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

[bhall]

Lol Apple you need to drop it now seriously. It is getting ridiculous....

 

s.53 as you say states

 

 

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

 

A provision is a term in legislation and is interchangeable with the term section.

 

Therefore the above quote from s.53 merely states the rest of s.53 being

 

(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;

 

To be clear s.53 as confirmed by the Court of Appeal confirms that it has to be signed by the person creating it (that would be the borrower)

 

However s.53 is "Subject to the provision hereinafter contained with respect to the creation of interests in land by parol"

 

The provision hereafter being s.54 which states

 

 

Creation of interests in land by parol.

 

(1)All interests in land created by parol and not put in writing and signed by the persons so creating the same, or by their agents thereunto lawfully authorised in writing, have, notwithstanding any consideration having been given for the same, the force and effect of interests at will only.

(2)Nothing in the foregoing provisions of this Part of this Act shall affect the creation by parol of leases taking effect in possession for a term not exceeding three years (whether or not the lessee is given power to extend the term) at the best rent which can be reasonably obtained without taking a fine.

 

to break it down for you nothing in s.54 changes the requirement imposed by s.53. s.53 is subject to s.54 but only in terms if an interest created by parole. If the interest is not created by parole s.53 confirms that it must be signed by the person creating it.

 

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.

 

Apple the Court of Appeal have already ruled on s.53 meaning that a deed only needs to be signed by the person creating it. The borrower creates the deed as it is the borrower that gives the charge to the lender.

 

If you are unable or unwilling to grasp such a basic premise, this debate will go on for years based on just your misunderstanding.

 

Your arguments are becoming irrational and completely baseless. Out of respect to A1 and others. I am going to stop here and no longer comment in response to the ridiculous points you make. iI suggest you do the same, your starting to look very foolish and blinked to the outstanding obvious truth.

 

HMLR has confirmed to TMB in his thread that the lender does not have to sign. Legislation does not state the lender has to sign and two court of appeal judgements confirm the lender does not have to sign.

 

Against the HMLR, Case Law and legislation we have the opinion and interpretation of Applecart. I will go with the HMLR, Case Law and Legislation thanks.

 

Can the site team please close my account

 

Thank you

 

Ben

Edited April 3, 2013 by bhall

[bhall]

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.

 

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.

[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

[applecart]

Lol Apple you need to drop it now seriously. It is getting ridiculous....

 

s.53 as you say states

 

 

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

 

A provision is a term in legislation and is interchangeable with the term section.

 

Therefore the above quote from s.53 merely states the rest of s.53 being

 

(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;

 

To be clear s.53 as confirmed by the Court of Appeal confirms that it has to be signed by the person creating it (that would be the borrower)

 

However s.53 is "Subject to the provision hereinafter contained with respect to the creation of interests in land by parol"

 

The provision hereafter being s.54 which states

 

 

Creation of interests in land by parol.

 

(1)All interests in land created by parol and not put in writing and signed by the persons so creating the same, or by their agents thereunto lawfully authorised in writing, have, notwithstanding any consideration having been given for the same, the force and effect of interests at will only.

(2)Nothing in the foregoing provisions of this Part of this Act shall affect the creation by parol of leases taking effect in possession for a term not exceeding three years (whether or not the lessee is given power to extend the term) at the best rent which can be reasonably obtained without taking a fine.

 

to break it down for you nothing in s.54 changes the requirement imposed by s.53. s.53 is subject to s.54 but only in terms if an interest created by parole. If the interest is not created by parole s.53 confirms that it must be signed by the person creating it.

 

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.

 

Apple the Court of Appeal have already ruled on s.53 meaning that a deed only needs to be signed by the person creating it. The borrower creates the deed as it is the borrower that gives the charge to the lender.

 

If you are unable or unwilling to grasp such a basic premise, this debate will go on for years based on just your misunderstanding.

 

Your arguments are becoming irrational and completely baseless. Out of respect to A1 and others. I am going to stop here and no longer comment in response to the ridiculous points you make. iI suggest you do the same, your starting to look very foolish and blinked to the outstanding obvious truth.

 

HMLR has confirmed to TMB in his thread that the lender does not have to sign. Legislation does not state the lender has to sign and two court of appeal judgements confirm the lender does not have to sign.

 

Against the HMLR, Case Law and legislation we have the opinion and interpretation of Applecart. I will go with the HMLR, Case Law and Legislation thanks.

 

Can the site team please close my account

 

Thank you

 

Ben

 

Who upset Ben??????

 

Don't worry Ben, if I ever find the person who has upset you.... I swear I will have a quiet word - ok : )

 

Applecart

[andrew1]

Differences of opinion do not have to be classed as baseless or ridiculous suggestions, just different points of view based upon factual evidence. I don't think I've ever heard Judges and barristers saying their opponents were baseless or ridiculous (well, not often anyway) but they argue facts and case laws.

