hereditaments, and an easement [a right over land for the benefit of other land, such as a right of way], right, privilege, or benefit in, over, or derived from land, (Trustee Act 1925 s 68(6) as amended by the Trusts of Land and Appointment of Trustees Act 1996 s 25(2) and schedule 4).
  
• Legal interests in land: today, the only legal estates are those for either a fee simple absolute in possession or a term of years absolute: in broad layman’s terms a freehold or a leasehold. See Law of Property Act 1925 ss 1(1) and 205(1)(x). The other types of legal interest and charge are relatively few (Law of Property Act 1925 s 1(2)). All other interests are equitable interests (Law of Property Act 1925 s 1(3)). In relation to a trust of land, the trustees hold the legal estate. Third parties will usually want to acquire the legal interest free of the rights of the beneficiaries under the trust.
  
• Overreaching: to overreach an interest on a disposition of property means to dispose of the property free of that interest. It is a mechanism whereby the rights of a beneficiary in trust land are detached from it and transferred to the proceeds of the sale of land, via the doctrine of conversion, enabling property to be sold where appropriate.
  
• Power of Attorney: a power of attorney is both the authority given by one person (‘the donor’) to another person (‘the donee’ or ‘attorney’) to act for the donor in a transaction or a series of transactions or in the management of his or her affairs and the document by which that authority is given. Under the law of England and Wales a power of attorney made by an individual must be executed as a deed (Powers of Attorney Act 1971 s 1(1)).
  
• Purchaser: is defined in the Law of Property Act 1925 as a person who, acting in good faith, acquires an interest in, or charge on, property for money or money’s worth (Law of Property Act 1925 s 205 (1)(xxi) as it applies to Part I of that Act).
  
• Settled land: land held or deemed to be held on trust (usually referred to as a settlement) subject to the terms of the Settled Land Act 1925. Trusts of this kind may now only be created in exceptional circumstances (see Trusts of Land and Appointment of Trustees Act 1996 s 2 and schedule 1). Such trusts were used in relation to land in which two or more beneficial interests were to exist in succession to one another. See Settled Land Act 1925 s 117(1)(xxiv).
  
• Trustee function of the donor: a trustee function of the donor is one the donor has as a sole trustee or one he or she exercises jointly with fellow trustees.
  
• Trust and trustee: a trustee is a person who has property or rights which he holds or is bound to exercise for or on behalf of another or others, or for the accomplishment of some particular purpose or purposes. He or she is said to hold the property on trust for that other or others, or for that purpose or purposes.
  
• Trust corporation: a trust corporation is one of certain companies with a large paid up capital, or one of certain officials. The most commonly encountered trust corporation is perhaps an executor and trustee company owned by one of the major banks or financial institutions. The term is defined in the Trustee Act 1925 (s 68(1) para (18) which definition was extended by Law of Property (Amendment) Act 1926 s 3).
  
• Trust for sale: a trust imposing a duty on the trustees to sell property subject to the trust and to hold the net proceeds of sale for the beneficiaries. Before the coming into force of the Trusts of Land and Appointment of Trustees Act 1996, a statutory trust for sale was imposed on co-owned land other than settled land (Law of Property Act 1925 ss 34 - 36 before amendment by the 1996 Act).
  
• Trust of land: a trust of land is any trust of property which consists of or includes land subject to exceptions for settled land and land to which the University and College Estates Act 1925 applies (Trusts of Land and Appointment of Trustees Act 1996 s 1).
  
• Trustee: See trust and trustee.
  
• Trustee function means the trusts, powers and discretions vested in the donor as trustee (Trustee Act 1925 s 25(1); Trusts of Land and Appointment of Trustees Act 1996 s 9(1).
  

[alisono]

Sorry where do I get this from Exhibit B” [attach a copy of the draft written representation – amend it first to include your own info – and a copy of the application form itself must be attached]

 

lots of documents on this website not sure which one and what to pay to do it.

Thank you

[applecart]

Here you go Alisono

 

I've re-drafted the 'draft written representation' for you and amended the heading to say 'Grounds' below

 

 

GROUNDS IN SUPPORT OF APPLICATION

[Enter date here]

 

 

1. In this case, it is evident that the applicant signed the mortgage deed; however, the applicant contends that the deed so signed failed to transfer the applicant’s legal estate by way of mortgage to the favor of SPML prior to being entered on the register by HMLR.

 

2. The applicants legal estate was a freehold registered estate at the time that the applicant signed the mortgage deed.

 

3. The applicant is the registered owner of the registered estate with Title Absolute known as [*enter full address of the property] registered by HMLR as title No: [*enter title No] and the Lender [*enter lenders, name, address here] is the purported registered legal owner of the applicants registered charge and registered legal estate.

 

i. It is submitted that pursuant to the LRA 2002 section 23; the applicant had no stautory power to create a mortgage by demise, and had no intent to do so. It is understood that 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 whole legal estate/property until the stated indebtedness was repaid in full.

 

ii. It is the case, that once the deed had been signed by the applicant and 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 sub-charge within the statutory owners powers of the applicant within the provision of LRA 2002 section 23 (2) (b).

 

iii. The applicant had no knowledge as to the legal implication of signing a document headed up as a ‘mortgage deed’ or any knowledge of the legal interpretation and implications attached to terms such as ‘with full title guarantee’ or ‘charge by way of legal mortgage’ and had no knowledge that such terms are intended only to be in evidence when the disposition is intended to secure indebtedness by way of mortgage against an un-registered estate.

 

4. It is submitted that contrary to a mortgage; a sub-charge is evinced when the borrower remains the owner of the legal estate and the indebtedness for money or moneys worth is secured when the lender is entered as the proprietor of the sub-charge in the charges register of the Borrowers principal legal charge.

 

i It is submitted that by virtue of Schedule 2, Article 10(2) of The Regulatory Reform (Execution of Documents and Deeds) Order 2005; it is no longer the case that a presumption of delivery can be taken on sight of the borrowers signature alone; for it repealed the words from “by him” to the end in subsection 1 (3) (b) of the Law of Property (Miscellaneous Provisions) Act 1989.

 

Ii In strict application in this case, this means that on its face the mortgage deed cannot be said to be validly executed and therefore has not been delivered.

 

Iii Additionally; Article 7 (3) of the said RRO repealed the words; “by the person making it” to the end in LP(MPA 1989 section 1 (2) (a) and further removed the words: “by that person” to the end in section 1 (2) (b).

 

Iv Further, Article 5 removes any ambiguity in relation to SPML’s duty to execute the deed for it boldly states: “Repeal of irrebuttle presumption of delivery”

 

v The duty for SPML to execute the deed is analogous with amendments to the LPA 1925 section 74 (1), (5) and 74A and the CA 2006 section 46 intended to correlate with their Memorandum and Articles of Association as a limited company.

 

vi The amendments caused by the RRO must be borne in mind whenever the validity of a deed is at issue, for its validity; it must comply with the LP(MP) Act 1989 section 1 (2) ‘as amended’ therefore, for it’s validity a deed must be ‘signed’ by the applicant pursuant to the LP(MP)Act 1989 s. 1 (3) ‘as amended’ but also; ‘executed’ by the lender pursuant to the LPA 1925 section 74 (1) &(5) and 74A in relation to securing any indebtedness for money or monies worth; before it can be said that the deed is validly executed.

 

Vii In this case, on its face; it is submitted that the deed in evidence is not a validly executed deed.

 

Viii 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 any 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’.

 

Ix 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.

 

x Further for the benefit of doubt, it is the case that a conveyance includes a charge within the meaning of the LPA 1925 section 205 (1)(ii).

 

xi It is submitted that in this case, the deed in evidence is the actual ‘form of charge’ relied upon by both the lender and subsequently by HMLR and is in the form as ‘approved’ by HMLR, this fact is denoted on the deed in evidence as ‘MDXXXXX’.[insert the ‘MD’ No] HMLR do confirm in their practice guide 30 that there is no prescribed form of charge. It is within the provision of the LRA 2002 section 67 (1) for the tribunal to rely that the copy of the deed is an ‘official’ copy and permissible as evidence.

