Deeds high court ruling void what a twist

[applecart]

I've just seen this thread. I kept away from referencing anything to do with the FTT decision on the CaG out of respect for the CaG's decision to close the threads that related to it.

 

However, it would seem the discussion continues - albeit under the guise of a case that recently reared its head (the comments herein do not reflect the end result by the way - for an update see here: http://self-realisation.com/equity/banksterbusters/bos-drops-legal-objection-to-cancellation-of-void-mortgage/)

 

Conscious as I am that those on this thread led us to believe that Banks can rely on the fact that they do not sign the deed on the premise that it is a UNILATERAL DEED - may be interested to comment on this recent case:

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/28.html

 

Comments appreciated as always.

 

 

Apple

[applecart]

Ben - I know you are passionate about what went before - I'd hoped that perhaps you'd be good enough to share more of your passion and provide comments on the case I posted to do with 'Unilateral contracts'.

 

Particularly, I had hoped you might comment where the judge said:

 

[31] -I would therefore dismiss the appeal. It is not, in these circumstances, necessary to deal with the Bank's alternative case based on its respondent's notice. I should, however, make it clear that I am far from persuaded that the Bank would be entitled to succeed regardless of the effectiveness of its unilateral notice.

 

Link again: http://www.bailii.org/ew/cases/EWCA/Civ/2014/28.html

 

However, I'm more than happy to accept you exercising your perogative not to comment on the Unilateral Contracts case at this time.

 

Perhaps I can invite you to comment on this case instead:

 

http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2013/%5B2013%5D%20NICh%2014/j_j_DEE8994Final.htm

 

The Judge in this case considered Paragan v Pender - his final comments were:

 

[9] In all those circumstances I conclude therefore that the appeal should succeed and I reverse the order of the Learned Master, making it clear that this is no reflection on him, and strike out the order for possession.

 

This case dealt with a Bank's representative (Santander) misrepresenting the facts in a court of law - Of course, I will respect your decision if you decide not to comment on the case.

 

Apple

[applecart]

Not at all Crapstone - Not at all!

 

Do you care to comment on the cases posted?

 

Perhaps you followed my alleged 'fanciful' advice - these cases appear to be successful, where I am alleged to have failed.

 

Comment on the cases - not what went before - that's the proposition.

 

Do you find issue with these new cases Crapstone? - Where are they likely to fail consumers? That's what folk want to know - can you assist them??????

 

 

 

Apple

[applecart]

Thanks for your comments SP

 

Crapstone - no problem

 

CitizenB - Thank you.

 

SP

 

In relation to the BOS v Waugh case - A poster on another forum was of the opinion that:

 

"It is like the guy that wrote the about the waugh case on the self realisation site hasn't read the actual case

http://www.bailii.org/ew/cases/EWHC/Ch/2014/2117.html"

 

I've commented there to say:

 

Unlike 'shah v shah' - in BOS v Waugh the deed had not been witnessed at all

 

In 'shah' the deed had been witnessed - their claim was that the witness was not present at the time the deed was executed -

 

In BOS v Waugh - The Bank tried to rely on its - 'Terms of the Charge' at clause 15 and POA - distinctively different scenarios I think all can agree?

 

The terms relied on by BOS were:

 

'Terms of the charge'

 

[27] In the light of the Bank's fall back arguments it is necessary to set out some of the terms of the charge:

 

[28] Under clause 2 the Trustees charged Asquorn House as security for the Secured Liabilities.

 

[29] By clause 3 the charge incorporated the Standard Conditions. Those conditions define the secured liabilities as "all sums of money owed and all liabilities or obligations to be carried out by you as at any time and from time to time …"

 

[30] Condition s 14 and 15 provide

 

You shall take whatever steps and execute whatever documents we may require for:

 

14.1. The purpose of perfecting and giving effect to the Charge

 

15.1. You by way of security, irrevocably appoint us and any Receiver and each one severally to be your attorney (with full power to delegate) for you and in your name and as our act and deed:

 

15.1.1. To execute as a deed and perfect all deeds … which you ought to execute under the obligations and provisions contained in these Conditions …

 

The Bank accepted that because the Waughs signature had not been witnessed - the charge was not a Deed - Reliance upon the POA was of no use.