 

Some case laws are clearly incorrect or biased towards a particular set of circumstances relating to the case in question, but these are defined by distinctions. (I suffered at the hands of that myself with the 'Heath vs SPML' case, when I clearly knew my case was different from Heath, but did not have the funds to appeal it despite the judge suggesting I would clearly succeed at appeal. Mine was a s.18 issue and heath had her funds paid by spml to her solicitor to disburse clearing other creditors whereas mine was paid by Swift directly to the creditors as a condition of a new loan. 3 part Multiple agreement totally unenforcable said my Circuit Judge, but Heath was going through and had set precedent - I had no funds to appeal it and I have just just paid Swift 152k in addition to my 60k loan (paid back in full) for the pleasure of fighting it:-x)

 

No, please do not stop arguing facts, keep the debate going and be man enough to accept if the evidence supporting one side or another's views apply stronger despite the current differences in opinion. Dig out the reasons why you are both of different opinion and lay it out squarely, but hold back from the 'baseless or ridiculous' statements and respect each others right to their opinion even if you beg to differ. This debate is far too important to be ditched at this point. Pleeeeeaaase!

 

A1

[applecart]

Hi Andrew1

 

You are of course right.... differences of opinion can appear to be dogmatic, but I'm sure neither Ben or myself intentionally 'attack' each other 'personally' - but hey ho - it is what it is... I will do my best to bring that which I find out to the CAG on this topic to progress the objective in favor of Borrowers - something that I have always admitted to be my main objective.....

 

There is nothing that I have seen, said, that has distracted me so far..... in fact.....

 

Both Eagle Star and Helden serve only to help Borrowers be mindful of the pitfalls - they serve no further purpose and are not worthy of any further discussion - I think we can all agree that we are concerned here on the CAG with only those cases that have provided success for the Borrower....................NOT cases that promote and lord the success of the Lender!!

 

Such success for the Borrower can be found so far in:

 

Bibby Financial Services and others v Magson and others [2011] EWHC 2495 (QB)

Silver Queen Maritime Ltd v Persia Petroleum Services [2010]

Garguilo v Jon Howard Gershinson & Anr [2012] EWLandRA 2011_0377 (06 January 2012)

 

The last and in my opinion the most important of the 3 cases above is the decision of the Adjudicator of HMLR in Garguilo v Jon Howard Gershinson.......it can be found here: http://www.bailii.org/ew/cases/EWLandRA/2012/2011_0377.html

 

The thread was to do with 'does the lender have to sign'....??

 

The 3 cases posted above say YES...in brief:

 

Bibby says 'YES' by confirming that the Lender must sign to make the borrower and themselves bound to their individual obligations

 

Silver says 'YES' by confirming that if the lender has not signed then it is a deed in escrow - awaiting performance from the lender and that a deed in escrow is not 'instant' and is therefore invalid until such time as it is signed or a complete nullity if the time of signing is way past a reasonable time...

 

Garguilo says 'YES' by confirming that if the whole document is not party to the Deed - the 'it' is not signed and is not enforceable against a Borrower....HMLR is shown to be sending Borrowers at best 2 pages of the purported deed as 'official copies' that does not meet the 'it' requirement that the HMLR's own Adjudicator found to be an important element of a deed.....

 

The Penders, The Greens, The Heldens all suffered because these cases were either not available at the time they sought defence or were simply not relied upon even though they were around - notably non of these cases were relied upon by the Defending Solicitors to protect their clients interests (the Borrower)...when they were around....

 

 

Apple

[applecart]

The legal implications are of course HUGE.... we are not talking about paying back Borrowers small amounts of money here (such as ppi claims, bank overdrafts or charges).... remember, investment bankers inflated the market so that house prices went through the roof, Borrowers home loans are massive - not like back in the 80's when you could get a loan for £17K or less on a three bed house..... today, we are talking figures of £100'sss of pounds.....

 

HMLR are not going to take likely to requests for official copies of deeds - but by statute they must supply them as and when requested. Notably they are even misconstruing UN1 applications as AN1 applications I'm told (gawd help us...!!)

 

The Adjudicator is not going to take likely to standing by the decision in Garguilo - but it is its own precedent - how can it deny the similarities?? (HMLR are telling Borrowers that they cannot make applications direct to the Adjudicator - when the Adjudicators website clearly states that the public make applications direct to him in cases to do with rectification of the register - why are HMLR misleading the public??? the mind boggles....they even told one Borrower that the deed does not need to be signed by the Lender - crikey, whatever next??? - this from an Authority that we rely on to register the very houses we live in.....it's not looking good at all...but hey ho we press on...)

