Repossession questioned by deeds not being signed

[bhall]

Legal Mortgages of Registered titles under the LRA 2002

 

By virtue of SECTION 23(1) of LRA 2002, the legal charge is the only permissible method of creating a legal mortgage of a registered freehold or leasehold estate. SECTION 23(1) contemplates two ways a registered title may be 'charged' so as to create legal mortgage: first is the usual 'charge by deed expressed to be by way of legal mortgage'; and the second is the less common method of simply charging the land with the payment of money.

SECTION 87 of LPA 1925, the charge must be made by deed, and it must be expressed to be by way of legal mortgage: it must declare itself to be a 'legal mortgage made by charge'. This section makes it clear that a chargee obtains the same protection powers and remedies as if the mortgage has been created by a long lease of 3000 years in the old way. For both borrowers and lenders, the charge represents a quick, easy, economical and simple way of mortgaging land.

 

Registration of Legal Mortgages under the LRA 2002

 

Before mortgage can take effect, must be registered as a 'registrable charge' against that title. This will show the mortgagee as the proprietor of the charge and will ensure both that it takes effect as a legal interest and that it amounts to a 'registered disposition'. In the absence of such registration, mortgagee only has an equitable interest and may lose its right to priority over the land in the event that the mortgagor disposes of the legal title by a registered disposition. Come e-conveyancing, registration of mortgages will occur simultaneously. It will also eliminate any lingering issues that remain over the 'registration gap'.

 

 

Sorry if the above is the opposite if some of the fanciful ideas found in this thread.

[bhall]

Mortgage by legal charge

 

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

 

To protect the lender, a mortgage by legal charge is usually recorded in a public register. Since mortgage debt is often the largest debt owed by the debtor, mortgage lenders run title searches of the real property to ensure that there are no mortgages already registered on the property which might have higher priority. Tax liens, in some cases, come ahead of mortgages. For this reason, if a borrower owes property tax arrears, the mortgage lender may pay them to forestall a foreclosure by the lienholder which would wipe out the mortgage.

 

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

 

The mortgage by legal charge is also known as standard security in Scotland.

 

Mortgage by demise

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

 

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

 

 

Again apologies that the above is different to the fanciful ideas posted in this thread

[bhall]

http://peisker.net/ffa/5-Mortgages.htm

 

 

 

I. The nature of mortgages

 

1. Morgages are one form of real security (as opposed to personal security - as where a person stands surety for a debt).

Real security may also take the form of pawning (this is for chattels only).

The term 'mortgage' derives from an ancient practice by which the borrower conveyed the land to the lender with a proviso for reconveyance should the loan be paid by a certain date; if the loan was not repaid on time the land became a 'dead pledge' ('mortgage') forever to the borrower, for it became the property of the lender. Mortgages are no longer created that way.

 

2. Forms of mortgages

The forms they take today are largely the creation of the Property Acts. They fall into two main groups:

a) Legal mortgages may take two forms:

aa) Mortgages by way of demise (lease): The freeholder will grant the lender by way of deed of term of years absolute (usually for 3,000 years) with the proviso that if the principal loan and interest are paid by a certain date (usually six months from the loan), the term of years shall cease to have effect. The lender will become absolutely entitled to his 3,000-year term once the agreed date for repayment is past; neither will the loan usually be intended to be repaid by the agreed date. A leaseholder may likewise mortgage the property if he sub-lets it to the lender; the sub-demise will usually be ten day shorter than his own lease.

A further mortgage may be created by granting a term of 3,000 years and one day, respectively by sub-letting the property a second time for a period nine days shorter than one's own lease.

bb) Charge by way of legal mortgage: By deed, a charge is created by way of legal mortgage without the indication of any term of years thereby created. Once executed, it gives the same reciprocal rights as a mortgage by way of demise.

This also applies to leaseholders.

