Mortgage Deed - Does it need to be signed by the lender ?

[applecart]

I think we lose sight of the importance of a Deed in conveyance; a conveyance is not 'contractual' - this is why section 2 of the lp(mp) Act 1989 does not apply.

 

A Deed is the instrument that conveys an interest in land by way of legal mortgage - this is due to statute - not contract/agreement rights as would be the case for section 2 to apply.

 

Therefore it not only acts as security for the lender for the purported loan amount but also conveys a right for the lender to charge the estate with indebtedness and infers a right to possession etc etc...LRA 2002 s.23 (2)

 

Lets not forget that for the Borrower, the Law implies a right to redeem, a term of years absolute, and protections by virtue of the AJA 1978 etc, etc - it may even as Ben has stated previously; grant a right to the Borrower for further advances etc etc...

 

Against this - If we are to accept that the Mortgage Deed is a unilateral document, that for validity need only to be signed by the grantor (Borrower) - we would be accepting that Delivery is not party to the formality or validity of the Deed - and that the Lender, does not obligate to any of the legal implications in regards to the term of years, rights to redeem etc etc - we are essentially being asked to accept that when the Borrower signs the Deed and his solicitor attests it...that there are non of these obligations due from the Lender.....

 

Therefore I cannot see how a unilateral Deed in relation to a mortgage is possible at all...

 

Law of Property (Miscellaneous Provisions) Act 1989 s.1 (3) is the part that relates to the Borrower and states that:-

 

In the case of a deed executed by an individual it is provided, so far as is presently material, by Law of Property (Miscellaneous Provisions) Act 1989 s.1 (3) that:-

 

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

(a)it is signed—

(i)by him in the presence of a witness who attests the signature; or

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

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

 

We should not lose sight of the importance of the word 'delivered' the Judgment in Bibby Financial Services Ltd v Magson points us to the fact that 'Delivery' goes back some 400 yrs - Delivery involves acceptance - if it is not 'accepted' then it is simply not 'Delivered'.

 

To accept that a Deed is unilateral we are taking the word 'delivered' to be no more than a 'handing over' of the Deed via a solicitor to the Lender - This does not accord with the legal concept of 'delivery' as intended by the legislator at either the LP(MP) Act 1989 or the LPA 1924 s.74A

 

The Lender is obligated to execute the Deed much the same as the Borrower - LPA 1925 s.74A confirms this at section (1) in direct reference to section 1 (2)(b) LP(MP) Act 1989:

 

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

(a) it is duly executed by the corporation and

(b) it is delivered as a deed

 

 

The following is taken from the Judgment in 'Bibby Financial Services Ltd v Magson':

 

"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. What amounts to delivery of a deed in English Law has been established for over 400 years. It was explained by Popham J in Hawksland v Gatchel (1601) Cro.Eliz.835 at pages 835 - 836:-

 

'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'..

 

The critical thing is that the person who has signed the deed must have separately indicated that he intends to be bound by the deed. Mere signature is not enough, nor is it enough that what looks like a deed has been given to the person who appears to be the beneficiary of it - the issue is not whether the document has been physically handed over to the beneficiary, but whether the person whose deed it is supposed to be intended to be bound by it. The point was explained by Sir Charles Hall V.C in Watkins v Nash (1875) LR 20 Eq 262 at page 266:-

 

'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 complete delivery, that not being the intent of the persons who executed the instrument'."

 

 

The Lending practices of recent times rely that 'delivery' simply does not take place. Remember we are living in times where mortgages are bundled and sold on the primary and/or secondary markets, such practices require that the Deed signed by the Borrower remains in 'escrow' - '..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 it was to be something different, then you must not give effect to the delivery as being complete delivery, that not being the intent of the persons who executed the instrument'

 

 

Apple

 

Good Morning Apple

 

I feel that both 74A of the Law of Property Act 1925 and section 1 (2b) of the of the LP (MP) 1989 as you have quoted above both are when the corporation gives its deed and not when it receives a deed.

 

Your quote from Hawksland v Gatchel (1601) refers to delivery and 'my deed'. In the case of a mortgage it is the borrower giving his deed to the lender.

 

"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'..

 

The lender does not give his deed to the borrower.

 

Even your reference to Watkins v Nash (1875) is about delivery to the grantee - being a mortgage deed the grantee is the Lender

 

'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 complete delivery, that not being the intent of the persons who executed the instrument'."

 

In relation to your assertion about escrow.

 

The document will only remain in escrow until such a time as the escrow conditions set by the person giving his deed have been performed. Once those conditions have been performed, it becomes his deed.

 

116. In my view the relevant facts place the Settlement Deed firmly in the second of the three categories identified by Nourse LJ in Longman v Viscount Chelsea. This was an escrow. In other words, the Settlement Deed, when sent by Memery Crystal, in accordance with their instructions, to King & Spalding on 21 July 2009 was in the class of document described by Farwell LJ in the Foundling Hospital case (at p 377) as one which is "delivered upon a condition on the performance of which it will become a deed, and will take effect as from the delivery". The conditions, and the only conditions, upon which the Settlement Deed was delivered were those set in the e-mail sent at 5.01 p.m. on 21 July 2009 by Memery Crystal to King & Spalding to which it was attached, namely, first, that it was to be signed for Silver Queen, and secondly, that it was then to be sent back to Memery Crystal. Those conditions had both been discharged when King & Spalding's e-mail of 4.04 p.m. on 22 July 2009 was sent to Memery Crystal, whereupon the Settlement Deed took effect as a deed. Thus the escrow conditions were promptly discharged, and there is no room in the present case for any argument that their performance was unreasonably delayed (see Harman LJ's caveat in Beesly v Hallwood Estates (at p 118)). Being irrevocable from the time of its delivery as an escrow, the Settlement Deed could not be recalled by PPS pending its taking effect. Thus PPS's purported withdrawal "from the exchange of the settlement agreement" in Memery Crystal's e-mail of 8.15 a.m. on 22 July 2009 was not, and could not be, an effective revocation of it.

 

In terms of a mortgage deed, what escrow conditions are set by the borrow to keep the document in escrow ?

 

Unlike in the above case, the person giving his deed (the borrower) does not impose the condition that the deed must be signed by the lender.

 

 

[applecart]

There are 4 parts to s.1 (3) of Law of Property (Miscellaneous Provisions) Act 1989 - the important part for the Borrower is the issue of 'Delivery' - to make light of this legal requirement would in effect stand to repeal the intent of the legislator - the question begs...where there is statute - do we need to refer to common law?