 

Borrowers will be interested to know that according to Halsbury's Law of England, 4th Edition 1975 vol 12, para 1360:

 

"..where a party named in a deed has without executing the deed, accepted some benefit under it, that person must give effect to all the conditions on which the benefit was expressed by the deed to be conferred, and so must perform all the covenants and stipulations on their part contained in the deed'

 

Halsbury's Law is essentially saying, that where it can be shown that the Lender has not executed the deed, but benefits from CMI, repossession and the eventual sale of a borrowers home, then they are to be made liable to the Borrower for all the monies and benefits they have derived......

 

It is clear that a Lender with an order from the court will follow through to re-sell (I say this because they will have already sold all the legal and equitable rights to the SPV previously) or better stated as 'sell the actual property' - this should not deter the Borrower - the finding that the intended underlying mortgage was intended to be by deed may protect the right to bring a case to the Adjudicator upto 12 years after the event (as a 'speciality' deed)

 

Hope this helps : )

 

Apple

[applecart]

It must be said, whilst the implications are huge - so are the risks - get it wrong....i.e quote section 2 instead of section 1, or quote Kuwait instead of Bibby and you will come a cropper....

 

Steampowered guided that whilst delivery is important that unless a contrary intention is found, a Borrower will not have a leg to stand on - Ben essentially gave a valuable insight into HMLR's stance on their reliance on Helden and Eagle Star and s.53....notwithstanding the caution provided by Gaston....

 

You have to 'frame' your argument - rely on extrinsic as well as intrinsic evidence - dig out the Mortgage Application Form, the Mortgage Offer, any letters of communication that help support the finding that as a Borrower - HMLR have by mistake registered a legal charge based on a document that in form represents a deed but not in Law.

 

I posted on the TMB Securitisation thread the way to go about 'framing' the case....

 

Apple

[bhall]

My apologies A1

 

The reason for my previous outbursts is that there is nothing to be debated. The signature of the lender isn't required.

 

Maybe if, I explain myself more calmly the point may come across better.

 

Delivery of a deed is demonstrated by intent of the grantor to be bound by his deed.

 

During the normal house buying process, the lender will send a number of documents to the legal representative of the borrower.

 

One of those documents will be the mortgage deed. The legal representative sends the mortgage deed to the borrower to execute (sign) as his/her/ their deed. (also witnessed).

 

The executed mortgage deed is then returned to the legal representative of the borrower.

 

The legal representative retains possession of the executed mortgage deed, until the funds are released by the lender.

 

The action by the lender of releasing the funds is evidence of its acceptance of the mortgage deed (as security for the loan)

 

Once the funds are released by the lender, the legal representative of the borrower, then sends the executed mortgage deed to the Land Registry to be registered .

 

This final step of the legal representative sending the executed mortgage deed to the Land Registry effects delivery as it shows that the borrower, being the grantor of the deed intends to be bound by it.

 

It is unlikely that any official copy of the mortgage deed will bear the signature of the lender, as the mortgage deed is sent directly to the Land Registry by the legal representative of the borrower for registration.

 

If the borrower did not intend to be bound by his executed mortgage deed, his legal representative would not send it to the land registry for registration.

 

The deed can be shown to executed - as it will bear the signature of the borrower. (executed as his deed)

 

The deed can be shown to be delivered - as it was sent to the Land Registry to be registered. (As it is signed by the borrower, it is delivered as his deed).

 

The deed can be shown as being accepted as the lender has released the funds.

 

The only exception to the above process is when the mortgage deed includes a specific term that states the lender is obligated to provide a further advance ( this is different to - the deed secures further advances). If the mortgage deed includes such a term, it is not a unilateral document (the performance of one party) it is a bilateral document.

 

When the mortgage deed is unilateral and only details the performance obligation of the borrower, only the borrower need sign.

 

When the mortgage deed is bilateral and details performance obligations of both the borrower and the lender, it must be signed by both the borrower and the lender.

 

As described above the sending of the mortgage deed to the land registry confirms the intent of the borrower to be bound by his deed, whereas, the release of the funds signifies the lenders acceptance of the deed as security for the loan.

 

There is nowhere to go with this debate, it only serves to confuse something that is well established in English law.

 

An argument that a mortgage deed that has not been signed by the lender is void, will not stand up in Court for the reasons described above and as detailed in the two previously posted Court of Appeal Judgements.

 

I think a member of the site team, with legal expertise should now comment on this thread to confirm the current legal position in terms of the requirement if the lender to sign the mortgage deed, granted by the borrower.