 

xii It is not the case that a document; where on its face it evinces an attested signature of the borrower in the form of a deed, and due to being in writing, that it can be taken to convey a legal interest, when there is statutory provision to find that such a document would serve only to convey at best an equitable interest by virtue of the LPA 1925 section 53 (1) ©.

 

xiii In this case given the amendments to the Acts of Law stated herein that go to some length to re-establish the legal position in relation to the execution of deeds, their validity and delivery; it can not be said that the deed evinces or secured money or moneys worth in compliance with the LPA 1925 section 52 (1), in fact, for that, it is clearly now the intent of the legislators to place the onus on the lender to execute the deed, prior to any presumption of ‘delivery’ being made out to justify registration on the applicants registered estate. This point was explained a long time ago by Sir Charles Hall V.C in Watkins v Nash (1875) LR so Eq 262 at page 266 that:

 

“You cannot deliver the deed to the grantee himself, it is said, because that would be inconsistent with its preserving the character of an escrow. But if upon the whole of the transaction it be clear that the delivery was not intended to be a delivery to the grantee at that time, but that it was to be something different, then you must not give effect to the delivery as being a complete delivery, that not being the intent of the persons who executed the instrument.”

 

xiv The said point was made out even further back in time by Popham J in Hawksland v Gatchel (1601) Cro. Eliz. 835 at pages 835 – 836 in re-affirming the fact that what amounts to delivery of a deed in English law has been established for over 400 years :-

 

“For if, upon delivery, the words spoken by the obligor purport that it shall not be his deed, it is clear that it is not: as where one causeth an obligation to be written and sealed in my name, and brings it unto me, and prays that I would deliver it as my deed, and I say, “Do you such a thing, and take it as my deed, otherwise not;” it is clear, that it is not my deed until the thing be performed. So if the obligor saith, “Take it to you, I will not deliver it as my deed;” it is not his deed. Wherefore in the principal case, when the obligation is delivered as an escrow, by express words, it is not possible that it should be his deed, for the words are not sufficient to make it so until the condition be performed.”

 

xv The point was further re-affirmed and brought into present day by His Honour Judge Richard Seymour QC in the matter of Bibby Financial Services Ltd v Magson [2011] EWHC 2495 (QB) when he said in reliance on the decisions from cases stated above, that:

 

“Thus, in order for a document to be enforceable as a deed, whether executed by an individual or a limited liability company, it is necessary for it to be delivered as a deed.”

 

xvi It is submitted that there are similarities between this case and that of a matter recently decided by the Deputy Adjudicator to the Land Registry: Ann McAllister in the matter of: Garguilo v Jon Howard Gershinson & Anr [2012] EWLandRA 2011_0377 (06 January 2012 at para 76 where it as said that:

 

“If it were possible to argue that the doctrine of estoppel can cure the absence of a valid signature on the deed itself the statute could, in all circumstances, be circumvented. Formality has its well established place in the law, even though (as with the operation of the limitation period) the outcome may seem arbitrary, and, in the case of deeds, possibly commercially inconvenient’

 

xvii The only difference is that the statement made make reference to a ‘valid signature’ to ensure compliance, where as this application refers essentially to ‘valid execution and delivery’ in this case, it is submitted that; not only has the deed not been executed with any formality to evidence any presumption of ‘delivery’ but; the underlying mortgage offer, understood to be the document necessary to create a simple contractual agreement between the Lender and the Borrower on terms and conditions as referred to in the deed; has itself not been signed by the applicant or the lender and was at no time attached to the deed when the applicant signed the deed. [include this only if this can be ‘evidenced’ to be the case]

 

xviii It is submitted that it is by mistake that the lenders registered charge currently operates at law by virtue of the LRA 2002 section 58 (1) and stands to mistakenly portray to the world at large that the RRO 2005 was either not in force or did not act to remove the presumption of delivery in relation to the applicants signature and a further mistaken belief that a written document which on its face is by deed, signed by the borrower without due execution by the lender confers a legal interest when in fact by virtue of the substantiating law in these circumstances; no more than at best an equitable interest is in actual evidence.

 

ixv It is submitted that given the substantiating applicable law as stated herein, the registered charge stands to prejudicially affect the applicants rights to the legal estate. In the circumstances given that the lenders legal rights are due to statute alone, it is within the LPA 1925 section 1 (7) to find that the interpretation of the LRA 2002 section 58 (1) as claimed by SPML is to have no more effect than that of an owner of an equitable interest.

 

5 It is the applicants contention that the deed between the applicant and the lender is void ab initio pursuant to the LPA 1925 section 52 (1) for want of legal formality, and that the lender had no legal right to rely on the registered charge for legal effect to:

 

i effect a sale of the beneficial interest to Eurosail for valuable consideration, on the premise that it had a legal right to a mortgage by demise as being the only means by which such a sale could have been effected.

 

ii enter into possession of what it purports to have derived as a legally conveyed charge in the mistaken belief that it had secured a mortgage by demise at a time when the onus was on the lender to prevent a mortgage by demise coming into effect in breach of the substantiating law.

 

iii entered into possession of a purportedly conveyed legal estate in the mistaken belief that it had derived the inherent power of a legal mortgagee to do so.

 

iv mislead the applicant, a court of law and the world at large into believing that it derived the powers of a legal mortgagee in a right to bring court proceedings for possession of the applicants property.

 

v mislead a court of law into granting it an order for possession suspended subject to the applicant maintaining CMI payments and payments in arrears.

 

6 It is submitted that the RRO 2005 is in force to protect the interests of the public at large, at a time when the applicant had no power, intent or control to protect its own interests against the world at large.

 

7 The tribunal is humbly requested upon consideration of the submissions herein to set aside the deed as being void for want of formality and to order that HMLR rectify the registered estate of the applicant by altering the charge entered in favor of SPML by removing it due to being entered by mistake against the applicants registered estate.

 

Statement of Truth:

 

The Applicant believes that the statements herein are true

 

Signed: Date:

[Applicant]

 

Please check the above through (it comes with the usual caveats and disclaimers); when you copy and paste it....you will need to 'tidy' it up so as it is set neatly on to A4 sheets of paper......

 

I will post the link to the 'application form' itself in a wee while ok?

 

Apple

[applecart]

Is what I need to send as Exibit A?

 

Trustee Delegation Act 1999

 

1999 CHAPTER 15

 

 

Introduction

 

1.These explanatory notes relate to the Trustee Delegation Act 1999 which received Royal Assent on 15 July 1999. They have been prepared by the Lord Chancellor’s Department in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

3.Annex A sets out the text of Powers of Attorney Act 1971 s 10 as amended by the Act. A glossary of technical terms used in these notes is provided at Annex B.

Summary

 

4.The Act implements, with minor modifications, the changes to the law recommended by the Law Commission in its report The Law of Trusts: Delegation by Individual Trustees (1994) Law Com No 220.

5.The sections of the Act may conveniently be divided into five groups.

• Sections 1 - 4 create an exception to the general rule that the exercise of trustee functions may not be delegated.
  
• Sections 5 - 6 amend the general statutory conditions on which a trustee may delegate the exercise of his or her trustee functions and provide for the creation of a statutory form of power of attorney for use by a trustee.
  
• Sections 7 - 9 prevent the rules of law which require capital monies to be paid to at least two trustees from being circumvented by use of a power of attorney and make provision relating to registered enduring powers of attorney.
  
• Section 10 creates a rule of interpretation that an attorney’s authority to do an act in relation to land includes authority to do that act in relation to any estate or interest in the land.
  
• Sections 11 - 13 deal with commencement and other supplementary matters.
  

Background

 

6.The primary responsibility of trustees has traditionally been to hold property on behalf of the beneficiaries under the trust. The trustee must safeguard the property and deal with it in the best interests of the beneficiaries. It is a general rule of trust law that trustees, having voluntarily agreed to act as such, cannot delegate the exercise of their powers and duties. The rule is subject to the following exceptions:

• if the instrument establishing the trust specifically authorises delegation;
  
• if delegation is permitted by all the beneficiaries (for this exception to apply, all the beneficiaries must be both mentally capable and at least eighteen years old);
  
• if delegation is permitted under section 25 of the Trustee Act 1925 or section 3(3) of the Enduring Powers of Attorney Act 1985.
  