 

These are:

 

(a)it is signed— we can agree that all borrowers comply with this legal requirement - albeit the 'it' element remains at issue

(i)by him in the presence of a witness who attests the signature; or - we can agree that all deeds will be attested by a Solicitor in most cases

(ii)at his direction and in his presence and the presence of two witnesses who each attest the signature; and we can agree that where the Borrower does not have the capacity to sign for whatever reason, this will be complied with in one way or another..

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

 

s.1 (3) (b) requires that 'it is delivered as a deed by him' this is not the same as 'signed as a deed by the Mortgagor' - are we to presume that this is to be interpreted as 'delivered as a deed by him' - to comply with statute - or is this the presumption?

 

You will then find in most Deeds signed by Borrowers that there will be space for the Lenders signature - but no signature - are we to presume that the 'blank' space is somehow to be construed as the Borrowers compliance with statute in relation to: 'delivered by him as a deed'

 

To 'sign as a deed' is not the same as 'delivered as a deed'

 

I mean no dis-respect to Steampowered when I say, ....Given that the 1989 Act has not been repealed - it doesn't seem right somehow to suggest that 'delivery' is a "very limited concept" when statute provides a contrary intention.

 

Further to that point....LP(MP)Act s 1 (4) states "In subsections (2) and (3) above “sign”, in relation to an instrument, includes making one’s mark on the instrument and “signature” is to be construed accordingly" with respect, there is no interpretation here that the signature of the Borrower is to be construed as 'delivery' - section 1 (3) (b) is a separate 'stand alone' legal requirement as intended by the legislator.

 

When we look at LP(MP)Act s 1 (10) this too makes no inference that the Borrowers signature is to be construed as a unilateral deed to confer that the Borrowers signature is to be presumed as a 'delivery' in favor of the Lender: - "The references in this section to the execution of a deed by an individual do not include execution by a corporation sole and the reference in subsection (7) above to signing, sealing or delivery by an individual does not include signing, sealing or delivery by such a corporation".

 

The above is statute - there is no need to opine further as far as I can see... if we are to opine at all, we could start by looking into what the legislator means by 'Delivery'?

 

Delivery refers to two separate acts:

 

a) the grantor’s (Borrowers) intent to convey title, not just the physical handing over of the deed to the grantee; and

 

b) the grantee’s (lenders) acceptance of the grant deed as an immediate conveyance.

 

It would seem to me that there must be a valid delivery, meaning that both the owner (Borrower) and the grantee (lender) must intend for the transfer of the estate to be conveyed concurrent with the handing of the deed to the grantee. and the owner of the estate must intend for the instrument that conveys the estate to operate as a deed which immediately divests the owner(borrower) of title before we can presume that the Deed meets statutory requirements of the LPA 1925 s.52 to be valid.

 

So in accepting Steampowered on his valuable points made in reference to 'Bibby' - if you have a Deed signed by a Borrower but not signed by the Lender - and it can be found that the Lender does not intend to sign the Deed until a later date (i.e statements such as:'when all the mortgage monies have been paid by the Borrower', 'the Lender acknowledges receipt in full of the Mortgage Debt' and such like to provide the 'contrary intention') this in simple terms would mean the Borrowers Deed (if I am to accept Ben's points as to who the signed Deed belongs to ) is 'draft' also awaiting completion by the Lender - it is not an effective valid Deed. The Deed is not 'final' until the Lender signs it...

 

Apple

[applecart]

...

Hello Apple

 

In relation to your assertion about escrow.

 

The document will only remain in escrow until such a time as the escrow conditions set by the person giving his deed have been performed. Once those conditions have been performed, it becomes his deed.

 

This is to suggest that the Borrower knew that there would be an escrow condition party to the Deed, there is no suggestion that any Borrower knew this would be the case, for the Borrower to be aware, the deed presented by the Lender as signed by the Borrower would have to show on its face that the Lender required a signature from the Borrower that was to be 'conditional' in some way - in this regard, it is not fair to suggest that it is the Borrowers Deed.

 

The Lender causes the Borrower to perform the Deed when there is an escrow condition in place that the Borrower is unaware of....It cannot be the Borrowers Deed if it is not to have effect at some time in the future. As Powersteamed says....this provides a contrary intention given that the Deed is taken for all intent and purpose is supposed to take immediate effect.

 

In terms of a mortgage deed, what escrow conditions are set by the borrow to keep the document in escrow ?

 

You are coming from the point of view that the Deed is the Borrowers Deed.....The Borrower sets no such escrow conditions - (this is why I said, it is not the 'Borrowers Deed' it is the Deed as presented to him by the Lender' - the 'Borrowers Deed' will show no escrow conditions and he is (made to be) obligated to perform the Deed as from the (purported) completion date. There will be no escrow condition evident in the deed at all.... you would have to seek out the terms and conditions of the agreement to see if there are escrow conditions within it...(these are the Lenders terms and conditions - written by the Lender of which the Borrower is obliged to adhere to - so again, it is not the Borrowers Deed - only that which has been presented to him by the Lender)

 

Unlike in the above case, the person giving his deed (the borrower) does not impose the condition that the deed must be signed by the lender.

 

With the greatest of respect, ...and neither would he get the chance to do so.....the Deeds of which we speak are conducted at arms length, there is no negotiation between the Borrower and Lender as to the content of the Deed that the Lender presents to the Borrower for signature or to the terms and conditions of the mortgage, the Borrower would simply assume that when the Lender gets the copy of his signed deed that the Lender will sign it and submit it to HMLR - notwithstanding this, the legislator is more than aware that Lenders present the Deeds on terms in its own favor, and as we are finding, the Lender does not sign the Deed when he gets it back,.......therefore Borrowers can rely that 'until the condition be performed' is a statutory protection provided for by statute at LP(MP) Act 1989 s.1 (3)(b) - that is to say - the condition is that the Deed be 'delivered' - The Borrower cannot 'deliver' the Deed - he can sign it, get it attested, but has no control over its 'delivery'....

 

Apple

[applecart]

Good Morning Apple

 

I feel that both 74A of the Law of Property Act 1925 and section 1 (2b) of the of the LP (MP) 1989 as you have quoted above both are when the corporation gives its deed and not when it receives a deed.