 

 

 

Thanks everyone

 

Ben

Edited April 6, 2013 by bhall

[bhall]

In Longman v Viscount Chelsea [1989], Mr Justice Lindblom noted that a deed can be delivered in three ways once it has been signed: 


 

1) unconditionally, so that it becomes irrevocable and takes immediate effect on delivery;


 

2) in escrow, so that it is irrevocable but does not take effect until certain conditions are fulfilled; and


 

3) to an agent with instructions to deal with the deed in a certain way in a certain event, whereby it will be revocable

and of no effect until it is so dealt with.


 

The first is unconditional delivery with the second and third being the two types of conditional delivery, one being irrevocable and the other revocable (until dealt with).

[applecart]

In Longman v Viscount Chelsea [1989], Mr Justice Lindblom noted that a deed can be delivered in three ways once it has been signed: 


 

1) unconditionally, so that it becomes irrevocable and takes immediate effect on delivery;


 

2) in escrow, so that it is irrevocable but does not take effect until certain conditions are fulfilled; and


 

3) to an agent with instructions to deal with the deed in a certain way in a certain event, whereby it will be revocable

and of no effect until it is so dealt with.


 

The first is unconditional delivery with the second and third being the two types of conditional delivery, one being irrevocable and the other revocable (until dealt with).

 

I'm terribly sorry to say...but non of the above has any effect until AFTER the document that purports to be the Borrowers deed is DELIVERED...it CANNOT BE DELIVERED in any of the forms you speak of without the LENDERS signature first being in evidence....

 

from...... Silver queen Maritime v Persian Petroleum Services Plc at para 111 tells us 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. …"

 

and....from 'Answers.com':-

 

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, and in some jurisdictions sealed. A deed, also known as an instrument in solemn form, is the most formal type of private instrument requiring not only the maker of the deed (grantor, transferor) but also attesting witnesses as signatories. A deed has therefore a greater presumption of validity and is less rebuttable than an instrument under hand, i.e., signed by the party to the deed only, or an instrument under seal. A deed can be unilateral or bilateral. Deeds include conveyances, commissions, licenses, patents, diplomas, and conditionally powers of attorney if executed as deeds. The deed is the modern descendant of the medieval charter, and delivery is thought to symbolically replace the ancient ceremony of livery of seisin.[1]

The use of attesting witnesses has replaced to a large extent the former use of seals to create a higher degree of formalism; this explains the traditional formula signed, sealed and delivered and why agreements under seal are also called contracts by deed. Where the use of seals continues, deeds are nothing more than a special type of instrument under seal, hence the name specialty for a contract under seal. Specialties differ from a simple contract, i.e., a contract under hand, in that they are enforceable without consideration (i.e. gratuitous), in some jurisdictions have a liability limitation period of double that of a simple contract, and allow for a third party beneficiary to enforce an undertaking in the deed, thereby overcoming the doctrine of privity.[2] Specialties, as a form of contract, are bilateral and can therefore be distinguished from covenants, which, being also under seal, are unilateral promises.

At common law, to be valid and enforceable, a deed must fulfill several requirements:

It must state on its face it is a deed, using wording like "This Deed..." or "executed as a deed".

It must indicate that the instrument itself conveys some privilege or thing to someone. This is indicated by using the word hereby or the phrase by these presents in the clause indicating the gift.

The grantor must have the legal ability to grant the thing or privilege, and the grantee must have the legal capacity to receive it.

It must be executed by the grantor in presence of the prescribed number of witnesses, known as instrumentary witnesses (this is known as being in solemn form).

A seal must be affixed to it. Originally, affixing seals made persons parties to the deed and signatures were optional, but most jurisdictions made seals outdated, and now the signatures of the grantor and witnesses are primary.

It must be delivered to (delivery) and accepted by the grantee (acceptance).

Conditions attached to the acceptance of a deed are known as covenants. A deed indented or indenture is one executed in two or more parts according to the number of parties, which were formerly separated by cutting in a curved or indented line known as the chirograph.[3] A deed poll is one executed in one part, by one party, having the edge polled or cut even, and includes simple grants and appointments."

 

and.....source:- http://www.wisegeek.com/what-is-a-bilateral-contract.htm

 

The distinction between bilateral and unilateral contracts sometimes is not readily recognized by people who are not legal professionals. Unilateral contracts are binding only on the promisor until a promisee consents to fulfill the requests delineated in the promisor's offer. The term "consideration" denotes acceptance of an obligation that results in the making of a promise according to the specifics of a contract. When a bilateral contract is under-written, no consideration exists until both parties have agreed to the promises stated by the document. This differs from a unilateral contract for which immediate consideration is provided only by the promisor.