A further mortgage may be created in the same manner.

b) Mortgages of equitable interests can only be equitable; whereas mortgages of legal interest can be both legal and equitable.

aa) Equitable mortgages are created by way of an assignment of the equitable interest concerned, with a proviso for redemption upon payment by the mortgagor of principal and interest. The assignment must be in writing.

bb) 'Equity looks on that as done which ought to be done'. If in consideration of money advanced, A agrees to grant B a legal mortgage, but fails to do so, B has a form of equitable mortgage, which the courts will uphold, provided he can evidence the agreement in writing or supported by a sufficient act of part performance.

cc) An equitable mortgage also arises where title deeds are merely deposited with someone, other than the owner, as security for a debt, without any formal mortgage document. It is however advisable for the mortgagee to insist upon a the execution of a memorandum under a seal (i.e. a deed), because this will give him a better remedy.

dd) An equitable charge (!) arises whenever there is a written agreement to treat property as security for a debt.

 

3. Mortgages of registered land

Where a holding is registered the two more important ways of mortgaging it are:

a) By way of registered charge: This is a legal interest which can only be created by deed. It may take the form of mortgage be demise (freehold) or sub-demise (leasehold) or by way of charge by way of legal mortgage. Such a charge will only become a legal estate by entry on the register. When it is so entered the mortgagee receives a 'charge certificate' and the land certificate is deposited at the Land Registry during the continuance of the mortgage.

b) A registered proprietor may create a mortgage by depositing the land certificate with the mortgagee; this (provided that written notice is given to the Land Registry and an appropriate entry is made on the register) will give the mortgagee an effective lien similar to an equitable mortgage.

 

 

II. The rights of the mortgagor

 

1. The right to redeem

a) Common law: the mortgagee obtaines an indefeasible right to his lease or to the property.

b) Equity: 'Look at the intent rather than the form'. A mortgage is in essence no more than a security as opposed to a conditional contract of 'sale'. Equity gave the mortgagor an equitable right to 'redeem' (recover) the land at any time until sale or foreclosure by the mortgagee, provided he has repaid the principal loan with interest to date.

No matter how a loan/mortgage agreement is cloaked ('lease in return for a loan'), equity will insist what is 'Once a morgage, [is] always a mortgage'. The 'equity of redemption' is inviolable.

c) Equity further insists that there must be 'no clog on the equity'. This means two things:

aa) Where the agreed perdiod of repayment is unreasonable long, such a covenant will not be countenanced by a court. In a business agreement, a repayment period of 40 years for a L 310,000 loan at 5.25 % upon a mortgage of some very valuable property in London was reasoble: KNIGHTSBRIDGE ESTATES v. BYRNE (1939). But in a private agreement for a small loan upon property of little value this would not be upheld. Where a transaction as a whole is illegal, the right to redeem is granted at any given time.

bb) Once the money has been repaid and the land 'redeemed' the matter is at an end. The mortgagee must not reap other collateral advantages.

But this rule is relaxed where both parties are on equal bargaining terms:

MULTISERVICE BOOKBINDING LTD. v. MARDEN (1979) - the sum to be repaid had been linked to the Swiss Franc, which meant that the mortgages had to repay an amount considerably greater (in Sterling) than the actual amount of the loan.

 

2. The right to grant leases

Where, as normally will be the case, the mortgagor is in possession of the land, he has a limited right to lease it.

 

 

III. The powers and remedies of the mortgagee

 

1. The right to enter possession

The lease granted is a security; the mortgagee will normally not take advantage of it. He may do so, however, in or- der to keep down interest on the loan by paying himself out of the rents and profits arising from the land. But the court will exercise stringent supervision over him; he is strictly accountable, not only for what he actually re- ceives, but also for what he ought to have received by the exercise of due diligence. A court order is not necessary unless there is a regulated agreement which falls under the Consumer Credit Act 1974.

 

2. The right to foreclose

Equity: If a debt be unpaid for an unreasonable time beyound the agreed repayment period, the mortgagee may 'fore- close' by obtaining an order of the court that the land shall become his unless payment in full is made by a certain date.

The order becomes 'absolute' and the mortgagor loses all rights to the land unless he can persuade the court to re-open the order at a later date.