 

[86] - "In his oral submissions Mr Wilson suggested that the Bank could rely on clause 15 of the Standard Conditions to enable it to execute any necessary documents pursuant to the Power of Attorney created by that clause. Following the hearing he has written to the court drawing my attention to section 1(1) of the Power of Attorney Act 1971 and a passage from paragraph 15 in Halsbury Laws Vol 1 5th Ed on Agency to the effect that a power of attorney must be created by deed and that if power is to be given to an agent to execute a deed that power must be given by a deed. Thus he now accepts that the Bank cannot rely on clause 15. He submits that instead the Court should order the Trustees to execute any documents necessary for perfecting the Legal Charge. In the event that the Trustees fail to execute them the Court has inherent power to direct that an officer of the Court execute them on behalf of the Trustees."

 

POA 1971 s.1:

 

1 Execution of powers of attorney.

 

(1)An instrument creating a power of attorney shall be [F1executed as a deed by] the donor of the power.

 

The signatures of the Waugh's were not witnessed - the document had not been 'executed as a deed'

 

S 52 of the Law of Property Act 1925

 

[59] Under this section all conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.

 

Question begs, if the document was accepted by the Bank as NOT being a 'deed' for POA purposes - how or why on earth did they believe it would miraculously become a 'Deed' for s.52 purposes - even though the Deed had IN FACT been signed by themselves and the Waugh's btw...

 

As we ALL know - the Deed - had been signed by the Waugh's and the Bank in this case - had the Waugh's signatures been duly attested - then it would have been spot on - not only for s.1 of the POA 1971 but also for s. 52 of the LPA 1925 purposes.

 

The LPA 1925 s.53 - which Banks have a tendency to rely on in the lower courts - (given the findings in the BOS v Waugh case) I'm afraid - remain an issue.

 

IT WAS BY NOV 14 - the Waugh's say:

 

"Twenty months after our application to have a void and illegal mortgage canceled and removed from the Charges Register by the Land Registrar at Durham Land Registry, Bank of Scotland has withdrawn its entirely bogus legal objection to its removal and requested that the Property Chamber [which replaced the Land Registry adjudicating service and has been sitting on the vigourously disputed application since the first day of July 2013], inform the Land Registry that the existing entries in the register pertaining to the bank’s purported legal mortgage over a commercial property [as well as the appointment of LPA Receivers], should be canceled as soon as possible."

 

I don't see how HMLR could do anything other than remove the charge - the underlying deed was defective. The Waugh's were not estopped. a registered charge does not guarantee its validity under the LRA s.51 I'm afraid.

 

What about those 'unilateral notices' that end up registered against folks titles? - what about LPMPA 1989 s.2 - given that s.40 LPA 1925 was superseded by this section.

 

Here's a case that looked into Unilateral notices - it's worth a read.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/28.html

 

So, I can't see any reason why the Waugh's would be untruthful or look to mislead anyone as to the outcome of their case really. It all seems to stack up.

 

 

Apple

 

link to the Waugh's self realisation thread: http://self-realisation.com/equity/banksterbusters/bos-drops-legal-objection-to-cancellation-of-void-mortgage/

[applecart]

Those cases are all well and good, but I can't see that either of them have anything to do with whether or not the mortgage lender signed the deed.

 

SP

 

From the BOS case:

 

6 Claim for an equitable charge

 

Points of Law

 

It is again necessary to set out a number of points before turning to the facts of the case.

 

Equitable Mortgage

 

A document, which for some defect of form (but which is otherwise valid) fails to take effect as a legal mortgage will (subject to section 2 of the 1989 Act) be a good equitable mortgage. The basis of this is the court's power specifically to perform a contract to create a legal interest in land. See Fisher & Lightwood Law of Mortgage 13th Ed at par 3.6 and the cases cited at footnotes 1 and 2.

 

Section 2 of the 1989 Act

 

This section provides:

 

(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contract are exchanged, in each.

(2) The terms may be incorporated in a document either by being set out in it or by reference to some other document.

 

In this case the Charge was signed by both the Trustees and on behalf of the Bank. It expressly incorporated the Standard Terms.

 

Discussion

 

[85] It seems to me that the above principles apply directly to the Legal Charge. It was not executed as a Deed and thus did not take effect as a legal charge. However it was signed by the parties and did contain all the terms that had been agreed and thus took effect as an equitable mortgage.

 

 

link: http://www.bailii.org/ew/cases/EWHC/Ch/2014/2117.html

 

 

 

Apple

[applecart]

SP

 

Thanks for your 'comments' - much appreciated.

 

Apple