 

If a promisor agrees to pay a specified amount of money for products, services, or a combination of the two, his or her agreement to compensate is his or her consideration. Only if a provider of the products or services agrees to accept the contractual payment terms can it be said that there is consideration on the part of the promisee. The majority of courts would tend to rule that such an example would legally convert what was a unilateral contract into a bilateral contract. Other courts may not make similar judgments due to the inconsistencies that may arise when attempting to apply the concepts of unilateral and bilateral contracts.

 

Some legal agreements cover the provision of a product or services that may have to be rendered over long periods of time and perhaps in various stages. For example, if a promisor agrees to monetarily compensate a promisee for painting his car, the question of when the conversion from a unilateral to a bilateral contract occurred may be disputed. One court may rule that consideration was provided by both parties at the time the promisee agreed on the price. Another court may judge that there can be no true conversion until the painting is completed to the satisfaction of the promisor. If the promisor cannot be satisfied or claims dissatisfaction in order to elude contractual obligations, consideration must be made for the fair treatment of the promisee.

 

...........................................................Not to mention that Blackstones Law tells us all that a Deed is bilateral...

 

and that Halsbury's law tells us, that when the lender benefits from the deed lodged with HMLR prior to signing it....that the lender must give effect to it in favor of the Borrower..........This makes sense, otherwise there would be a clog on the right to redemption!!

 

Have a read of the above, there is no ambiguity therein...it is more than clear that the Lender must sign the document - otherwise there is 'no estate conveyed at all'...

 

It is clear that these finding will not suit Lenders - But these are the FACTS - to which there is NO DEFENCE.....

 

Glad to know you have calmed down Ben... : )

 

Applecart

[applecart]

Keeping this matter in perspective is the key ....just as important is that we make sure that when a point is made, that it is made with the necessary validation....this matter is far too important to Borrowers for us to skim around the surface...or to revert to that 'skim' when the issue itself has moved forward as validated upon common law, statute notwithstanding in particular the decision of the Adjudicator in a similar instant case.......

 

Whether detractors (well intended or otherwise) wish to accept the findings or not, is not at issue......

 

A deed between the Borrower and the Lender must be 'absolute'(signed by both the lender and the borrower) .....a conditional deed - in what ever guise is void - FULLSTOP - to comply with LPA s.52 - it must be a deed - if it is not 'absolute' then it is 'conditional' - and is therefore not a deed.......That's how important it is that the Lender signs the Deed..failure to sign....as many lenders have been evidenced to be guilty of....was, I can only humbly assume was at all times a risk that they hoped would be protected by detractors and ignorance.....

 

IGNORANCE is NO LONGER Bliss!!

 

There is no offence to Ben or others intended of course.

 

 

Applecart

[andrew1]

Hi Apple, just as a matter of interest, are you aware of this theory being tested more recently in the courts by anyone and winning or about to be tested?

 

That's not a sarcastic attempt to be clever, I'm asking in all sincerity.

 

Cheers

 

A1

[bhall]

I'm terribly sorry to say...but non of the above has any effect until AFTER the document that purports to be the Borrowers deed is DELIVERED...it CANNOT BE DELIVERED in any of the forms you speak of without the LENDERS signature first being in evidence....

 

from...... Silver queen Maritime v Persian Petroleum Services Plc at para 111 tells us 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. …"

 

and....from 'Answers.com':-

 

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, and in some jurisdictions sealed. A deed, also known as an instrument in solemn form, is the most formal type of private instrument requiring not only the maker of the deed (grantor, transferor) but also attesting witnesses as signatories. A deed has therefore a greater presumption of validity and is less rebuttable than an instrument under hand, i.e., signed by the party to the deed only, or an instrument under seal. A deed can be unilateral or bilateral. Deeds include conveyances, commissions, licenses, patents, diplomas, and conditionally powers of attorney if executed as deeds. The deed is the modern descendant of the medieval charter, and delivery is thought to symbolically replace the ancient ceremony of livery of seisin.[1]

The use of attesting witnesses has replaced to a large extent the former use of seals to create a higher degree of formalism; this explains the traditional formula signed, sealed and delivered and why agreements under seal are also called contracts by deed. Where the use of seals continues, deeds are nothing more than a special type of instrument under seal, hence the name specialty for a contract under seal. Specialties differ from a simple contract, i.e., a contract under hand, in that they are enforceable without consideration (i.e. gratuitous), in some jurisdictions have a liability limitation period of double that of a simple contract, and allow for a third party beneficiary to enforce an undertaking in the deed, thereby overcoming the doctrine of privity.[2] Specialties, as a form of contract, are bilateral and can therefore be distinguished from covenants, which, being also under seal, are unilateral promises.

At common law, to be valid and enforceable, a deed must fulfill several requirements:

It must state on its face it is a deed, using wording like "This Deed..." or "executed as a deed".

It must indicate that the instrument itself conveys some privilege or thing to someone. This is indicated by using the word hereby or the phrase by these presents in the clause indicating the gift.