 

Your quote from Hawksland v Gatchel (1601) refers to delivery and 'my deed'. In the case of a mortgage it is the borrower giving his deed to the lender.

 

"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'..

 

The lender does not give his deed to the borrower.

 

Even your reference to Watkins v Nash (1875) is about delivery to the grantee - being a mortgage deed the grantee is the Lender

 

'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 complete delivery, that not being the intent of the persons who executed the instrument'."

 

 

Thanks

 

Ben

 

Hi Ben'

 

That's correct - 'you (the Borrower) cannot 'deliver' the deed to the grantee (lender) himself....for 'delivery' the Lender must accept the borrowers deed - by signing it as well.

 

In other words the Borrowers signature alone does not constitute 'delivery' - LP(MP) Act 1989 s 1 (3) (b) is lacking when you evince a deed that does not have the Lenders signature on it.

 

Apple

[applecart]

Hi Ben,

 

This feels a bit like 'you say' - 'i say'... : )

 

Your last 2 posts - I would only comment to say: - a) Lord Dennings comments that you refer to, were made in 1970 and clearly refer to signed, sealed and delivered..this was prior to the 1989 Act and referred to for redress within the Law Commission report..... b) the Law Commission Report you posted is from 1987 - at Page 5 - para 2.10 states: 'we therefore somewhat reluctantly recommend that delivery should remain one of the required formalities for a Deed'...

 

We then see within the 1989 Act that s. 1 (3)(b) that 'delivery' does in fact remain a formality by statute.

 

We could argue that the Act specifically states 'delivered by him' - this could mean delivery by the individual .....as the report does relate specifically to the formalities in regard to individuals?

 

Do you have anything that we can refer to for an understanding of the reference to 'delivered by him' Ben?

 

Apple

[applecart]

Don't worry Ben - I have found what I was looking for...

 

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

 

The Regulatory Reform (Execution of Deeds) Order 2005 assists conclude that 'delivery' is necessary...

 

Article 10(2)

SCHEDULE 2

 

REPEALS

 

Chapter Short title Extent of repeal

 

1971 c. 27. The Powers of Attorney Act 1971. Section 7(3).

 

1985 c. 6. The Companies Act 1985. In section 36A— (a)subsection (5); and (b)in subsection (6), the words from “and, where” to “executed”.

 

1989 c. 34. The Law of Property (Miscellaneous Provisions) Act 1989. In section 1— (a) in subsection (3)(b), the words from “by him” to the end;

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

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

 

With the 'repeal' of the words 'by him or a person authorised to do so on his behalf' from s. 1 (3)(b)..... This means that section 1 (3)(b) should simply read 'it is delivered as a Deed'.

 

It remains a formality therefore that the Lender must sign the deed.

 

Apple

[applecart]

Hi Ben

 

I've taken your advise, I didn't need 2 days, but if you deem I should take more time out, please advise in due course : )

 

In relation to your question in this thread, I have moved on the premise that we are talking about execution and delivery of a mortgage deed for its validity pursuant to LPA 1925 s.52.

 

This is possibly why we differ somewhat on our use of the Law in relation to 'Delivery'.

 

I do not lose sight of the question you posed - which is: 'Mortgage Deeds - does it need to be signed by the lender?'

 

Your valid posts herein in the main confirm that there is a 'grey' area.....

 

In my mind we could be more specific.. i.e: Does the Deed need to be validly delivered to constitute a transfer within the provision of LPA 1925 s.52?

 

The answer to that in my mind is: 'YES'

 

I provided the understanding that the act of 'delivery' includes 2 acts:

 

a) the grantor’s (Borrowers) intent to convey title, not just the physical handing over of the deed to the grantee; and

 

b) the grantee’s (lenders) acceptance of the grant deed as an immediate conveyance.

 

If these acts are visible on the face of the deed, then delivery has taken place and the Deed complies with LPA 1925 s.52

 

For this... the document could simply state 'delivered as a deed' or wording to that effect...

 

The Judgment you posted in 'Silver Queen Maritime Ltd v Persia Petroleum Services Plc [2010] EWHC 2867 (QB) (18 November 2010)'....

 

Para 111 states: "There are two sorts of delivery, and only two known to the law, one absolute, and the other conditional,"

I do not see how a Deed that does not show the Lenders signature (i.e a deed in escrow - awaiting the lenders signature at some future date) meets the requirements of the LPA 1925 s.52.

 

I do not see how LPA 1925 s.53 or 54 (just because the document is in writing as opposed to a verbal or oral agreement) would assist the validity of a deed under the LPA 1925 s.52.

 

I do not see how section 2 LP(MP) Act 1989 (that relates to contracts for sale) would do so in reliance on Helden and Eaglestar.

 

Please correct me if you still perceive I am incorrect of course.

 

I gave due consideration to the Law Commission Report you pointed me to and found that at page 5, para 2.10 that whilst it was reluctantantly done, the Law Commission provided that 'delivery' remains an integral part in relation to the execution of deeds and as can be seen in both the 1989 Act and the 1925 Act (when updated and amended) 'it is delivered as a deed' is apparent in relation to both the Borrower and the Lender.

 

The Judgment you posted in 'Silver Queen Maritime Ltd v Persia Petroleum Services Plc [2010] EWHC 2867 (QB) (18 November 2010)' at para 108 - the important words being '"A writing cannot become a deed unless it is signed, sealed and delivered as a deed. Having reached that stage, it is correctly described as having been "executed" as a deed.

 

We both know the 'seal' is no longer required... that leaves 'signed' and 'delivered as a deed' as necessary formalities - so in essence it is not until the document meets both the signatory and delivery requirements by virtue of LP(MP)Act 1989 and the LPA 1925 s.74A that it becomes a valid deed for LPA 1925 s.52 purposes.

 

I do not agree that all Mortgage deeds state that they are 'delivered as a deed' - However I would be fool not to accept that HMLR will register a deed if it states 'signed as a deed' or 'executed as a deed' (practice guide 8) - I also recognise that HMLR is not concerned with the actual validity of the underlying Deed/agreement between the Borrower and Lender in regard to the wordng 'delivered as a deed' that would cause it to meet LPA 1925 s.52 (Practice Guide 39 - Clause 2.2)

 

Again, please correct me if I am wrong on this point.