 

3. The right to sell

Under certain conditions, he has a statutory power to sell the whole of the mortgagor's interest in the land. He is not al- lowed to keep any surplus proceeds arising from the sale. He owes (similar to a trustee) a duty of care to the mortgagor; he has to obtain a reasonable price for the land. A court order is not necessary unless there is a regulated agreement which falls under the Consumer Credit Act 1974.

 

4. The right to sue upon the personal covenant

The repayment covenant is an ordinary contract. The morgagee may sue for repayment any time after the expiry of the repayment period.

 

5. The right to appoint a receiver

With a view to obtaining repayment of the interest, the mortgagee may exercise a statutory power of appointing a recei- ver to receive on his behalf the rents and profits arising from the land. The receiver is deemed to be the agent of the morgagor, and the mortgagee thus avoids the disadvantage of strict accountability to which, if he were to enter into possession, he would be subject.

 

 

 

Special attention is drawn to 3. Mortgages of registered land - something claimed to be impossible by this thread

[bhall]

Something else to read

 

http://www.parliament.uk/Templates/BriefingPapers/Pages/BPPdfDownload.aspx?bp-id=SN04837

[applecart]

Hi Ben

 

I've looked at '3'

 

It totally contradicts that which we know of LRA 2002 section 23 in relation to a Borrowers powers......there is no power to do any of that which you post at '3'

 

Have you got any info that is more up to date....??

 

What do you think of the 'duff' decision?

 

Apple

[applecart]

It would seem that Ben is more pre-occupied with posting up old out dated info...that living in the real hear and now world.....

 

Anyone noticed....he always finds it difficult to answer my questions???

 

Apple

[applecart]

Ben?????

 

Where are you... what are your thoughts to getting an email off to the Chamber to defeat what can only be referred to as 'propaganda' being sent to applicants???

 

As far as I know the request was made long before the 'lamb' decision was put in the public domain..... in fact.... no one has reported the finding of the Chamber as yet....all are reporting only the decision of the 'lab' case on its own...... Where is the Chambers decision to say it has been 'struck out'..... surely.... that needs to be forthcoming .... if not attached????

 

 

Ben, you are reliable source for our enquiries...can you assist with this please???????

 

Ben?.... Ben??? where are you??

 

I hope I have not offended you ; (

 

Ben??

 

Apple

 

Like the above.....no answer???

 

Apple

[bhall]

I can appreciate and understand some Caggers being hostile to my contributions to this thread, as I am not saying things that people want to be told or telling people things that make them feel better. As a result my contributions are questioned and undermined.

 

Therefore, I would ask those that don't believe what I have previously posted, as it isn't what they want to hear, to stop for a moment and look at the third party sources that I have posted. The insistence that a borrower can't grant a legal mortgage is as I think someone else said before going into the realms of being crazy.

 

Not because it would result in all mortgages of registered land being invalid but because it is just plain wrong and not what the law actually says.

 

If anyone bases their claim to the property chamber during the hearing on that basis, I fear the judges eyes will just glaze over and all will be lost.

 

Let's look at this point on the balance of probabilities being what is more likely than not. Is it more likely than not that everyone for nearly 100 years has misunderstood the law that applies to mortgages ?

 

You are talking about successive governments, regulatory bodies, the entire finance industry, the entire judiciary, solicitors, everyone on the clapham omnibus and all the subsequent legislation such as the FSMA 2000 (with regard to mortgage regulation). Even the name of this sub forum would be wrong.

 

Or is it more likely than not that Apple knows more and understands more through the mystical power of interpretation about property law than all those that preceded Apple ?

 

No offence to Apple but seriously ??

[bhall]

Expectations need to be realistic

[applecart]

Expectations need to be realistic

 

And .... your 'realistic' opinion on the 'duff' case???.....

 

Apple

[applecart]

I can appreciate and understand some Caggers being hostile to my contributions to this thread, as I am not saying things that people want to be told or telling people things that make them feel better. As a result my contributions are questioned and undermined.