7.Following criticism of section 3(3) the Law Commission was asked to consider the operation of the present law. It issued a consultation paper The Law of Trusts: Delegation by Individual Trustees CP No 118 in 1991. The response to the paper supported the Commission’s provisional conclusion that section 3(3) was inappropriate for delegation by trustees in general but that special provision should be made for co-owners of land who are trustees. In 1994 the Law Commission published its report The Law of Trusts: Delegation by Individual Trustees Law Com No 220. In the report the Law Commission concluded that in relation to delegation by individual trustees generally the conditions imposed by section 25 of the Trustee Act 1925 were, subject to certain minor changes, appropriate but that section 3(3) was inappropriate. The Law Commission also concluded that some relaxation of the rules, designed to address the needs of beneficial co-owners of land, was justified.

THE Act

 

8.The Act has thirteen sections and a repeal Schedule. The Act relates only to England and Wales.

Commentary on Sections

 

9.Section 1 creates a new statutory exception to the general rule that a trustee must exercise in person the functions vested in him or her as a trustee. The effect of the exception is that, where a power of attorney authorises a donee to act on behalf of the donor in relation to property of the relevant kind, the donee is not prevented from acting by the rule that the donor must exercise trustee functions in person.

10.The provision is of particular benefit to co-owners of land. First, it enables co-owners to delegate without having to comply with the restrictions which apply where trustees hold land only for third parties. The need for this special rule for co-owners of land arises because the 1925 property legislation requires land owned by more than one person to be held on trust. The result is that co-owners of land are, whether they appreciate it or not, trustees of a freehold or leasehold estate in land irrespective of whether they hold the land for themselves or other people. Secondly, the provision enables a co-owner of land to make effective provision for the disposal of the co-owned land if he or she becomes mentally incapable. This is necessary because section 3(3) of the Enduring Powers of Attorney Act 1985 is repealed (section 4). Finally, the provision ensures that the donee is able to deal with the proceeds of sale and income from the land as well as the land itself. Without this additional scope the donee of a power of attorney could dispose of land under section 1 but be unable to deal with the proceeds of sale.

11.Subsection (1) provides that, where the donee of a power of attorney would only be prevented from doing an act because doing it would involve the exercise of a function of the donor as a trustee, the donee may nevertheless do that act if:

• the act relates to land (as defined in section 11(1)), the capital proceeds of a conveyance (as defined in subsection (2)) of land, or income from land; and
  
• at the time the act is done, the donor has a beneficial interest of any size or nature in the land, proceeds or income to which the act relates.
  

12.The person creating the trust or the donor may, however, exclude or restrict this provision in the document creating the trust or the power of attorney (as the case may be) (subsections (3) and (5)).

13.subsection (2) defines conveyance and the reference to a trustee function of the donor for the purpose of section 1. The definitions are set out in the glossary.

14.subsection (3) provides that the terms of the deed creating a power of attorney may limit or exclude delegation under this section. A donor is therefore not compelled to allow the donee to exercise a function by virtue of section 1.

15.subsection (4) addresses the issue of liability. It makes clear that, although a trustee is not liable for permitting a delegate to act under subsection (1), a trustee is liable for what a delegate does or fails to do. Subsection (4) is subject to subsection (5).

16.subsection (5) provides that a person creating a trust may limit or exclude the effect of subsections (1) and (4) by making express provision in the document creating the trust. There is a similar provision in relation to section 25 of the Trustee Act 1925 (Trustee Act 1925 s 69(2)).

17.subsection (6) replicates in relation to the exercise of trustee functions under subsection (1) the general effect of section 25(7) of the Trustee Act 1925 in relation to delegation under that section. It enables the bank or company in whose books shares and stocks are registered to ignore the notice of the trust which it would otherwise receive when dealing with a donee acting under subsection (1): for example where the donee uses the proceeds of sale of land to acquire stock from a company. This provision is necessary because a company registered in England and Wales is prohibited from entering notice of any trust on its register of members (Companies Act 1985 s 360).

18.subsection (7) addresses a particular problem arising from the operation of the doctrine of conversion. It provides that where that doctrine deems a trustee of land to have an interest in the proceeds of sale of the land rather than the land itself, the interest is to be treated for the purposes of sections 1 and 2 as being an interest in the land. The doctrine of conversion in relation to land held on trust for sale was largely abolished by section 3(1) of the Trusts of Land and Appointment of Trustees Act 1996. However, the doctrine still applies to trusts created by wills where the testator died before 1 January 1997. Subsection (7) avoids any arguments as to whether the donor has an interest in the land or the proceeds of sale where the doctrine still applies.

19.subsection (8) did not appear in the draft Bill attached to the Law Commission’s Report. The subsection makes it clear that section 1 only takes effect where a donee of a power of attorney is not otherwise authorised to exercise trustee functions. See also section 4(6).

20.subsection (9) prevents the new provision from applying to powers of attorney granted before the Act comes into force.

21.Section 2 supports section 1. A person dealing with a donee under section 1 has to know whether the donor has a beneficial interest in the relevant property (section 1(1)). This could be left to investigation. However, investigation of title to beneficial interests is notoriously complicated. Section 2 simplifies the transaction by providing a mechanism on which the person dealing with the donee can rely. The result is that a purchaser whose title depends upon a donee of a power of attorney having the right to exercise a trustee function by virtue of section 1(1) can rely on a written statement by the donee that, at the time that he or she exercised the trustee function, the donor had a beneficial interest in the relevant property.

22.subsection (1) states that section 2 applies to a purchaser whose interest depends on section 1 applying to a particular power of attorney.

23.subsections (2) and (3) provide that, where section 2 applies, an “appropriate statement” (as defined in subsection (3)) is, in favour of a purchaser, conclusive evidence that the donor had the necessary beneficial interest in the land, capital proceeds of a conveyance of land or income from land (as the case may be) at the time the donee exercised the trustee function by virtue of section 1(1). Such evidence may be displaced by fraud or inaccuracy on the face of the statement.

• An “appropriate statement” is a signed statement made by the donee that the donor has a beneficial interest in the property at the time that the donee exercises the trustee function by virtue of section 1. The statement must be made by the donee during the period of three months that begins with the day that the trustee function is exercised under section 1.
  

24.subsection (4) provides that a donee who makes a false statement is liable to the penalties which apply on making a false statutory declaration under section 5 of the Perjury Act 1911: a penalty on summary conviction of imprisonment for up to six months and/or a fine not exceeding level 5 on the standard scale (currently £5,000); on indictment, the penalty would be imprisonment for up to two years and/or an unlimited fine.

25.Section 3 provides that a donee of a general power of attorney in the form prescribed by section 10 of the Powers of Attorney Act 1971 may by virtue of section 1(1) exercise the trustee functions of the donor in relation to relevant property. To this extent, the section reverses the effect of Walia v. Michael Naughton Ltd [1985] 1 WLR 1115 (see note to section 4). The relevant extract from the 1971 Act showing the amendment effected by the Act is set out in Annex A.

26.Section 4 repeals section 3(3) of the Enduring Powers of Attorney Act 1985 subject to various transitional provisions.

Section 3(3) provides that “Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may (without obtaining any consent) execute or exercise all or any of the trusts, powers or discretions vested in the donor as trustee and may (without the concurrence of any other person) give valid receipt for capital or other money paid.”

27.This provision was introduced late in the passage of the Bill which became the Enduring Powers of Attorney Act 1985. It was intended to stop the combination of clause 2(8) of the then Bill (a power of attorney under Trustee Act 1925 s 25 cannot be an enduring power) and the effect of the decision in Walia v Michael Naughton Limited [1985] 1 WLR 1115 from reducing the efficacy of the enduring powers of attorney scheme by preventing an attorney under an enduring power from disposing of any of the donor’s property held on trust. In that case it was held that a power of attorney granted under section 10 of the Powers of Attorney Act 1971 was not appropriate to entitle the donee to execute a transfer of the legal estate in co-owned land because the transferor, whether or not purporting to convey as beneficial owner, was exercising the function of a trustee. Section 3(3) may however have gone much further than was necessary to achieve the desired result and may have the much wider, and undesirable, effect of delegating all the donor’s functions as a trustee whether or not he or she owns the property in question.