 

From 'Silver' at para 108:

 

"A deed whether executed by a corporation or by an individual does not necessarily bind the grantor as soon as it is sealed. It only becomes binding when it has been "delivered" by the grantor as his deed, i.e. when the grantor has indicated by words or conduct that he intends the deed which he has executed to be binding on him."

 

At para 109: "… [What] is an escrow? Can a body or an individual having executed a document under seal as an escrow subject to a condition resile before the condition is accepted?..."

 

At para 110: "Two suggestions have been made about the deed, the effect of which we have now to consider. One is that the deed in question was what is called in law an escrow, that is a writing which is to take no immediate effect, but is only to come into operation upon the happening of some condition. The other suggestion is that there was no escrow, in fact that there was no delivery at all of this deed; that it was physically delivered by being handed over, after it had in form been executed by signing, sealing, and delivery, but handed over only to be kept by the agents, the solicitors, for Mr Hoe, and to be dealt with as Mr Hoe should direct. In that case there would be no delivery,..."

 

At para 111: "… There are two sorts of delivery, and only two known to the law, one absolute, and the other conditional, that is an escrow to be the deed of the party when, and if, certain conditions are performed. If the deed operated as a complete delivery, cadit quaestio; if it did not, then it must be either an escrow or a nullity. The mode in which it in fact operated is a question of intention, primarily of the grantor, and secondly of the grantee; nothing passes out of the grantor against his intention, and no one can be compelled to accept an assignment of any property, onerous or otherwise, without his consent. Now an escrow or script is not a deed at all; it is a document delivered upon a condition on the performance of which it will become a deed, and will take effect as from the delivery, but until such performance it conveys no estate at all. …"

 

This is where I am coming from - when I say, the lender is supposed to sign the Deed so that it creates an absolute delivery for the validity of LPA 1925 s.52 to have effect.

 

LPA 1925 s.52 (1) makes it a legal requirement that it is only a Deed that transfers the estate from the Borrower to the Lender - Above, it it clear that a 'escrow or script is not a deed at all'... This is to say, that on evidence that a document purporting to be a deed on its face that is not duly executed by the Lender and the Borrower or that states 'delivered as a Deed on the such and such date' in the absence of the Lenders signature - would not be a Deed.

 

It would be misconceived and distracting to infer that when a lender has not signed a deed, that the deed complies with the LPA 1925 s.52:....para 111 continues thus...

 

"… The questions therefore are: Was the assignment of Hoe ever delivered by him as his act and deed; or as an escrow; or was there no valid delivery at all? …"

 

"Was the deed then delivered as an escrow, or was there no delivery at all?

I doubt if a man, by executing a deed, and handing it over to his own solicitors to be held on his behalf until he gives them further instructions, makes a delivery of it as an escrow at all: I doubt also if a deed can be delivered as an escrow at all subject to an overriding power in the grantor to recall the deed altogether; but Hoe gave no such instructions …"."…

 

Did that document ever become operative by delivery either as a deed to have a present and binding effect as such, or as an escrow, that is, a document to take effect as a deed upon the happening of some event or upon the fulfilment of some condition?

 

In considering these questions the Court has to look at all the facts attending the execution, to all that took place at the time, and to the result of the transaction, according to the language of Parke B. in Bowker v. Burdekin …

 

I am satisfied in the present case that the true inference from the undisputed facts … is that Robert Hoe never intended to make a delivery of this document as a deed to take effect instanter. …

 

I am satisfied also that the defendants are not entitled to rely upon the delivery of the document as an escrow. I doubt whether there was any "delivery" of this deed in the legal sense of that word. According to the letters of September it was to be retained on behalf of Mr Robert Hoe until Mr Hopgood should have instructions to complete it. …".

 

It goes on.....Please see the full judgment here: http://www.bailii.org/ew/cases/EWHC/QB/2010/2867.html

 

If nothing else, we have provided the 'balance' for readers to view as we see it : )

 

Thanks to Steampowered also for his comments - but this 'dead horse' has reached its conclusion on the findings in 'bibby' and 'silver' as substantiated by the Law in relation to formalities in relation to the execution of mortgage deeds herein for now : )

 

Apple

[applecart]

Hi Ben

 

At last we are on the same page.- this is to say that it is s.1 (3)(b) that relates to individuals signing the deed.

 

The question is: 'mortgage deeds - does it need to be signed by the lender?'

 

Would you now factor into your point made: the Regulatory Reform (Execution of Deeds and Documents) Order 2005 which amended s.1 (3) (b)

 

from:

 

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

 

to:

 

"(b) it is delivered as a deed."

 

 

Apple

[applecart]

Hi Ya Ben...

 

Lets not make light of this question any further...it is important that you get your facts straight, when you are posting on the thread - if it is your opinion - then make it clear that this is the case - when your opinion is dismissed by the applicable Law,please do not pose that your opinion is above the Law...

 

You are wrong to ignore the 2005 order - this is when it came into force..

 

"Citation, commencement, application and extent

 

1.—(1) This Order may be cited as the Regulatory Reform (Execution of Deeds and Documents) Order 2005 and shall come into force at the end of the period of 12 weeks beginning with the day on which it is made.

 

(2) The provisions of this Order shall not apply in relation to any instrument executed before the date on which this Order comes into force.

 

(3) This Order extends to England and Wales only."

 

Just so's you know........The 1989 Act refers to them as amendments 'yet' to be done - not amendments that are 'not in force'......

 

You also need to be made aware that there are a number of updates yet to be implemented to the said 1989 Act, that do not show on it's face - that confirm how it is that the 2005 Order has changed the Law in relation to Deeds and their Delivery - which in turn affects both your opinion and indeed my own......

 

This is not either your fault or mine, we have been duped into taking the Law Commissions report in 1987 as stated - when in fact - it is the said physical amendments (some of which as I say...are yet to be updated into the legislation) that affect the true position - to find that even when you post detail from the report in relation to the signatures - you have to keep this in context with the actual Order itself - that derived from the reports 'recommendations'.

 

The 2005 Order you may be surprised to learn affects the presumptions as to 'delivery'......

 

Apple

[applecart]

Hi Ben

 

Again you make light of the matter...I assume because you know that you are wrong and have and can not defend that which is the Law - Bless you : )

 

So, for the benefit of others...to avoid distractions that have no legal basis or merit.......

 

Firstly.....Further to the point raised as to 'if the legislator intended both the Lender and the Borrower to sign, then he would have made it so'...(similar to the CCA 1974 s.61.....)