The grantor must have the legal ability to grant the thing or privilege, and the grantee must have the legal capacity to receive it.

It must be executed by the grantor in presence of the prescribed number of witnesses, known as instrumentary witnesses (this is known as being in solemn form).

A seal must be affixed to it. Originally, affixing seals made persons parties to the deed and signatures were optional, but most jurisdictions made seals outdated, and now the signatures of the grantor and witnesses are primary.

It must be delivered to (delivery) and accepted by the grantee (acceptance).

Conditions attached to the acceptance of a deed are known as covenants. A deed indented or indenture is one executed in two or more parts according to the number of parties, which were formerly separated by cutting in a curved or indented line known as the chirograph.[3] A deed poll is one executed in one part, by one party, having the edge polled or cut even, and includes simple grants and appointments."

 

and.....source:- http://www.wisegeek.com/what-is-a-bilateral-contract.htm

 

The distinction between bilateral and unilateral contracts sometimes is not readily recognized by people who are not legal professionals. Unilateral contracts are binding only on the promisor until a promisee consents to fulfill the requests delineated in the promisor's offer. The term "consideration" denotes acceptance of an obligation that results in the making of a promise according to the specifics of a contract. When a bilateral contract is under-written, no consideration exists until both parties have agreed to the promises stated by the document. This differs from a unilateral contract for which immediate consideration is provided only by the promisor.

 

If a promisor agrees to pay a specified amount of money for products, services, or a combination of the two, his or her agreement to compensate is his or her consideration. Only if a provider of the products or services agrees to accept the contractual payment terms can it be said that there is consideration on the part of the promisee. The majority of courts would tend to rule that such an example would legally convert what was a unilateral contract into a bilateral contract. Other courts may not make similar judgments due to the inconsistencies that may arise when attempting to apply the concepts of unilateral and bilateral contracts.

 

Some legal agreements cover the provision of a product or services that may have to be rendered over long periods of time and perhaps in various stages. For example, if a promisor agrees to monetarily compensate a promisee for painting his car, the question of when the conversion from a unilateral to a bilateral contract occurred may be disputed. One court may rule that consideration was provided by both parties at the time the promisee agreed on the price. Another court may judge that there can be no true conversion until the painting is completed to the satisfaction of the promisor. If the promisor cannot be satisfied or claims dissatisfaction in order to elude contractual obligations, consideration must be made for the fair treatment of the promisee.

 

...........................................................Not to mention that Blackstones Law tells us all that a Deed is bilateral...

 

and that Halsbury's law tells us, that when the lender benefits from the deed lodged with HMLR prior to signing it....that the lender must give effect to it in favor of the Borrower..........This makes sense, otherwise there would be a clog on the right to redemption!!

 

Have a read of the above, there is no ambiguity therein...it is more than clear that the Lender must sign the document - otherwise there is 'no estate conveyed at all'...

 

It is clear that these finding will not suit Lenders - But these are the FACTS - to which there is NO DEFENCE.....

 

Glad to know you have calmed down Ben... : )

 

Applecart

 

Hello Apple ;-)

 

I have read your post a couple of times and it does escape me how the sources you have referred proves (or for that matter even states) that a mortgage deed must be signed by the lender.

 

As you know from silver queen maritime paragraph 116 confirms that the signature of the grantee was required as it was an escrow condition as stipulated in an email dated 21 July 2009. As you also know a borrower does not request any such similar escrow condition.

 

"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 deed between the Borrower and the Lender must be 'absolute'(signed by both the lender and the borrower) .....

 

Absolute does not mean signed by the lender and borrower, absolute means unconditional. As per Longman v Chelsea an unconditional deed (absolute if you will) takes effect immediately, a conditional deed (either escrow or given to an agent) becomes a deed after a certain event.

 

Furthermore, if we refer to Chitty on Contracts (31st Edition, volumes 1 & 2), page 88 section 1-113

 

"delivery is effective even though the grantor retains the deed in his own possession. There need be no actual transfer of possession to the other party"

 

So the above which is not my personal opinion, I have not interpreted and I am not going to tell people what it means being from Chitty on Contracts (Chitty on Contracts is one of the leading textbooks covering English contract law) states delivery can be effective whilst the deed is retained by the grantor (the borrower).

 

Naturally, we know that mortgage deed is not retained by the borrower as it is sent to the HMLR for registration.

 

However, it does raise the question - if you are correct how can a grantee sign a deed, if it is retained by the grantor ?