28.The repeal implements the policy that trustees who hold property only for third parties should only be able to delegate their trustee functions by statute subject to the safeguards imposed by section 25 of the Trustee Act 1925 (see section 5). The repeal brings to an end the existence of the inconsistent but overlapping regimes for delegation by individual trustees under section 25 of the Trustee Act 1925 and section 3(3) of the Enduring Powers of Attorney Act 1985. The transitional provisions are necessary because it is likely that there are in existence enduring powers of attorney in relation to which the donor is no longer mentally capable of making new provision for the delegation of trustee functions.

29.subsection (1) provides that the repeal of section 3(3) applies, without transitional provisions, to all enduring powers of attorney created after the Act comes into force.

30.subsections (2) - (4) provide that, for enduring powers in existence when the Act comes into force, the repeal takes effect one year after the Act comes into force unless the enduring power is registered pursuant to an application for registration made before or within that year, in which case, section 3(3) continues to apply to it until the registration is cancelled. The period of a year enables donors of enduring powers who are mentally capable to make new arrangements, whilst the exception preserves the effect of delegations where the donor is no longer capable of delegating his or her functions. In cases where such applications are unsuccessful section 3(3) continues to apply while the application is pending until final refusal (as defined in subsection (5)). Where section 3(3) ceases to apply, section 1 may take effect in relation to the power (see subsection (6)).

31.The expressions ‘registration’, ‘registered’ and ‘cancelled’ are defined by reference to the 1985 Act. Under that Act, if the donee of an enduring power has reason to believe that the donor is or is becoming mentally incapable, the donee must apply to the Court of Protection for registration of the instrument creating the power (Enduring Power of Attorney Act 1985 s 4). On the donor becoming mentally incapable, the donee may not, except in certain limited circumstances, exercise the enduring power of attorney (Enduring Powers of Attorney Act 1985 s 1). On registration, the donee may exercise the power of attorney and a revocation of the power by the donor is only valid if confirmed by the Court of Protection (Enduring Powers of Attorney Act 1985 ss 1(1), 7 and 8(3)). The circumstances in which the Court of Protection can cancel a registration are set out in section 8(4) of the 1985 Act. They include confirmation by the Court of Protection of a revocation by the donor.

32.subsection (5) provides that an application is deemed to be “finally refused” when the applicant has withdrawn or abandoned the application or the right to appeal has been exhausted.

33.subsection (6) did not appear in the Bill annexed to the Law Commission Report. The Law Commission had proposed that on section 3(3) ceasing to have effect, an enduring power made before that Bill came into force would no longer have been effective to delegate trustee functions. Subsection (6) provides that on section 3(3) ceasing to apply, section 1 may take effect in relation to an enduring power (see also section 1(8)). Thus, where the donor of an enduring power does not make a new delegation in the one year transitional period, the enduring power may still be effective in relation to property falling within section 1. Without this provision, all donors of enduring powers created before the Act comes into force would have to grant new enduring powers to delegate trustee functions after section 3(3) ceases to apply.

34.Section 5 substitutes a new section 25 of the Trustee Act 1925 in relation to powers of attorney granted after the Act comes into force. In its previous form section 25 allowed a trustee to delegate by power of attorney for a period of up to twelve months the exercise of the trusts, powers and discretions (i.e. functions) vested in him or her as trustee. This power to delegate was, however, subject to various safeguards intended to protect the interests of beneficiaries from excessive delegation. In brief, these were that the trustee may not delegate to a sole co-trustee (unless a trust corporation); must give notice of each appointment to specified persons; and remained liable for the acts and omissions of the attorney. The powers conferred by section 25 could be excluded or restricted by the document, if any, creating the trust (Trustee Act 1925 s 69(2)).

35.subsection (1) sets out the text of the new section 25. The new section 25(1) enables a trustee to delegate by power of attorney the exercise of trustee functions. The only change from the pervious section 25(1) is the removal of the reference to the permitted duration of such delegation. This is dealt with in the new section 25(2) which preserves the twelve month time limit but clarifies its effect. The result is that, subject to that maximum, a power of attorney can define the period for which it has effect. If nothing is said, the power is to apply for twelve months from the date of its execution by the donor.

36.The new section 25(3) replaces the old section 25(2). The only change to this provision is the removal of the prohibition on a sole co-trustee being the donee of a power of attorney granted under section 25. This prohibition was ineffective for two reasons. First, it did not apply if there were more than two trustees all except one of whom delegated to one co-trustee. Second, it did not take account of the possibility of delegation by several trustees to one attorney. The objective of securing the involvement at the relevant time of at least two persons can be better secured by other means (see section 7).

37.Subsections (5) and (6) of the new section 25 are new. Taken together these subsections provide a new prescribed form of power of attorney which may be used by a single trustee wishing to delegate all of his or her trustee functions in relation to a single trust to a single attorney. This new form is similar to that created by section 10 of the Powers of Attorney Act 1971 which cannot be used by trustees but is widely used generally. A power of attorney differing in immaterial respects only has the same effect as a power in the prescribed form.

38.The only other substantive difference between the new section 25 and the old section 25 is the omission of the old subsection (3) (instrument creating a power of attorney to be attested by at least one witness), which was superseded by section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989. Section 1(3) specifies that an instrument is only validly executed as a deed if it is signed by the person making the deed either in the presence of a witness who attests the signature or at his or her direction and in his or her presence and the presence of two witnesses who each attest the signature; and, in either case, it is delivered as a deed by him or her or a person authorised to do so on his or her behalf. No special provision for executing powers of attorney under section 25 is therefore required.

39.Subsections (4) and (7) - (10) of the new section 25 replace subsection (4) and (5) - (8) respectively of the old section 25 without any substantive change.

40.Subsection (2) provides that the new section 25 does not apply to powers of attorney granted before the Act comes into force.

41.Subsection (3) amends some descriptive wording in section 34(2)(b) of the Pensions Act 1995. The amendment does not affect the substance of section 34(2)(b). The descriptive words removed reflect the original limitation in section 25 as enacted which restricted its operation to circumstances in which a trustee was to be absent abroad for more than one month. The restriction was removed by the Power of Attorney Act 1971. The amendment removes the redundant wording “during absence abroad” and inserts “for period not exceeding twelve months” which corresponds with the provisions in the new section 25.

42.Section 6 repeals section 2(8) of the Enduring Powers of Attorney Act 1985 (which provided that a power of attorney granted under section 25 could not be an enduring power). The repeal allows an enduring power of attorney to be used to delegate trustee functions under section 25 of the Trustee Act 1925 after the Act comes into force. The requirements of section 25 apply.

43.Section 7 specifies the circumstances when a person acting alone cannot satisfy a statutory requirement that two trustees are to receive trust money (the “two- trustee rules”). These requirements are that:

(a)

capital monies arising from land must be paid to, or at the direction of, at least two trustees (Settled Land Act 1925 ss 18(1)© and 94(1); Law of Property Act 1925 s 27(2));

 

(b)

a valid receipt for such capital monies must be given otherwise than by a sole trustee (Trustee Act 1925 s 14(2)); and

 

©

a conveyance or deed must be made by at least two trustees to overreach any powers or interests affecting a legal estate in land (Law of Property Act 1925 s 2(1)(ii)).

 

 

 

44.The section is intended to make it clear that, so long as there are at least two trustees, the “two-trustee rules” can be satisfied either by two people acting in different capacities or by two people acting jointly in the same capacity but not by one person acting in two capacities. For example, where A and B are the only trustees: if A and B each appoint X as attorney, X (acting alone) would not satisfy the “two-trustee rules”. However, if A appointed X as his attorney and B appointed Y as his, X and Y could act together and satisfy the requirement. Similarly, if A appointed X and Y as his joint attorneys and B appointed X and Y as his joint attorneys, X and Y can satisfy the requirement.

45.Subsection (3) provides that section 7 takes effect in relation to all powers of attorney whenever created. However, it does not prevent an attorney under an enduring power to which section 3(3) still applies (see section 4) from acting pursuant to that section.

46.Section 8 inserts four new subsections in section 36 of the Trustee Act 1925 (power of appointing new or additional trustees). The new subsections give the donee of an enduring power of attorney created after the commencement of the Act a new but limited power of appointment of new trustees in certain circumstances. The new power is necessary to prevent the strengthened “two-trustee rules” (section 7) from frustrating the new power for an attorney under an enduring power to exercise the trustee functions of the donor (section 1). For example, A holds land for himself and B. A appoints X as his attorney under an enduring power. A loses mental capacity and the power is registered. X wants to sell the land but cannot satisfy the “two- trustee rules” unless a new trustee is appointed.