 

The Legislator has done exactly that:....The Law of:

 

LP(MP) Act s.1 (2) - (not to be confused with section 2 by the way...section 1 relates to Deeds):

 

Section 1 is headed up as: "Deeds and their execution."

 

Firstly he causes all companies to comply with s.1 (2) by incorporating this section into the Acts wheresoever they relate to companies of all types....section 1 (2)(b) makes it clear that a document is not a deed unless:

 

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

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

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

 

Apple

[applecart]

Secondly....

 

Corporations Aggregate must comply with s1 (2)(b) by virtue of - The Law of: LPA 1925 s.74A

 

74A - Execution of instrument as a deed

 

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

 

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

(b)it is delivered as a deed.

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

 

Apple

[applecart]

Thirdly.....

 

In relation to companies in relation to deeds - Companies Act 2006 - The Law of: s.46

 

Companies, such as a Borrowers Lender must also comply with The Law where they were incorporated under the Companies Act 1985 s.36A which has since been amended by the Companie Act 2006 s.46:

 

46 - Execution of deeds

 

(1)A document is validly executed by a company as a deed for the purposes of section 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989 (c. 34) and for the purposes of the law of Northern Ireland if, and only if—

 

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

(b)it is delivered as a deed.

(2)For the purposes of subsection (1)(b) a document is presumed to be delivered upon its being executed, unless a contrary intention is proved.

 

 

Apple

[applecart]

Fourthly....

 

There is no longer to be any presumption taken by the Registrar that a Deed is enforceable simply because a Borrowers Deed on its face is signed by him....

 

As I said, This: s. 1 (3)(b) it is delivered as a deed by him or a person authorised to do so on his behalf.

 

is changed to This: s.1 (3)(b) it is delivered as a deed

 

The said 2005 Order - removes both a Borrowers and a Lenders said 'Presumption of Delivery' (i.e a grant/acceptance) on sight of an attestation of a solicitor at s.1 (5) of the 1989 Act (Presumption of authority to deliver an instrument on behalf of another) by ommitting the words 'involving the disposition or creation of an interest in land' AND the 'Presumption that the Lenders mortgage loan or 'purchase monies' have been received by a Borrower. The only legal presumption to be made is that the Solicitor has 'delivered' the instrument only - nothing more....

 

Apple

[applecart]

Lastly.......

 

Schedule 1 of the 2005 Order provides that in the 1989 Act subsection (6) (interpretation) in the definitions of "disposition" and "purchaser", for "disposition" and "purchaser" have the same meanings substitute "purchaser" has the same meaning - which simply means that neither the Lender is to presume that the witnessed document proves no more than the fact the instrument has been 'delivered' - it does not convey that the interest (i.e that which the LPA 1925 s.52 would confer) to the Lender or on the converse, that the Lender has sent any purchase money to the Solicitor for completion....

 

So, there you have it - the document (the purported Deed) is not a Deed at all - unless the Lender signs it

 

The documents to which Ben referred to in previous posts - all provide that the Lenders signature is not required....documents I might add that he asserts have been 'approved' by HMLR (Practice Guide 30) do not serve the same purpose.

 

HMLR are concerned only with that which it highlights in its Practice guide 30 for registration to occur.....

 

Apple : )

[applecart]

In the knowledge supplied by Ben from Silver queen Maritime v Persian Petroleum Services Plc at para 111 that: "… There are two sorts of delivery, and only two known to the law, one absolute, and the other conditional, that is an escrow to be the deed of the party when, and if, certain conditions are performed. If the deed operated as a complete delivery, cadit quaestio; if it did not, then it must be either an escrow or a nullity. The mode in which it in fact operated is a question of intention, primarily of the grantor, and secondly of the grantee; nothing passes out of the grantor against his intention, and no one can be compelled to accept an assignment of any property, onerous or otherwise, without his consent. Now an escrow or script is not a deed at all; it is a document delivered upon a condition on the performance of which it will become a deed, and will take effect as from the delivery, but until such performance it conveys no estate at all. …"

 

..... why on earth would anyone want to assume that a document that purports to be a deed could be misconstrued as one that infers conditions that would apply to a legally executed deed as one in escrow???? The mind Baffles.....because the only interpretation of the purported deed is that it is a "nullity" for want of Delivery.

 

Apple

[applecart]

Happy Easter Ben : )

 

Apple

[applecart]

The easter is now over, hope everyone had a good 'un : )

 

Moving forward then.....

 

If as I have found the document is not a valid deed - then what is it? why does Ben and others insist and rely on s.53 - to advise that it is enough for the Borrower to sign? Perhaps we need look to why the Lender doesn't sign... what Benefit could the Lender truly be looking to achieve in relying that the Borrowers purported Deed is left in purported escrow? and that when we evince it is not a Deed - why do they distract from this truth....???

 

Thought best to turn to our trusted reliable friend the HMRC - for he makes no mistake in getting his monies in from those that may make attempts to avoid paying him.......

 

HMRC point us to what I would interpret to be the meaning of LPA 1925 s.53 - and what it means - and how it operates when Borrowers find their purported Deed has not been signed by the Lender - he says:

 

"IHTM19110 - Legal background: waiver of loans by deed

 

 

A release may be made by deed or by a parol agreement made for valuable consideration. But, a parol release that is not made for consideration is treated only as an expression of intention not to insist that the loan is repaid. So, the debt can still be enforced by law or in equity.

 

The term ‘parol agreement’ is sometimes used to describe simple contracts (both oral and written) to distinguish them from contracts by deed; and sometimes oral contracts only to distinguish them from written contracts).

 

Letters and circumstantial evidence that clearly indicate an intention to absolve the beneficiary of the loan from any liability to repay will not be sufficient to discharge the debt."

 

Well, it cannot be denied any longer that the document is not a deed by virtue of the 2005 Order.

 

It cannot be denied therefore that the documents held on file by HMLR do not meet the legal requirements of LPA s.52 (1) - for that - the 2005 Order makes it Law that the Lender must sign.

 

The Bibby Judgment tells us - s.1 (3) (a)(b) must be complied with by the Borrower and for the Lender s.74A ...(whilst in that case it was a corporate - we know that the same applies across the legislation to whatsoever company is party to the deed)

 

There is no reason for anyone to imply that the Judge in 'bibby' did not apply the Law as he understood it in that case - or that he would not apply the law in relation to Borrowers should similar circumstances be found.....although a Borrowers case would be a whole lot simpler I can imagine to make out....