 

Something to consider perhaps

 

Ben

Edited April 8, 2013 by bhall

[bhall]

and....from 'Answers.com':-

 

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, and in some jurisdictions sealed. A deed, also known as an instrument in solemn form, is the most formal type of private instrument requiring not only the maker of the deed (grantor, transferor) but also attesting witnesses as signatories. A deed has therefore a greater presumption of validity and is less rebuttable than an instrument under hand, i.e., signed by the party to the deed only, or an instrument under seal. A deed can be unilateral or bilateral. Deeds include conveyances, commissions, licenses, patents, diplomas, and conditionally powers of attorney if executed as deeds. The deed is the modern descendant of the medieval charter, and delivery is thought to symbolically replace the ancient ceremony of livery of seisin.[1]

The use of attesting witnesses has replaced to a large extent the former use of seals to create a higher degree of formalism; this explains the traditional formula signed, sealed and delivered and why agreements under seal are also called contracts by deed. Where the use of seals continues, deeds are nothing more than a special type of instrument under seal, hence the name specialty for a contract under seal. Specialties differ from a simple contract, i.e., a contract under hand, in that they are enforceable without consideration (i.e. gratuitous), in some jurisdictions have a liability limitation period of double that of a simple contract, and allow for a third party beneficiary to enforce an undertaking in the deed, thereby overcoming the doctrine of privity.[2] Specialties, as a form of contract, are bilateral and can therefore be distinguished from covenants, which, being also under seal, are unilateral promises.

At common law, to be valid and enforceable, a deed must fulfill several requirements:

It must state on its face it is a deed, using wording like "This Deed..." or "executed as a deed".

It must indicate that the instrument itself conveys some privilege or thing to someone. This is indicated by using the word hereby or the phrase by these presents in the clause indicating the gift.

The grantor must have the legal ability to grant the thing or privilege, and the grantee must have the legal capacity to receive it.

It must be executed by the grantor in presence of the prescribed number of witnesses, known as instrumentary witnesses (this is known as being in solemn form).

A seal must be affixed to it. Originally, affixing seals made persons parties to the deed and signatures were optional, but most jurisdictions made seals outdated, and now the signatures of the grantor and witnesses are primary.

It must be delivered to (delivery) and accepted by the grantee (acceptance).

Conditions attached to the acceptance of a deed are known as covenants. A deed indented or indenture is one executed in two or more parts according to the number of parties, which were formerly separated by cutting in a curved or indented line known as the chirograph.[3] A deed poll is one executed in one part, by one party, having the edge polled or cut even, and includes simple grants and appointments."

 

If you are going to use answers.com, you might aswell use wikipedia too

 

https://en.wikipedia.org/wiki/Deed#Requirements

 

Requirements

 

At common law, to be valid and enforceable, a deed must fulfill several requirements:

 

• It must state on its face it is a deed, using wording like "This Deed..." or "executed as a deed".
  
• It must indicate that the instrument itself conveys some privilege or thing to someone. This is indicated by using the word hereby or the phrase by these presents in the clause indicating the gift.
  
• The grantor must have the legal ability to grant the thing or privilege, and the grantee must have the legal capacity to receive it.
  
• It must be executed by the grantor in presence of the prescribed number of witnesses, known as instrumentary witnesses (this is known as being in solemn form).
  
• A seal must be affixed to it. Originally, affixing seals made persons parties to the deed and signatures were optional, but most jurisdictions made seals outdated, and now the signatures of the grantor and witnesses are primary.
  
• It must be delivered to (delivery) and accepted by the grantee (acceptance).
  

The signature of the grantee (the lender) is not one of the above requirements

[bhall]

Hi Apple, just as a matter of interest, are you aware of this theory being tested more recently in the courts by anyone and winning or about to be tested?

 

That's not a sarcastic attempt to be clever, I'm asking in all sincerity.

 

Cheers

 

A1

 

Hello A1

 

Chitty was published on 24 October 2012, it confirms that delivery is unrelated to the signature of the grantee (in the case of a mortgage deed - the lender). Delivery is related to the intention of the grantor (in the case of a mortgage deed - the borrower) to be bound by the deed.

 

As per my previous post this intention can be demonstrated by the deed being sent to the HMLR for registration. It would be very hard to argue that a borrower that had executed a deed, provided it to his agent, who had then sent it to the HMLR for registration did not intend to be bound by it.

 

A lender can show that

 

• the mortgage deed has been executed as a deed by the borrower
  
• the mortgage deed has been witnessed (attestation)
  
• funds were released (evidence of acceptance by the lender)
  
• the mortgage deed had been sent to the HMLR (evidence of the intent of the borrower to be bound by the deed - being delivery)
  

Executed - Attestation - Acceptance - Delivery

[bhall]

and....from 'Answers.com':-

 

and.... from justanswer.com

 

Customer Question

 

My mortgage deed is not signed or sealed by the mortgage provider and part of the address, although now correct, has been subject to correction. I belive that the deed may have been added to / altered / corrected after I signed it. The deed I refer to is that annexed to the HM Land Registry Charge Certificate. Does this contravene the Land Registry Act and therefore the registered charge?