47.Subsection (1) inserts subsections 36(6A) - (6D) into section 36 of the Trustee Act 1925.

• Subsection (6A) provides that a person (‘the attorney’) who satisfies subsection (6B) may appoint a new trustee under section 36(6)(b) if the attorney is either a trustee and an attorney under a registered enduring power of attorney (defined in subsection (6C)) for all the other trustees (to a maximum of two) or an attorney for all the trustees (to a maximum of three). The maximum of three is specified because section 36(6) cannot be used to increase the number of trustees beyond four.
  
• Subsection (6B) is satisfied if the attorney intends to exercise a trustee function in relation to land, capital proceeds of a conveyance of land or income from land under section 1(1), section 25 of the Trustee Act 1925 or the instrument creating the trust.
  
• Subsection (6C) defines a ‘registered power’ as an enduring power of attorney registered under section 6 of the Enduring Powers of Attorney Act 1985 (see the note to section 4(3) and 4(4) as to when a duty to register arises).
  
• Subsection (6D) provides that the power in subsection (6A) may be excluded or limited in the document creating the power of attorney or the trust (as the case may be).
  

48.Subsection (2) provides that the power to appoint a new trustee does not apply to an attorney appointed by a power granted before the commencement of the Act.

49.Section 9 inserts a new subsection (3) into section 22 of the Law of Property Act 1925. Section 22(2) provides that if land subject to a trust of land is vested, solely or jointly, in a trustee who is incapable by reason of mental disorder of exercising his or her functions as a trustee, the trustee shall be discharged before the legal estate is dealt with. This provision might prevent an attorney for an incapable trustee under a registered enduring power from dealing with the legal estate and thereby defeat the policy underlying the Enduring Powers of Attorney Act 1985 and section 1. The new subsection (3) provides that no discharge is necessary if there is an attorney under an enduring power (as defined in Enduring Powers of Attorney Act 1985 s 2) entitled to act for the incapable trustee. The new subsection (3) applies whenever the enduring power was created.

50.Section 10 creates a general rule of interpretation in relation to the extent of the authority conferred by a power of attorney in relation to land. The new rule provides that, in powers of attorney created after the commencement of the Act, a reference to land includes, subject to any contrary intention in the power of attorney, a reference to all the interests of the donor of the power of attorney in the land at the time that the donee acts. This new provision prevents the technical distinctions between legal and equitable interests in land frustrating the intentions of donors of powers of attorney who may not appreciate the legal niceties. For example, A and B are a married couple who own their own house. In creating a power of attorney A may refer to “my house” even if it is jointly owned, but even if he says “our house” he is unlikely to make it clear whether he is referring to his legal interest, which he holds as trustee, or his equitable interest of which he is the beneficial owner.

51.Subsection (1) provides that a reference to land (as defined in section 11(1)) in a power of attorney includes a reference to every estate and interest (whether legal or equitable) which the donor has in that land for the time being.

52.Subsection (2) provides that the donor of a power of attorney may exclude or restrict the effect of subsection (1) by expressing a contrary intention in the power.

53.Subsection (3) limits the rule of interpretation to powers of attorney granted after the commencement of the Act.

54.Section 11 defines ‘land’ and ‘enduring power’ for the purposes of the Act. The definitions are set out in the glossary.

Commencement

 

55.Sections 1 - 12 will come into force on such date as the Lord Chancellor may appoint by order.

Hansard References

 

56.The following table sets out the dates and Hansard references for each stage of this Act’s passage through Parliament.

StageDateHansard referenceHouse of LordsIntroduction3 December 1998Vol. 595 Col. 6052nd Reading11 January 1999Vol. 596 Cols. 11-20Committee2 February 1999Vol. 596 Cols. 1421-3Report2 February 1999Vol. 596 Cols. 1421-3Third Reading9 March 1999Vol. 598 Cols. 125-9House of CommonsIntroduction9 March 1999–2nd Reading Committee17 March 19992nd Reading Committee Hansard2nd Reading14 June 1999Vol. 327 Col. 115 (formal)Committee (SCF)22 June 1999Standing Committee F HansardThird Reading14 July 1999Vol. 335 Cols. 534-6

 

Royal Assent – 15 July 1999House of LordsHansard Vol.604 Col.601House of CommonsHansard Vol.335 Col.648

 

Annex A: Section 10 of the Power of Attorney Act 1971

 

“Effect of general power of attorney in specified form

10 (1.Subject to subsection (2) of this section, a general power of attorney in the form set out in Schedule 1 to this Act, or in a form to the like effect but expressed to be made under this Act, shall operate to confer -

(a.on the donee of the power; or

(b.if there is more than one donee, on the donees acting jointly or acting jointly or severally, as the case may be,

authority to do on behalf of the donor anything which he can lawfully do by an attorney.

(2.

Subject to section 1 of the Trustee Delegation Act 1999

, this section does not apply to functions which the donor has as a trustee or personal representative or as a tenant for life or statutory owner within the meaning of the Settled Land Act 1925.”

Note: text in italics denote amendment introduced by the Act

Annex B: Glossary of Terms

 

• Beneficial Interest: the rights of a beneficiary in respect of property held under a trust for him or her.
  
• Beneficiary: a person entitled to benefit from a trust.
  
• Charge: an interest in property creating a security for the performance of an obligation: for example, a mortgage of land may secure an obligation to repay a debt.
  
• Conversion: the doctrine of conversion states that where land is held on trust for sale, the interests of the beneficiaries are deemed to be interests in the proceeds of sale, even before the land has been sold. Treating interests in land in this way simplified conveyancing but produced artificiality and inconsistency in relation to the categorisation of interests as interests in land or in the proceeds of sale.
  
• Conveyance: in general terms a conveyance is a legal document (other than a will) which transfers property. It is defined in the Law of Property Act 1925 s 205(1)(ii) as including a mortgage, charge, lease, assent [an assurance by personal representatives of a deceased person vesting property in the person entitled], vesting declaration [a declaration in a deed appointing new trustees that the property vests in the trustees], vesting instrument [a deed vesting settled land], disclaimer, release and every other assurance [a disposition and transfer] of property or an interest therein by any instrument, except a will.
  
• Deed : is a written document executed with the necessary formality (Law of Property (Miscellaneous Provisions) Act 1989 s 1).
  
• Donee: the person who is given authority under a power of attorney.
  
• Donor: the person who gives a power of attorney to a donee.
  
• Enduring Power of Attorney: a power of attorney made in accordance with the Enduring Powers of Attorney Act 1985. An enduring power may be effective notwithstanding the mental incapacity of the donor. In the Act “enduring power” is defined by reference to the Enduring Powers of Attorney Act 1985, which provides in particular that an enduring power must be granted in the prescribed form and be executed in the prescribed manner by the donor and the attorney (Enduring Powers of Attorney Act 1985 s 2(1)). The present prescribed form is set out in the Enduring Powers of Attorney (Prescribed Form) Regulations 1990 SI 1990/1376.
  
• Equitable Interests: all interests in land which are not legal interests are equitable interests. The rights of the beneficiaries against the trust assets are equitable interests.
  
• Execution: describes the way in which a person signs or seals (in the case of a corporation) a document and gives it legal effect.
  
• Instrument: a formal legal document.
  
• Interests in land: rights of ownership of or over land are interests in land. Interests may be estates, interests or charges (although an estate is simply a special kind of interest). These may be legal or equitable. See also equitable interests and legal interests.
  
• Land: land is defined in the Trustee Act 1925 as land of any tenure, and mines and minerals, whether or not severed from the surface, buildings or parts of buildings, whether the division is horizontal, vertical or made in any other way, and corporeal hereditaments [rights in property which may be inherited]; also a manor, an advowson [a right to present a clergyman to a benefice], and a rent and other incorporeal hereditaments, and an easement [a right over land for the benefit of other land, such as a right of way], right, privilege, or benefit in, over, or derived from land, (Trustee Act 1925 s 68(6) as amended by the Trusts of Land and Appointment of Trustees Act 1996 s 25(2) and schedule 4).
  