 

So it would seem that the Lender invokes a 'release deed or parol agreement' unbeknown to the Borrower - for it is signed by the 'grantor' (Borrower), states on its face that it is a 'deed' and is witnessed by the Solicitor.....

 

 

Please see the link to HMRC's info here: http://www.hmrc.gov.uk/manuals/ihtmanual/ihtm19110.htm

 

 

Apple

[applecart]

Hello Apple

 

I wrote out a long response to your post. However, due to the length I feel that points will be overlooked and lost, so I have cut and paste it into more bite size pieces.

 

With the upmost respect I really think you should have taken additional time to digest the information posted.

 

"I do not see how a Deed that does not show the Lenders signature (i.e a deed in escrow - awaiting the lenders signature at some future date) meets the requirements of the LPA 1925 s.52."

 

a) It is only escrow awaiting the lenders signature, if there is a specific escrow condition requiring the lenders signature. (we both know there is not such a condition, unless the deed contains an obligation from the lender to provide a further advance) - Please refer to the Mortgage Deed for the Nationwide and the CH1 form from the Land Registry for confirmation.

 

The type of Deed that the LPA 1925 speaks of at all. A deed in escrow is certainly not one that LPA 1925 speaks of at all

b) If there are no escrow conditions to be performed by the lender, it is not delivered in escrow but as the borrowers deed - Therefore meeting the requirement of the LPA 1925.

 

This comment is with regret misleading and makes no sense - a Deed to which the LPA 1925 speaks of is between the parties to it - those parties are the Lender and the Borrower.....both must sign as per the 2005 Order - anything else would not be a Deed for LPA 1925 purposes

 

c) If there is an escrow condition that it is to be signed by the lender, upon performance of that condition it becomes the borrowers deed - Therefore meeting the requirement of the LPA 1925.

 

What on earth do you truly mean by this statement? - I take it that you mean that whensoever the Lender decides to sign the Deed, then it is a valid Deed?? - Well whilst I take your point, you need to take on board that if the Lenders signature is not on the Deed as shown on the date it is registered with HMLR (that's why Borrowers should get official copies now) then, signing it at a later date does not mean that it was valid at the time the registration was made..... further when you know as much as I do about securitisation... you would know that the original lender would never be in a position to execute the document at a later date..... it is the intent of the parties at the time of making the deed that the Law is concerned with - not what the lender purports his intention will or may be at a later date Ben.

 

"I do not see how LPA 1925 s.53 or 54 (just because the document is in writing as opposed to a verbal or oral agreement) would assist the validity of a deed under the LPA 1925 s.52."

 

I have made no reference to the relevancy off s.54 of the Law of Property Act 1925. However, with reference to s.53 of the Law of Property Act 1925

 

Helden v Strathmore Ltd [2011] EWCA Civ 542 (11 May 2011)

 

29. Mr Helden's case on section 53 is only marginally less weak. The section does indeed apply to mortgages, as, unlike section 2, it is concerned with the "creat[ion] or disposi[tion]" of any "interest in land". However, it is far less prescriptive than section 2, which requires every term of the arrangement to be included in a document or identical documents signed by both parties. Section 53 merely requires the arrangement to be in a document signed by the person creating or disposing of the interest. Section 2 therefore may give rise to problems when it comes to estoppel or rectification (as discussed in the thoughtful judgment of Morgan J in Oun v Ahmed [2008] EWHC 545 (Ch), paras 41-55), but no such problems arise in connection with section 53.

 

From the above

 

1) Section 53 merely requires the arrangement to be in a document signed by the person creating or disposing of the interest.

 

s.53 states- (a)no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;

 

s.53 confirms that the interest in land can only be created in writing and signed by the person creating it (the borrower) or by his agent. It does not say that it also has to be signed by the grantee (the lender)

 

(that relates to contracts for sale) would do so in reliance on Helden and Eaglestar. "

[/i]

I don't understand your reference to 2 LP(MP) Act 1989 as it has nothing to do with Deeds.

 

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

 

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

 

I think HMRC understands how and why that it is only the Borrowers signature that is necessary for the misplaced reliance on s.53 at a time when the relationship between the Borrower and the Original Lender for Legal status was at all times reliant on s.52.

 

 

Apple

[applecart]

Thanks Ben, my easter was nice... and yours?

 

I don't mean any offence Ben, but I am getting rather tired with what is becoming a rather circular contention.

 

By the way - You have advised others to visit a solicitor - have you?

 

Did you present the 'bibby' and the 'Adjudicators' decisions that I posted to your solicitor? Did they tell you that the 'Adjudicators' decision to set a side the deed in that case was wrong? Did they tell you that 'Bibby' was wrong to set aside the deed in that case? Did either of those decisions consider the 'precedent' you advise us of in Helden or Eagle Star Ben? if not, did they tell you why not?

 

Apple

[applecart]

Hi Andrew1

 

I hope you are well.... whilst I understand that both Ben and I agree to disagree - this is clearly irrelavant at this point as you say - It is difficult when it is only Ben and I that are active contributors to the thread - I think Ben's intent (not unreasonably) would be that more than I should contribute......sorry Ben...You got Me - overly vocal - overly opinionated - and one who relies on the Law not opinion to form the basis of my posts.....it is the reason why most caggers tend to 'view' rather than contribute I think - a hard act to follow I know

 

But I will try to be less assertive - promise (not) : )

 

so...Moving on:

 

Popham J in Hawksland v. Gatchel (1601) Cro. Eliz. 835 at pages 835 – 836:-

 

"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."

 

The opening words of the above statement are "For if, upon delivery..."

We know that 'delivery' is important because the Law tells us that for a Borrowers deed - 'it must be delivered'

 

We learnt that a Grantor (Borrower) cannot as the grantor 'deliver' the deed to the grantee himself (this explains why the words from 'by him' to the end are no longer party to s.1(3)(b) by virtue of the 2005 Order)

 

Bibby at 335 says:

 

"The critical thing is that the person who has signed the deed must have separately indicated that he intends to be bound by the deed. Mere signature is not enough. Nor is it enough that what looks like a deed has been given to the person who appears to be the beneficiary of it...... –

 

SO WHAT IS THE ISSUE?

 

...."The issue is not whether the document has been physically handed over to the beneficiary, but whether the person whose deed it is supposed to be intended to be bound by it. The point was explained by Sir Charles Hall V.C. in Watkins v. Nash (1875) LR 20 Eq 262 at page 266:-

 

"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."

