At this point in time, due to an ongoing shortfall battle, I do not wish to name names. This site has become of vast importance to us and provides a wonderful forum for the exchange of knowledge, I just hope that we are able to publish a 'WE WON' notice soon. My question is over the legality of an unsigned Mortgage Deed, which (God willing) we may find that we have. My understanding is that Mortgage Deeds, from the 27th September 1989, MUST be signed by both parties in order to be legal. If they are not signed the covenants are unenforceable by the lender! This brings a few interesting questions to mind - If the lender has not signed the Mortgage Deed were they even entitled to apply to the Court for repossession of our home? If the lender has not signed the Deed then surely they cannot take us to Court for any shortfall, as they cannot prove that a contract existed? Which is the 'original' Deed, that held at the Land Registry or the copies the lender should have on file? Are all copies of the Deed signed, or is just the Master Copy signed and any other copies notorised? If they cannot win a shortfall case then are we able to sue them (if we had the cash to do so) for I) Illegal repossession of our property. ii) Creating a shortfall where a surplus could have existed, had we been allowed time to sell our property? I am sure that many more questions will arise as time goes by, however any comments or suggestions would be welcome at this stage. Mike.

-- Mike (mike@resdev.freeserve.co.uk), October 04, 2001

Answers

Hi Mike, I totally agree with you, If they are not signed after the date suggested then it cannot be legal and after all going to court is a legal process and if the deeds are not signed then in my opinion the contract is not fully legal and their case would flounder. I believe they know all this thats why they try and push you to make a settlement or threaten bancrupcy to frighten you.Most people are not savvy to the legal process or their rights and I think it's especially so in this country and it's about time we stood up for ourselves and stopped these people from treading all over us and us or fustrations in a positive way and stand up to them all the way. Like you say if we all had money we could sue THEM for illigal repossession and give them a taste of their own medicine. best wishes.

-- boyz (boyz.mo@virgin.net), October 04, 2001.

I'm told by BS's solicitors that there are no mortgage deeds/copies etc held on file...so they are unable to provide details. 18 months and they still continue, after sale of property in 1993,following massive underselling of their security/my property.So where is my contract ? Their claim? .. and all the other threatening letters.. how on earth can any solicitor legally pursue their client's instruction? My next letter is to the Office of Supervision of Solicitors...

-- (NOMORTGAGEDEEDS!@aol.com), October 04, 2001.

More a comment for peoples thoughts.

Having seen a brand new mortgage deed the other day, acting as witness for a neigbour, there is no space on the document for the lender to sign and date. In fact there is on a mention of the conditions and their file number.

-- Matt (mattyc@ntlworld.com), October 05, 2001.

This is interesting. Do you mind me asking, where does your understanding actually come from (that 'Mortgage Deeds, from the 27th September 1989, MUST be signed by both parties in order to be legal')? It would be really useful to have a source for this.

I have to say I'm a bit puzzled by this argument myself because, if as Matt points out, mortgage deeds don't actually seem to have a space for the lender to sign, then where does that leave us? Are we saying that all mortgage contracts are invalid?!

I do recall reading somehting in the Mail on Sunday about this issue of unsigned mortgage deeds - an ex-barrister called Christina Rundle suggested that some deeds might not be valid unless signed by both borrower and lender. I remember thinking then that mortgage deeds are 'under seal', and wondering about how this fact fitted into her argument. Unfortunately the MoS never followed up the story.

-- E Scott (eleanor.scott@btinternet.com), October 05, 2001.

Perhaps the answer lies somewhere in the mortgage conditions booklet. Any thoughts about where to look and I will get a copy from next door to see. Perhaps there is text saying that they do not need to sign?

-- Matt (mattyc@ntlworld.com), October 05, 2001.

just a quick note for Eleanor,about unsigned mortgage deeds take a look at at this webb page you will find it very interesting. http://www.legislation.hmso.gov.uk/acts/acts1989/Ukpga_19890034_en_1.h tm .When you have browsed and deciphered it could you please let us all know what you make of it. Kind regards, Daren

-- Daren Otsay (darenotsay@blueyonder.co.uk), October 05, 2001.

Sorry, made a mistake adress should have read http://www.legislation.hmso.gov.uk/acts/acts1989/Ukpga_19890034_en_1.h tm Regards, Daren

-- Daren Otsay (darenotsay@blueyonder.co.uk), October 05, 2001.