• Legal interests in land: today, the only legal estates are those for either a fee simple absolute in possession or a term of years absolute: in broad layman’s terms a freehold or a leasehold. See Law of Property Act 1925 ss 1(1) and 205(1)(x). The other types of legal interest and charge are relatively few (Law of Property Act 1925 s 1(2)). All other interests are equitable interests (Law of Property Act 1925 s 1(3)). In relation to a trust of land, the trustees hold the legal estate. Third parties will usually want to acquire the legal interest free of the rights of the beneficiaries under the trust.
  
• Overreaching: to overreach an interest on a disposition of property means to dispose of the property free of that interest. It is a mechanism whereby the rights of a beneficiary in trust land are detached from it and transferred to the proceeds of the sale of land, via the doctrine of conversion, enabling property to be sold where appropriate.
  
• Power of Attorney: a power of attorney is both the authority given by one person (‘the donor’) to another person (‘the donee’ or ‘attorney’) to act for the donor in a transaction or a series of transactions or in the management of his or her affairs and the document by which that authority is given. Under the law of England and Wales a power of attorney made by an individual must be executed as a deed (Powers of Attorney Act 1971 s 1(1)).
  
• Purchaser: is defined in the Law of Property Act 1925 as a person who, acting in good faith, acquires an interest in, or charge on, property for money or money’s worth (Law of Property Act 1925 s 205 (1)(xxi) as it applies to Part I of that Act).
  
• Settled land: land held or deemed to be held on trust (usually referred to as a settlement) subject to the terms of the Settled Land Act 1925. Trusts of this kind may now only be created in exceptional circumstances (see Trusts of Land and Appointment of Trustees Act 1996 s 2 and schedule 1). Such trusts were used in relation to land in which two or more beneficial interests were to exist in succession to one another. See Settled Land Act 1925 s 117(1)(xxiv).
  
• Trustee function of the donor: a trustee function of the donor is one the donor has as a sole trustee or one he or she exercises jointly with fellow trustees.
  
• Trust and trustee: a trustee is a person who has property or rights which he holds or is bound to exercise for or on behalf of another or others, or for the accomplishment of some particular purpose or purposes. He or she is said to hold the property on trust for that other or others, or for that purpose or purposes.
  
• Trust corporation: a trust corporation is one of certain companies with a large paid up capital, or one of certain officials. The most commonly encountered trust corporation is perhaps an executor and trustee company owned by one of the major banks or financial institutions. The term is defined in the Trustee Act 1925 (s 68(1) para (18) which definition was extended by Law of Property (Amendment) Act 1926 s 3).
  
• Trust for sale: a trust imposing a duty on the trustees to sell property subject to the trust and to hold the net proceeds of sale for the beneficiaries. Before the coming into force of the Trusts of Land and Appointment of Trustees Act 1996, a statutory trust for sale was imposed on co-owned land other than settled land (Law of Property Act 1925 ss 34 - 36 before amendment by the 1996 Act).
  
• Trust of land: a trust of land is any trust of property which consists of or includes land subject to exceptions for settled land and land to which the University and College Estates Act 1925 applies (Trusts of Land and Appointment of Trustees Act 1996 s 1).
  
• Trustee: See trust and trustee.
  
• Trustee function means the trusts, powers and discretions vested in the donor as trustee (Trustee Act 1925 s 25(1); Trusts of Land and Appointment of Trustees Act 1996 s 9(1).
  

 

From all of the above....all you need is this:

 

50.Section 10 creates a general rule of interpretation in relation to the extent of the authority conferred by a power of attorney in relation to land. The new rule provides that, in powers of attorney created after the commencement of the Act, a reference to land includes, subject to any contrary intention in the power of attorney, a reference to all the interests of the donor of the power of attorney in the land at the time that the donee acts. This new provision prevents the technical distinctions between legal and equitable interests in land frustrating the intentions of donors of powers of attorney who may not appreciate the legal niceties. For example, A and B are a married couple who own their own house. In creating a power of attorney A may refer to “my house” even if it is jointly owned, but even if he says “our house” he is unlikely to make it clear whether he is referring to his legal interest, which he holds as trustee, or his equitable interest of which he is the beneficial owner.

 

You will need as I say to print of the first page of the TDA 1999 - just to show the Judge that the extract is taken from that Act.

 

This will clearly make it evident that SPML have no statutory provision to be going around boasting that they sold the beneficial interest as separate from the legal interest.....they have managed to create an all together legal oddity....bless em : )

 

Apple

[applecart]

oooh before I forget..............

 

I would just quickly say, just so as you know....SPML failed to secure any interest in your estate Alisiono ----- because they didn't execute the deed...so they passed nothing on to Eurosail at all....

 

Apple

[applecart]

Here you go Alisono.... the link to the Proprty Chamber Application form:

 

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=3097

 

You must complete it, it is pretty straight forward

 

In section '4' - REMEDY SOUGHT...copy and paste this:

 

The Applicant seeks remedy by way of an order within the provisions of the Chambers jurisdiction pursuant to section 108 (2)(a) LRA 2002 to:

 

a) Set aside the mortgage deed

b) rectify the register by removal of SPML's registered charge/mortgage

c) Rectify register to sole name of applicant

d) Indemnity and consequential damages

 

The remedy sought is pursuant to paragraph 5 (a) of Schedule 4 to the LRA 2002 subject to the application satisfying the additional requirements set out in paragraph 6 (2) of schedule 4 to the LRA 2002. The request for indemnity to be determined pursuant to paragraph 1 (b) of Schedule 8 LRA 2002

 

That should do it : )

 

Hope this helps?

 

Apple

[p.j]

hi sorry to butt into this thread i was asking some questions the other day to hi is it me on the same situation but it was moved and a new thread was started.

i am in the same situation i was told by hi is it me to obtain my full deeds of which i have done just waiting for the deed to be sent.

 

i have a court date from preferred who want to go for a possession order we also get letters from acenden who was capstone but original mortgage was taken out with regency in 2006 and on the deeds i got off line say preferred have a charge on the property i also received from TLTsolicitors a copy of there deeds with just my signature and a friend who witnessed the signing.all this is strange to me as i am no banana i would like to know how to find out if my mortgage was sold on how to find out who my lender is as acenden say they are not obliged to say and this was under a sar (subject to access request) i am confused by all there different letters they are sending and also there refusal for me to bring the account up to date by paying before it goes to court as my debt is just under £1500 the only reason i have held back payments is they have put charges onto the contractual payments and will not give me a true breakdown of the contractual payments without charges.

[applecart]

hi sorry to butt into this thread i was asking some questions the other day to hi is it me on the same situation but it was moved and a new thread was started.

i am in the same situation i was told by hi is it me to obtain my full deeds of which i have done just waiting for the deed to be sent.

 

i have a court date from preferred who want to go for a possession order we also get letters from acenden who was capstone but original mortgage was taken out with regency in 2006 and on the deeds i got off line say preferred have a charge on the property i also received from TLTsolicitors a copy of there deeds with just my signature and a friend who witnessed the signing.all this is strange to me as i am no banana i would like to know how to find out if my mortgage was sold on how to find out who my lender is as acenden say they are not obliged to say and this was under a sar (subject to access request) i am confused by all there different letters they are sending and also there refusal for me to bring the account up to date by paying before it goes to court as my debt is just under £1500 the only reason i have held back payments is they have put charges onto the contractual payments and will not give me a true breakdown of the contractual payments without charges.

 

Hi P.J

 

You do not 'butt in' at all, you are welcome - I cannot see that Is It Me will take issue with you on making further enquiry to do with any issue to do with deeds - in fact this thread is dedicated to all things 'deeds'.....and finding out if the deed is void or not....

 

If you have a court date pending; you could use the same approach discussed and provided for Alisono earlier....

 

With regard to getting the documents to see if your lender has securitised your mortgage....take on board that Accenden work for 'Preferred'; 'Aliance & Leicester'; 'SPML' and possibly others too........Accenden are the 'administrators' for the SPV....so it is safe to say and assert that if Accenden are involved in any way shape or form......your purported 'mortgage' has definitely been securitised....

 

You say you have a copy of the 'Deed'.......please advise which lenders name is showing on it?