 

In response to the above question, a solicitor with 25 years experience said-

 

"a mortgage deed is never signed by the mortgage provider and provided the correct title number is XXXXX then the deed is valid"

[bhall]

Another question from justanswer.com

 

question -

 

"Hi, When a mortgage Deed is signed for a Uk residential mortgage, can you explain a couple of things to me please?

 

Why it is only the borrower that signs and witnesses the document? Why doesn't the lender sign it? "

 

answer-

 

"the mortgage deed is signed only by the borrowers as it is a deed that assigns the benefits of a property which they own - it is not a contract

 

the borrower has assigned the interest in the property and given away the right to receive all the benefit of the sale proceeds and the right to unchallengable ownership of their property"

[applecart]

Hi Apple, just as a matter of interest, are you aware of this theory being tested more recently in the courts by anyone and winning or about to be tested?

 

That's not a sarcastic attempt to be clever, I'm asking in all sincerity.

 

Cheers

 

A1

 

Hi Andrew1

 

I've read too many of your posts to even begin to consider that you are being sarcastic in anyway A1; that's not your style : )

 

There is no theory in the decisions in 'Bibby', the 'Adjudicators' judgment or in 'Silver' ....

 

I do not have PM facility, so, I think you can understand that posts are being kept general - I can imagine there are and will be claims being taken and made testing the 'theory' you refer to.....and may be relying on the decisions in 'bibby', 'silver' and the Adjudicators decisions.... it's hard to calculate or confirm the amount until such time as consumers come forward to advise either way.

 

Applecart

[applecart]

Hi Ben

 

Can I ask you......Where is it in the many interesting references that you guide us to that we can see where the Borrowers right to redemption has gone?

 

Apple

[applecart]

If you are going to use answers.com, you might aswell use wikipedia too

 

https://en.wikipedia.org/wiki/Deed#Requirements

 

Requirements

 

At common law, to be valid and enforceable, a deed must fulfill several requirements:

 

• It must state on its face it is a deed, using wording like "This Deed..." or "executed as a deed".
  
• It must indicate that the instrument itself conveys some privilege or thing to someone. This is indicated by using the word hereby or the phrase by these presents in the clause indicating the gift.
  
• The grantor must have the legal ability to grant the thing or privilege, and the grantee must have the legal capacity to receive it.
  
• It must be executed by the grantor in presence of the prescribed number of witnesses, known as instrumentary witnesses (this is known as being in solemn form).
  
• A seal must be affixed to it. Originally, affixing seals made persons parties to the deed and signatures were optional, but most jurisdictions made seals outdated, and now the signatures of the grantor and witnesses are primary.
  
• It must be delivered to (delivery) and accepted by the grantee (acceptance).
  

The signature of the grantee (the lender) is not one of the above requirements

 

Hi Ben

 

Can you remind us of the difference between Common Law and Statute please?

 

and.... can you assist me understand fully why the last bullet point from the info from wikipedia says:

 

"It must be delivered to (delivery) and accepted by the grantee (acceptance)'

 

Are we to understand that we should skip that last bullet point?

 

Apple

[applecart]

Hi Ben

 

You aren't having another one of your outburst are you? : )

 

Please calm down... we don't want you bursting a blood vessal....your posts are brilliant - they provide a 'balance' - viewers will make up their own minds mate....stay calm - ok?

 

Apple

[applecart]

Another question from justanswer.com

 

question -

 

"Hi, When a mortgage Deed is signed for a Uk residential mortgage, can you explain a couple of things to me please?

 

Why it is only the borrower that signs and witnesses the document? Why doesn't the lender sign it? "

 

answer-

 

"the mortgage deed is signed only by the borrowers as it is a deed that assigns the benefits of a property which they own - it is not a contract

 

the borrower has assigned the interest in the property and given away the right to receive all the benefit of the sale proceeds and the right to unchallengable ownership of their property"

 

My answer to this would be ......because since 2005, the 1989 Act has not been updated to reflect the fact that in relation to an individual signature s. 1 (3) should read as' it is delivered' not 'it is delivered by him or a person authorised to do so on his behalf' the amendment now means that where before there was an irrebuttle presumption of 'delivery' - this was removed by the 2005 Order..... 'delivery' is now founded on the old interpretation of delivery, it is no longer possible to presume delivery has taken place by the mere handing over of the document....

 

Apple

[bhall]

I have posted some information in another thread that may be of interest to readers of this thread. Instead of copying it all here, this is a link to the information I have posted

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?335240-TMB-Securitisation&p=4201210&viewfull=1#post4201210