 

When read together - you cannot help but learn that 'delivery' is a separate act.....

It is not enough to say that becaause it is signed by the Borrower and not the Lender that it is a Deed that complies with LPA 1925 s.52...

 

So, the question begs....why is HMLR giving legal effect to purported deeds simply because it is signed by the Borrower -" When..."

"...the issue is not whether the document has been physically handed over to the beneficiary, but whether the person whose deed it is supposed to be intended to be bound by it"????

 

and...

 

"the critical thing is that the person who has signed the deed must have separately indicated that he intends to be bound by the deed"

 

Bibby at 336 says:

 

"On my findings none of the Guarantees, the Warranties or the Bibby ID Agreement was intended to be delivered, in the technical sense, when handed to Mr. Darling at the meeting on 27 August 2008 after signature by Mr. Magson and Mr. Scott. It follows that neither Mr. Magson nor Mr. Scott was bound by his Guarantee or his Warranty, and so is not liable to Bibby FS or Bibby ID in this action. It also follows that QCFS was not in fact bound by the terms of the Bibby ID Agreement, but the relevance of that to the issues in this action is the rather peripheral point that there were no obligations on the part of QCFS to Bibby ID for Mr. Magson or Mr. Scott to warrant."

 

So even if you work this out for yourself - what the Judge says here is that - even though the Agreements were signed by Magson and Scott - critically - he found that there were no obligations on the part of QCFS for Mr Magson or Mr Scott to warrant....to find that as Borrowers neither Mr Scott or Mr Magson was 'bound'

 

Pray tell - where is the difficulty in understanding that this is the same position Borrowers find themselves in?

The Lenders Deed sent to the Borrower - causes the Borrower to sign a deed - that does not show any obligation on the part of the Lender for any Borrower to warrant....

 

Therefore the so called Borrowers Deed is simply not 'binding' and therefore the Borrower cannot be legally bound to a deed that the Lender has failed to be cause to be binding

 

Let me post this again:

 

"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."

This suggests that 'escrow' is a condition - and in relation to a Mortgage Deed - that 'escrow' condition is only ''performed' - thus 'completed' when the Lender executes the Deed....

So what does this mean in reality - turn to 'silver' for the answer.....

 

From 'Silver' at para 108:

 

"A deed whether executed by a corporation or by an individual does not necessarily bind the grantor as soon as it is sealed. It only becomes binding when it has been "delivered" by the grantor as his deed, i.e. when the grantor has indicated by words or conduct that he intends the deed which he has executed to be binding on him."

 

At para 109: "… [What] is an escrow? Can a body or an individual having executed a document under seal as an escrow subject to a condition resile before the condition is accepted?..."

 

At para 110: "Two suggestions have been made about the deed, the effect of which we have now to consider. One is that the deed in question was what is called in law an escrow, that is a writing which is to take no immediate effect, but is only to come into operation upon the happening of some condition. The other suggestion is that there was no escrow, in fact that there was no delivery at all of this deed; that it was physically delivered by being handed over, after it had in form been executed by signing, sealing, and delivery, but handed over only to be kept by the agents, the solicitors, for Mr Hoe, and to be dealt with as Mr Hoe should direct. In that case there would be no delivery,..."

 

A Borrowers deed is in 'form' signed and delivered - it is then handed back to a solicitor - so... 'in that case there would be no delivery'...

 

At para 111: "… There are two sorts of delivery, and only two known to the law, one absolute, and the other conditional, that is an escrow to be the deed of the party when, and if, certain conditions are performed. If the deed operated as a complete delivery, cadit quaestio; if it did not, then it must be either an escrow or a nullity. The mode in which it in fact operated is a question of intention, primarily of the grantor, and secondly of the grantee; nothing passes out of the grantor against his intention, and no one can be compelled to accept an assignment of any property, onerous or otherwise, without his consent. Now an escrow or script is not a deed at all; it is a document delivered upon a condition on the performance of which it will become a deed, and will take effect as from the delivery, but until such performance it conveys no estate at all. …"

 

The 'primary' intention is that of the Borrower - the 'secondary' intent is that of the Lender....."nothing passess out of the grantor (Borrower) against his intention, and no one can be compelled to accept an assignment of any property, onerour or otherwise, without his consent (i.e - if the Lender does not 'accept' the Deed - then until he does so - there is no conveyance of the estate at all)

Like someone has already said - how long should a Borrower wait before the Lender signs the Deed - in most cases the Deed goes undelivered - in fact possession occur for most Borrowers when the deed remains 'in escrow'....in other words waiting for the Lender to be bound or to cause the Borrowers deed to be binding........... pray tell.... what is that all about then???

 

I think we now need to look at what a Borrower can do when he becomes aware that the Lenders signature is not on the deed at a time long after it is expected that it should be there......

 

Notwithstanding that....factor in that the lender will have sold on the mortgage prior to signing the Deed....How does this impact on the whole scheme of things??????

 

We need to consult Halsbury's Law for this situation I think......

 

Apple

[applecart]

Caggers are reporting that they are obtaining copies of their deeds held at HMLR - there is no Lender signature on them.

 

They are clearly indicating that there is nothing more than either a single sheet with their signature on - having looked at Deeds posted by Ben (Thanks Ben) you can clearly see that there are no obligations taken by the Lender and in some instances no space for a lenders signature and in others a space for the lenders signature - but no signature.....

 

Where is the 'it' ???- The Law says the Borrower must sign 'it' to prevent fraud - how does a Borrower or a court or HMLR know what the 'it' is - considering copies held at HMLR are 'official copies' - are the two pages the 'it' element that an Adjudicator should decide on??

 

Why should the Borrower, HMLR or a Court or Adjudicator be expected to rely that the 'it' is the two pages - surely if they did....it would be even clearer that the Borrower is not bound - in fact, I suspect that even if you provide the 'it' you will find that the 'it' is a completely separate document with terms and conditions obligating the Borrower to perform and the only obligations of the Lender will be to take your house of you.....are such terms fair or subject to unfair terms and conditions Regulations???

 

Apple

[applecart]

Here: http://www.hmrc.gov.uk/manuals/ihtmanual/IHTM19110.htm - IHTM19110 - Legal background: waiver of loans by deed tells us that....