 

Then, please advise is it the same lender that shows on the title?

 

How much time do you have before your court date with the lender?

 

Apple

[p.j]

hi applecart thank you for your comment.

 

ok from the beginning it was regency then went to preferred then to capstone then to acenden on my title deeds i obtained on line shows preferred as a charge and somewhere it metioned spml as lender i am just looking through all the paperwork what i got through sar. my date is 16th of october. i have not got a full copy of the original deeds just a short one i have applied for the full one not yet received it as yet but my payments show as spml on my bank statements which is confusing ?

[applecart]

hi applecart thank you for your comment.

 

ok from the beginning it was regency then went to preferred then to capstone then to acenden on my title deeds i obtained on line shows preferred as a charge and somewhere it metioned spml as lender i am just looking through all the paperwork what i got through sar. my date is 16th of october. i have not got a full copy of the original deeds just a short one i have applied for the full one not yet received it as yet but my payments show as spml on my bank statements which is confusing ?

 

Yes, it does appear confusing....let me try to break it down to see if I understand what going on here - ok?

 

You originally had a loan with 'Regency'

You then 're-mortgaged' or let's say took a loan from 'Preferred' who replaced 'Regency' ....so that 'Preferred' became your lender

You then subsequently took out a loan with 'SPML' so that they are now your lender....

 

Since being with 'Preferred'...your loan was first administered to by 'Capstone'...then administered by 'Acenden'

 

...Please note...Capstone simply changed there name to Acenden - they are one and the same company.

 

I can imagine that on the surface that it is 'SPML' then who has made the claim for possession?...please confirm??

 

What do you mean when you say you only have a 'short copy' of the deed and 'not a full copy of the original deeds'?...please explain??

 

Apple

[p.j]

hi applecart my original mortgage was with regency they then changed to preferred never took second mortgage out.this is what they say is the mortgage offer was with regency mortgage corporation ltd but they say the offer is through preferred through regency this is highly confusing because i signed in 2004 with regency. and then preferred appeared 2006 on the deeds but the most confusing of all is they use the same address for all correspondence to them.

when i say short deeds from LR i paid 3 pounds for it it just shows proprietor me and proprietor as preferred mortgages too under the charge

[UNRAM]

Apple,

 

I called the Chamber this morning and an adjudicator confirmed the judge has considered the application and is opening up a file. I have no further details as yet but I will update when I receive a written confirmation next week. When asked about duration of the case the adjudicator said "no way of telling these things have a life of their own..."

 

If I sell the property before a determination is reached the lender is surely going to take the proceeds from the estate to settle its purported debt. Can I modify an application already submitted to say that if the property is sold before the case is disposed and the lender benefits from proceeds of the sale to settle the debt (which they certainly will) that I seek that the Chamber enforce compensation for the proceeds and consequential damages if it is determined that they had no rights to the estate?

 

Is there a more meaningful way of putting this to back it up with with statutory references?

 

couple more questions...

 

1. what would constitute 'reasonable consequential damages'?

2. would i be entitled to the total interest payments I have made to the lender under the terms of their "subscription"?

[applecart]

hi applecart my original mortgage was with regency they then changed to preferred never took second mortgage out.this is what they say is the mortgage offer was with regency mortgage corporation ltd but they say the offer is through preferred through regency this is highly confusing because i signed in 2004 with regency. and then preferred appeared 2006 on the deeds but the most confusing of all is they use the same address for all correspondence to them.

when i say short deeds from LR i paid 3 pounds for it it just shows proprietor me and proprietor as preferred mortgages too under the charge

 

Hi P.J

 

Gotcha.....so, it's preferred who are currently showing on the title register as the 'owner' of the 'mortgage'....

 

What you have is a copy of the 'title register'......(these are available by downloading from the HMLR website) - that is not the same thing as 'an official copy of the Deed'.

 

You will need to send off for a copy of your deed from the Land Registry and pay a fee...£11.00 (I think it is)

 

You will need to complete an OC2 form - download a copy here: http://www.landregistry.gov.uk/public/forms

 

If you do it today, it should be with you by Monday/Tuesday next week - hopefully.

 

You will not be able to go on-line to get an 'official' copy of the deed. You must send off for it I'm afraid.

 

You may have a copy in the info pack they sent to you...or they may have sent you one as party to court proceedings.....??

 

Once you get a copy of your deed - just let us know if it only has your signature alone on it....

 

If I have understood you correctly, it should be 'preferred' showing on the deed - it may be of course that at some point between 2004 and 2006; Regency sent you notice that they were transferring your mortgage to 'preferred'...which will explain why it is that Capstone/Acenden are administering the 'mortgage'....??

 

I take it your estate was a registered 'freehold' estate when you took out the loan with 'Regency'??

 

I take it that the claim for possession is being made by 'preferred' then??.....

 

Please advise...

 

Apple

[applecart]

Apple,

 

I called the Chamber this morning and an adjudicator confirmed the judge has considered the application and is opening up a file. I have no further details as yet but I will update when I receive a written confirmation next week. When asked about duration of the case the adjudicator said "no way of telling these things have a life of their own..."

 

If I sell the property before a determination is reached the lender is surely going to take the proceeds from the estate to settle its purported debt. Can I modify an application already submitted to say that if the property is sold before the case is disposed and the lender benefits from proceeds of the sale to settle the debt (which they certainly will) that I seek that the Chamber enforce compensation for the proceeds and consequential damages if it is determined that they had no rights to the estate?

 

Is there a more meaningful way of putting this to back it up with with statutory references?

 

couple more questions...

 

1. what would constitute 'reasonable consequential damages'?

2. would i be entitled to the total interest payments I have made to the lender under the terms of their "subscription"?

 

Hi UNRAM

 

We know for sure that the ‘draft written representation’ is on point to generate such a response from the Chamber ….…so, your confirmation is much appreciated….that’s brilliant news.

 

I suppose we can now rely and say that the ‘draft written representation’ is …..’THE BORROWERS TEMPLATE’

 

 

My immediate thought is that it would not make sense to sell the property whilst you are essentially in ‘dispute’ with the lender.

 

In much the same way that your Lender has to wait until the Chamber determines the issues …..so, will you have to wait….

 

If a sale did go ahead…….You are right, they would benefit from the proceeds of any sale you invoke at this stage…..

 

Your task is to ‘mitigate’ your loss…..not increase it…a sale would increase your potential losses…..that is not something the Chamber would take lightly….The Chambers time is precious…try not to waste their time…ok….you made the application secure in the knowledge that you want the lenders name off your title didn’t you???

 

By selling your home, you would not be seen to be mitigating your losses…..

 

Likewise, a potential buyer would be embroiled in the battle……

 

You should hold off any sale of the property whilst proceedings are being ensued.

 

If all you wanted to do was ‘sell’ you house anyway, then perhaps you should not have visited this thread…..

 

As you know UNRAM…this thread is dedicated to those who merely look to the Chamber to rubber stamp for all Borrowers that the Lenders deed IS void….

 

Hope this helps?

 

I will address the two questions posed separately....

 

Apple

[applecart]

1. what would constitute 'reasonable consequential damages'?

 

Your speaking of ‘restitution’…..(Halsbury Law – Tort Act) that means you are entitled to be put back in the position you were in before the lenders wrongful interference with your estate…i.e all the ‘mortgage’ payments you made to them…your legal estate free from their encumber…and the amount of ‘damages’ payable would be determined by the Chamber or a court of law…it could amount to thousands of pounds….each case would be judged on its own merit….

 

If you sold your house, then any restitution would be limited due to your conduct….two wrongs don’t make ‘right’….if due to your own ‘lack of due care’ you knowingly sell the house, knowing that your lender will benefit in the middle of proceedings…then that loss will not be recoverable……the lender will and should rightly argue that you suffered no loss in that regard…….

 

However, let’s say you were not aware of this site…or anything to do with the deed being void… and your home was repossessed by a lender off the back of a void deed…then……oooooh…..the consequential loss and damages would be a lot greater….for the consequential loss is greater….and so would the claim for damages increase.

2. would i be entitled to the total interest payments I have made to the lender under the terms of their "subscription"?

 

Yes.

 

Others may have more to add or indeed take away from what I have said above??

 

Apple

[alisono]

Good Morning Applecart,

I cant thank you enough.