 

Therefore, I would ask those that don't believe what I have previously posted, as it isn't what they want to hear, to stop for a moment and look at the third party sources that I have posted. The insistence that a borrower can't grant a legal mortgage is as I think someone else said before going into the realms of being crazy.

 

Not because it would result in all mortgages of registered land being invalid but because it is just plain wrong and not what the law actually says.

 

If anyone bases their claim to the property chamber during the hearing on that basis, I fear the judges eyes will just glaze over and all will be lost.

 

Let's look at this point on the balance of probabilities being what is more likely than not. Is it more likely than not that everyone for nearly 100 years has misunderstood the law that applies to mortgages ?

 

You are talking about successive governments, regulatory bodies, the entire finance industry, the entire judiciary, solicitors, everyone on the clapham omnibus and all the subsequent legislation such as the FSMA 2000 (with regard to mortgage regulation). Even the name of this sub forum would be wrong.

 

Or is it more likely than not that Apple knows more and understands more through the mystical power of interpretation about property law than all those that preceded Apple ?

 

No offence to Apple but seriously ??

 

I don't think it is 'personal'....all that's happening is that you happen to be posting your opinions on a thread that asserts the LAW......your posts are being found to be more party to the circumvention of the LAW.....

 

For that... you may have to consider that you have only yourself to blame really......

 

I remember you saying you have 'broad shoulders'.... so, you know what?..... I think you'll be fine : )

 

Apple

[bhall]

http://www.propertyaddict.com/mortgages/

 

 

What is a mortgage?

 

A mortgage in it's most simple of terms is a pledge by a lender - normally a building society or bank - of a property to be used as security on a loan. Normally the mortgage will cover a fixed fee which will be the cost of purchasing a property, however some mortgage providers will lend more than the property worth allowing the borrower to receive a cash sum back; this is commonly known as cashback. In nearly all cases the borrower will also be expected to pay the lender interest over the term of the loan.

 

The term "mortgage" derives from the Old French term "dead pledge" which means that the pledge ends when the obligation is fulfilled or - in the worse case - the property is taken by the lender via foreclosure.

 

Mortgage by legal charge

This is the only type of legal mortgage available at the current time in the UK, there was previously and older type of mortgage known as "mortgage by demise" but this type of mortgage was abolished in the Land Registration Act 2002. In Scotland this type of mortgage is also know as "standard security".

 

A mortgage by legal charge means that the borrower remains the legal owner of the property in question throughout the mortgage loan period. However, the lender retains sufficient rights over the property to be able to enforce foreclosure and repossess the property if the borrower defaults on their mortgage payments.

 

 

Attention should be drawn the distinction between a mortgage by demise and a mortgage by legal charge. A distinction ignored in the application to the chamber and repeatedly by this thread

[bhall]

This may also help to clarify the distinction between a mortgage by demise and a mortgage by legal charge - highly relevant to this thread due to the content if the application made to the property chamber and the claims made in this thread

 

http://www.londonlettingagency.com/buypropertylondon.html

 

 

Mortgage

 

A mortgage is a method of using property (real or personal) as security for the payment of a debt. The term mortgage (from Law French, lit. death vow) refers to the legal device used in securing the property, but it is also commonly used to refer to the debt secured by the mortgage, the mortgage loan. In most jurisdictions mortgages are strongly associated with loans secured on real estate rather than other property (such as ships) and in some cases only land may be mortgaged. Arranging a mortgage is seen as the standard method by which individuals and businesses can purchase residential and commercial real estate without the need to pay the full value immediately.

 

There are essentially two types of legal mortgage.

 

Mortgage by Demise

 

In a mortgage by demise, the creditor becomes the owner of the mortgaged property until the loan is repaid in full (known as "redemption"). This kind of mortgage takes the form of a conveyance of the property to the creditor, with a condition that the property will be returned on redemption. This is an older form of legal mortgage and is less common than a mortgage by legal charge. It is no longer available in the UK, by virtue of the Land Registration Act 2002.