Sorry again,seems to be a problem with this Qs & As server as for the address remove the space from between the h tm at the end of the address Regards again, Daren

-- Daren Otsay (darenotsay@blueyonder.co.uk), October 05, 2001.

Have recieved a few emails from disgruntled readers not being able to find above web page.please mail me direct and i will forward you a copy of the act. Regards Daren

-- Daren Otsay (darenotsay@blueyonder.co.uk), October 06, 2001.

Looking in my law book which show a copy of a mortgage deed or legal charge as they are also known, the deed is signed by the lender and borrower and sealed.The book that I use was published in 1987.

-- boyz (boyz.boz@virgin.net), October 06, 2001.

Below is the Act to which you all refer. The important thing to recognise is in section 5. If you instructed your solicitor to enter into the contract (the mortgage) with bank X, then they can (imho) sign the deeds etc on your behalf or on behalf of the bank. Just because you or the bank haven't personally signed the deed, doesn't make it invalid. Sorry! :-( I am not a lawyer and my advice should not be construed as having any legal effect.

Date in Force: 31 July 1990

(1) Any rule of law which--

(a) restricts the substances on which a deed may be written;

(b) requires a seal for the valid execution of an instrument as a deed by an individual; or

(c) requires authority by one person to another to deliver an instrument as a deed on his behalf to be given by deed,

is abolished.

(2) An instrument shall not be a deed unless--

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

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

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

(a) it is signed--

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

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

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

(4) In subsections (2) and (3) above "sign", in relation to an instrument, includes making one's mark on the instrument and "signature" is to be construed accordingly.

(5) Where a solicitor [, duly certificated notary public] or licensed conveyancer, or an agent or employee of a solicitor [, duly certificated notary public] or licensed conveyancer, in the course of or in connection with a transaction involving the disposition or creation of an interest in land, purports to deliver an instrument as a deed on behalf of a party to the instrument, it shall be conclusively presumed in favour of a purchaser that he is authorised so to deliver the instrument.

(6) In subsection (5) above--

"disposition" and "purchaser" have the same meanings as in the Law of Property Act 1925;

["duly certificated notary public" has the same meaning as it has in the Solicitors Act 1974 by virtue of section 87 of that Act;] and

"interest in land" means any estate, interest or charge in or over land or in or over the proceeds of sale of land.

(7) Where an instrument under seal that constitutes a deed is required for the purposes of an Act passed before this section comes into force, this section shall have effect as to signing, sealing or delivery of an instrument by an individual in place of any provision of that Act as to signing, sealing or delivery.

(8) The enactments mentioned in Schedule 1 to this Act (which in consequence of this section require amendments other than those provided by subsection (7) above) shall have effect with the amendments specified in that Schedule.

(9) Nothing in subsection (1)(b), (2), (3), (7) or (8) above applies in relation to deeds required or authorised to be made under--

(a) the seal of the county palatine of Lancaster;

(b) the seal of the Duchy of Lancaster; or

(c) the seal of the Duchy of Cornwall.

(10) The references in this section to the execution of a deed by an individual do not include execution by a corporation sole and the reference in subsection (7) above to signing, sealing or delivery by an individual does not include signing, sealing or delivery by such a corporation.

(11) Nothing in this section applies in relation to instruments delivered as deeds before this section comes into force.

Annotations:

Commencement order: SI 1990 No 1175.

Sub-ss (5), (6): words in square brackets added by the Courts and Legal Services Act 1990, s 125(2), Sch 17, para 20.

-- Terry (repossessed@grabbynational.co.uk), October 07, 2001.

So, am i right in thinking that because my mortgage deed is signed by myself, my ex-wife and witnessed by our solicitor, BUT NOT SIGNED BY THE BUILDING SOCIETY OR THIER SOLICITOR and is dated December 1989 IS A LEGAL DOCUMENT?

-- Daren Otsay (darenotsay@blueyonder.co.uk), October 08, 2001.

Another way to look at this is what was your intentions when you signed the mortgage deed? Put the shoe on the other foot. Would it be fair if everybody was allowed to 'get out' of thier contractual obligations just becuase the bank never signed the deed? It would not be equitable and if this was the case, nobody would have got (or would get) mortgages. That appears to be the way courts have viewed (and may well do so still) this problem. I wouldn't rely on the fact that a deed isn't signed too much as a way of getting out of the problem you may have, i wish it was, but i don't think it will be enough. Disclaimer = I am not a lawyer, my advice is not to be construed as having any legal effect.

-- Terry (repossessed@grabbynational.co.uk), October 08, 2001.