Was the paste above of the trust deed correct for me to print out?

I have now done the letter to the Court, copied and tailored the Grounds for Application and downloaded the application form.

I may being a little slow here, so sorry.

do I send all to the Court?

A copy to SPML and where so I send this to it's registered office or Acenden's solicitors or Acenden themselves.

Do I send all the documetation including the court letter to the Property Chamber? as I cant see an address for application on the link?

Sorry to be a pest but I want this to be spot on.

Thanks again I really really appreciate your help with this.

[UNRAM]

Thanks for your feedback,

 

I don't understand how selling the property our of necessity and due to personal circumstances can be considered a "wrong" or "lack of due care". Selling property to meet changing personal circumstances is a normal part of life. I have evidence of dispute over title and negotiations for settlement that started long before discovering this thread that expressed my intention to want to avoid legal remedy.

 

I included a statement in the Chamber application that it is my intention to sell for the aforementioned reasons and I have requested that in the event of a sale that a determination is reached in principle. I have disclosed all facts and as such I don't believe I am wasting time. As you say, each case is different. Out of the world of abstract charges and loans we all have lives to lead...

 

You said "if due to your own ‘lack of due care’ you knowingly sell the house, knowing that your lender will benefit in the middle of proceedings…then that loss will not be recoverable... the lender will and should rightly argue that you suffered no loss in that regard"

 

how is this possible that I suffered no loss when I have made prior claim that the lender had no entitlements to the estate - or the proceeds?

Edited September 25, 2013 by UNRAM

[UNRAM]

Can I amend an already-submitted application to include a claim for restitution and compensation if the property is sold ahead of a determination? At present I have requested only a decision in principal under these conditions (that I may use as evidence for a separate claim) but if possible it makes sense to include this in the initial application. I at least want to claim back the (real) money I have paid them since I started making payments in 2007.

[UNRAM]

In terms of mitigating my losses is not the case that anything the lender claims up to the point of a sale or repossession of the estate is my loss if it is proven after the sale that the lender had no interest in the estate at the time of sale as was submitted to the Chamber (before the sale occurred). Is there no retrospective application of the law in this respect when an application precedes the sale of a property. A repossession is only a sale of property by the lender to take the proceeds of sale to settle the purported debt. Whether sale is initiated by lender or owner does not change the material facts of the underlying legal entitlements to the proceeds. Why is the seller being discriminated against - is (s)he not also subject to the same injury as the person whose property is repossessed (i.e. sold) by the lender?

 

A void deed is just that - void - before or after a sale. Surely the lender cannot hold on to equity which was not simply not theirs to take. We are after all asserting that they have no interest in the property now... today... not after the Chamber's decision...

Edited September 25, 2013 by UNRAM

[UNRAM]

I hope that consideration of my circumstances may serve to demonstrate that the assertions made in this thread are not limited to a defense against repossession.

Edited September 25, 2013 by UNRAM

[p.j]

hi applecart thanks for your reply i received my full deeds this morning and also the same deeds have been sent via there solicitors and it only has my signature on it and a witness i had who is a friend no one official.i also received this morning a true breakdown of my contractual payments without there inflated charges and its a lot less than they say for possession so the rest is charges to make it look bad at court.

and yes preferred is my lender so who owns my mortgage ?property is leasehold.

 

thank you for your help on this applecart.

[applecart]

Good Morning Applecart,

I cant thank you enough.

Was the paste above of the trust deed correct for me to print out?

 

Sorry Alisono, I don't recall posting up a 'trust deed'?....If you are referring to the link to the Property Chamber...then that is the 'Application Form'.....that you need to complete.... the 'Grounds' will be attached to that document and sent to the address shown at the end of the application form itself......KEEP a Copy of the whole application including the grounds....you will take this to court with you when you attend next week....but the application must be sent off to the Chamber without further delay....send it recorded delivery and keep the recorded delivery receipt

 

I have now done the letter to the Court, copied and tailored the Grounds for Application and downloaded the application form.

 

Great, do your best to ensure all your paper work is set it out clearly and neatly.... dog chewed pieces of paper will not do... : )

 

I may being a little slow here, so sorry.

 

do I send all to the Court?

 

No......, only send the 'letter' to the court by recorded delivery.... and send a copy of the 'letter' you are sending to court to SPML - recorded delivery also.....keep receipts for both and keep a copy of the letter for yourself to take to court with you ....

 

A copy to SPML and where so I send this to it's registered office or Acenden's solicitors or Acenden themselves.

 

Send the letter to the Solicitors...they are acting on behalf of SPML....their address will/should be in the particulars of claim or on any letter they may have sent to you..

 

Do I send all the documetation including the court letter to the Property Chamber? as I cant see an address for application on the link?

 

The application...along with a copy of the 'deed'....the 'grounds' and any other documentary proof upon which you intend to rely must be included with the application.....the letter can be relied upon as 'proof' that you have informed both the lender and the county court that you are making the application.....this shows you are doing your best to limit any loss.....Think carefully about all the kinds of 'evidence' that you can submit with your application......you could attach 'extracts' from the case law referred to in the 'grounds'.....a copy of the letter that SPML sent you confirming they sold the beneficial interest....all such things will provide evidence of wrongful interference and assist justify your claim for indemnity......

 

Sorry to be a pest but I want this to be spot on.

 

Don't worry, I fully understand.... I just hope that I have done enough to explain the steps you need to take.... : )

 

Thanks again I really really appreciate your help with this.

 

Don't worry.... you are doing all you can to cover your back either way......Oh, do not rule out preparing the 'income and Expenditure' sheet - just in case you are led during the hearing next week rather than leading the hearing.......What I mean is...... the court is a daunting place.....but, you have to be focused when you get there....make sure you get your say and ask for what YOU want to be done.....not be led into what THEY want done...ok : )

 

A lot now depends on you......best of luck : )

[IS IT ME?]

well well applecart,

Are you sitting down??? because I had too!

I have just had a telephone call and I DO NOT know if it was for real or just a wide up?? it went like this.

Lady Mr;;;;;;

me Yes

lady I have a call for you, Man comes on the phone.

Me Who are you and where you from

Man I would like to keep this of the record for now

Me but if I don't know who you are I am not saying any thing sorry,

Man Its about your claim with ?????? Lender and the property chamber

NOW CAN'T GET TO RECORDER.

Me well its with them so lets see what happens as I have told you no phone calls every thing in wirting.

Man what are you looking for?

Me You know full well what is before the chamber

Man well we can end this now if you agree as agent for Mr;;;; and Mrs;;;;;;;

Me sorry it doesn't work like that you had your time in court.

Man well I can get all the arrears and a lower interest rate if you agree now.

Me sorry its not yours to give any thing so I am ending this now and as you will not give any details I have no more to say.

Man well we can not let you win this you know that.

then went on about other cases but I just put the phone down when I tried to get the number back for 1471 it came up as number withheld.

No one other than the lender their solicitors or court have my number so your guest is as good as mine on what is going on here.

[applecart]

I hope that consideration of my circumstances may serve to demonstrate that the assertions made in this thread are not limited to a defense against repossession.

 

Hi UNRAM

 

I think it is more than acceptable for you to write to the Chamber and ask them the questions you ask here.....or simply contact them by telephone.....

 

I hope you will appreciate that I cannot truly comment more than what I have said above because I did not see your application and I had no idea that you had amended your application to the extent that you were seeking a decision in 'principle'.....subject to the sale of your house...

 

I can only suggest that you explore the avenue .... and be good enough to post back here anything that you find out in case others wish to follow the same route : )

 

Although, I personally do not advocate selling a house that will clearly stand to benefit a lender.....

 

Apple

[applecart]

hi applecart thanks for your reply i received my full deeds this morning and also the same deeds have been sent via there solicitors and it only has my signature on it and a witness i had who is a friend no one official.i also received this morning a true breakdown of my contractual payments without there inflated charges and its a lot less than they say for possession so the rest is charges to make it look bad at court.

and yes preferred is my lender so who owns my mortgage ?property is leasehold.

 

thank you for your help on this applecart.

 

Thank you for coming back to me so swiftly.....

 

I just need to check something out before I come back to you if that's ok......hopefully I won't be too long : )

 

Apple