 

"A release may be made by deed or by a parol agreement made for valuable consideration"

 

Ben and I thrashed s.53, Ben asserted that s.53 had nothing to do with parol/oral/verbal agreements - where here - it is clear from the wording of s.53 - that it is to do with such agreements:

 

"(1)Subject to the provision hereinafter contained with respect to the creation of interests in land by parol—"

 

The question begs .....The 'approved' form of deed to cause the deed to give effect to a charge as accepted by HMLR need only.....(practice guide 30):

 

"7 Would you ever refuse to approve a charge?

 

To qualify for approval, a charge must contain or provide for (as the case may be):

 

a date

 

the names and addresses of the borrower(s)

 

the name and address of the lender, including its company registration number, if any

 

a description of the property being mortgaged, including its title number

 

a valid charging clause

 

a valid execution clause with provision for attestation.

 

There is a serious question to answer here - Is HMLR in approving the deeds in their current form - no more than an approval of 'a release made by deed for valuable consideration' ????

 

Or are all Borrowers missing something here????

 

Apple

[applecart]

HMLR in accepting that the 'form' of a Borrowers purported deed is a Deed for LPA 1925 s.52 purposes is misplaced.....

 

Unless they look to LPA 1925 s.85, s.86, or s.87 - which are the sections that specifically speak of Charges by way of Legal Mortgage??

 

Even then, would the 'form' of Deed - mean that the actual 'Deed' between the Borrower and the Lender should be taken to be enforceable - when it is not binding???

 

Practice guide 39 appears to protect the HMLR Registrar from direct redress - at clause 2.2 - which basically says - if you got an issue with the Deed speak to the Adjudicator not us.....eeerm...but we will tell you that you have to come through us first....even when the independant Adjudicator makes it clear that the public can go to him directly for disputes to do with the deed (oh yes, HMLR we're onto your tricky statements that you tell the public here)

 

Are HMLR responsible for the level of possessions that take place because the public and the courts rely that HMLR know what they are doing????

 

Apple

[applecart]

From my previous post

 

 

Helden v Strathmore Ltd [2011] EWCA Civ 542 (11 May 2011)

 

This is another Court of Appeal case -

 

Originally Posted by :

 

29. Mr Helden's case on section 53 is only marginally less weak. The section does indeed apply to mortgages, as, unlike section 2, it is concerned with the "creat[ion] or disposi[tion]" of any "interest in land". However, it is far less prescriptive than section 2, which requires every term of the arrangement to be included in a document or identical documents signed by both parties.

 

Section 53 merely requires the arrangement to be in a document signed by the person creating or disposing of the interest.

 

Section 2 therefore may give rise to problems when it comes to estoppel or rectification (as discussed in the thoughtful judgment of Morgan J in Oun v Ahmed [2008] EWHC 545 (Ch), paras 41-55), but no such problems arise in connection with section 53.

 

From the above

 

1) Section 53 merely requires the arrangement to be in a document signed by the person creating or disposing of the interest.

 

eeeerm..... Are you advocating that it is ok for a document that HMRC refers to as "A release may be made by deed or by a parol agreement made for valuable consideration"

is what the Borrower should consider to be a deed for s.52, s.85, s.86, s87 purposes??? - Is your interpretation of the Judges comments truly representative of a Borrowers intent? Or is your interpretation to do with HMLR registering the Lenders intent....?? Are we then to understand that s.53 on its own in "creat[ion] or disposi[tion]" of any "interest in land all that a Borrowers intent is reduced to in reality to support possession proceedings by a Lender on the premise that this is supposed to be construed as the means by which creating a legal mortgage of land is created by a charge by deed expressed to be by way of legal mortgage? May as well repeal s.52, s.85 s.86, 87, then hey ho!.....but.... where's the 'it' Ben? you know the one...the 'it' talked about by the Adjudicator? to the extent that because there was no 'it' .....the charge ended up being set aside..... do tell?

 

This case would appear to confirm that the document (the deed) merely needs to be signed only by the person creating or disposing of the interest, in otherwords the borrower only needs to sign the deed as a result of s.53 of the Law of Property Act 1925.

 

Not according to 'Bibby' - Bibby says the Borrower has to be found to be bound for the deed to validly executed - s.53 makes no such inference - which takes away from it being the type of deed intended by the Borrower Ben - Borrowers want to know where the 'it' is and they want to know where is the 'binding' deed? - HMRC tell us that documents that simply "creat[ion] or disposi[tion]" of any "interest in land are not the same as those that Borrowers intend to be bound to - the Borrower did not intend to meet HMRC requirement, the Borrower wanted to create a legal mortgagee who had a legal right to possession......it is HMLR by registering this s.53 document that gives the Lender legal status....this is contrary to the Borrowers intent Ben...

 

HMLR and the Lender can't have it both ways Ben - after al - if as you say, that it is the Borrowers Deed - then surely it is the Borrowers intent that should be made apparent....his intent is for HMLR to create a charge by way of legal mortgage in favor of a legal mortgagee in right to possession NOT a Lender who's legal status is only apparent due to being registered by HMLR by virtue if s.58 (1) from sight of a document that amounts to no more that a simple contract by deed that purports an intent to create an interest or disposition Ben.....

 

Apple

[applecart]

Ben said: "A mortgage deed is an interest in land created in writing and not by parole therefore as clearly confirmed by s53 it must be signed by the person creating it."

 

With respect, I'm truly not sure who he is trying to kid by saying that....

 

LPA 1925 s.205 gives the definition of a mortgage -

 

(xvi)“Mortgage” includes any charge or lien on any property for securing money or money’s worth; “legal mortgage” means a mortgage by demise or subdemise or a charge by way of legal mortgage and “legal mortgagee” has a corresponding meaning; “mortgage money” means money or money’s worth secured by a mortgage; “mortgagor” includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property; “mortgagee” includes a chargee by way of legal mortgage and any person from time to time deriving title under the original mortgagee; and “mortgagee in possession” is, for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgaged property; and “right of redemption” includes an option to repurchase only if the option in effect creates a right of redemption;

 

 

A deed: A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered. It is commonly associated with transferring title to property.

 

A mortgage Deed - 'commonly' is associated with transferring title to property - not creating an interest or a disposition Ben.....with a right implied to redemption - a document that s.53 applies to is not the same thing, for a start there is no right to redemption when one of those type documents are invoked is there? - was that the Borrowers intent Ben?

 

Apple