 

Mortgage by legal charge

 

In a mortgage by legal charge, the debtor remains the legal owner of the property, but the creditor gains sufficient rights over it to enable them to enforce their security, such as a right to take possession of the property or sell it. To protect the lender, a mortgage by legal charge is usually recorded in a public register. Since mortgage debt is often the largest debt owed by the debtor, banks and other mortgage lenders run title searches of the real property to make certain that there are no mortgages already registered on the debtor's property which might have higher priority. Tax liens, in some cases, will come ahead of mortgages. For this reason, if a borrower has delinquent property taxes, the bank will often pay them to prevent the lienholder from foreclosing and wiping out the mortgage. This type of mortgage is common in the United States and, since 1925, it has been the usual form of mortgage in England and Wales (it is now the only form - see above). In Scotland, the mortgage by legal charge is also known as standard security.

[bhall]

As you can see, all of the third party sources directly contradict the assertions made in this thread.

 

Think why that would be ?

 

Is it because all of those sources are part of a huge conspiracy ? All those sources have misunderstood property law or could it be that the assertions made in this thread are wrong.

 

Balance of probabilities points towards the assertions being wrong

[applecart]

As you can see, all of the third party sources directly contradict the assertions made in this thread.

 

Think why that would be ?

 

Is it because all of those sources are part of a huge conspiracy ? All those sources have misunderstood property law or could it be that the assertions made in this thread are wrong.

 

Balance of probabilities points towards the assertions being wrong

 

I personally prefer someone say 'I have no opinion'.....rather than post 'opinions' of persons who will never adjudge any of the applications made to the Chamber to be honest....

 

I take it ... you have no opinion on the 'duff' case then?

 

Thanks anyway...

 

Good night

 

Apple

[lesterlass]

I personally prefer someone say 'I have no opinion'.....rather than post 'opinions' of persons who will never adjudge any of the applications made to the Chamber to be honest....

 

I take it ... you have no opinion on the 'duff' case then?

 

Thanks anyway...

 

Good night

 

Apple

 

 

Irish property law is different to English. A1 knows more on this than me, maybe he will expand on it?

 

 

LL

[applecart]

Hi All

 

This document is headed up:

 

"Notes on the jurisdiction of a Circuit Judge; on the main duties of a judge sitting in the Chancery Division and in the Queen’s Bench Division; and notes of the jurisdiction of the Queen’s Bench Division and Chancery Division."

 

http://jac.judiciary.gov.uk/static/documents/00453_noj.pdf

 

Hope you all find it useful?

 

Apple

[MUTT1]

Hi apple,

 

Just seen the time of your last post, a quick question, do you happen to have two, long, pointed front teeth and, wear a black cape?

 

Only kidding.

 

MUTT1

[IS IT ME?]

good morning every one, even Ben lol,

Had a great Dinner out last night with a couple of Judges would you believe and a lot of talking and great port (like silk ) just like them oh I made a joke.

 

It was clear that this thread even when discussed like it was could not come to a conclusion and was left for ours to think about just like here.

 

I would note that Ben like one of the judges last night could not answer or by passed the question which was put.

 

may be just may be we are RIGHT and this is one hell of a problem for the courts which if as one of the judges stated ' if you do not put the point in the right order then we are not to look for it '

so it is MOST important that the RIGHT points and questions are put.

Ben I would ask now for the right to have some peace from your long posts which have NEVER changed but posting up the same old thing and get to grips which what is before the chamber and if you can not help then leave it to those who wish too.

I hope that I do not up set you.

[MUTT1]

Hi bhall,

 

Would you be willing to answer a couple of questions? The first you might find personal and reluctant to answer which I fully understand and appreciate. Have you ever had a mortgage or secured loan? If so have you ever been in arrears? Have you ever experienced the threat of repossession.

 

As I have said, you have an absolute right not to answer but, I think that you will agree, that if you fail to do so and, after posting so much information on this thread, other posters could view you as someone that is commenting on something without actually having any real life experience of having a mortgage and all of the problems that can suddenly emerge.

 

Please feel free to ask me the same questions and I will have absolutely have no problem in giving all the answers that you need.

 

Another if you would? What would you consider the requirements to be as to the wording required on a deed, would you expect the words legal, charge etc. to be shown somewhere on the document?

 

This is not a snipe at you Ben, just giving you the opportunity to clarify one or two things.

 

MUTT1

[applecart]

Hi apple,

 

Just seen the time of your last post, a quick question, do you happen to have two, long, pointed front teeth and, wear a black cape?

 

Only kidding.

 

MUTT1

 

No Problem.... ; )

 

Passionate....committed...determined...in the interest of Justice......

 

For that......you've Just got to go the extra mile!!

 

Ben was up late too.......

 

Apple

[applecart]

Irish property law is different to English. A1 knows more on this than me, maybe he will expand on it?

 

 

LL

 

Yep...all input, comments are more than welcome.....

 

Thanks LL

 

Apple

[applecart]

good morning every one, even Ben lol,

Had a great Dinner out last night with a couple of Judges would you believe and a lot of talking and great port (like silk ) just like them oh I made a joke.

 

It was clear that this thread even when discussed like it was could not come to a conclusion and was left for ours to think about just like here.

 

I would note that Ben like one of the judges last night could not answer or by passed the question which was put.

 

may be just may be we are RIGHT and this is one hell of a problem for the courts which if as one of the judges stated ' if you do not put the point in the right order then we are not to look for it '

so it is MOST important that the RIGHT points and questions are put.

Ben I would ask now for the right to have some peace from your long posts which have NEVER changed but posting up the same old thing and get to grips which what is before the chamber and if you can not help then leave it to those who wish too.

I hope that I do not up set you.

 

Judges are the best people to have dinner with.....I want an invite next time you guys get together...... be careful though.....I have a vast appetite... ; )

 

We are 'interim' right now.... just getting as much information on the thread as possible to help borrowers get to grips with how the 'system' works against them....instead of 'for' them......

 

The 'balance of probability' referred to by Ben...has been too heavily weighed in favor of Lenders for far too long......The RRO puts that balance in place and caused us to look back to the LRA 1925 to find that it has NEVER been LAWFUL to 'MORTGAGE' any REGISTERED ESTATE!

 

We are RIGHT!......The issue is..... WILL THE CHAMBER DO US JUSTICE???

 

Ben makes out....we can't read, we can't interpret, We can't articulate, We are full of fanciful ideas etc etc.....If that mistaken belief rocks his boat.....then rock-on I say ; )

 

I agree, we have work to do....the Chamber or someone within the Chamber is throwing up what they mistakenly believe will be an 'obstacle'....Why??

 

Apple

[caro]

One of the (many) things that I fail to understand about this thread is the stubborn resistance to consider counter-arguments that are likely to arise in court. I take my hat off to Ben for sticking with this despite animosity.

 

Apple - you state your interpretation of the law as if it is factually accurate. IMHO you are posting your OPINION and this cannot be considered a statement of fact until proved in court.

 

I wonder where I stand with my mortgage. I signed my mortgage with c&g not Lloyd's who took them over. If Apple is proved right I'll look into it but won't risk it now.

[applecart]

Hi bhall,

 

Would you be willing to answer a couple of questions? The first you might find personal and reluctant to answer which I fully understand and appreciate. Have you ever had a mortgage or secured loan? If so have you ever been in arrears? Have you ever experienced the threat of repossession.

 

As I have said, you have an absolute right not to answer but, I think that you will agree, that if you fail to do so and, after posting so much information on this thread, other posters could view you as someone that is commenting on something without actually having any real life experience of having a mortgage and all of the problems that can suddenly emerge.

 

Please feel free to ask me the same questions and I will have absolutely have no problem in giving all the answers that you need.

 

Another if you would? What would you consider the requirements to be as to the wording required on a deed, would you expect the words legal, charge etc. to be shown somewhere on the document?

 

This is not a snipe at you Ben, just giving you the opportunity to clarify one or two things.

 

MUTT1

 

Now, Now, Mutt1.......I was first in the queue......I want my questions answered first....lol ; )

 

Apple