Defective transfer of land
Discussion
So... genuinely asking for a friend, because I can't find case law, probably because no one would bring a claim!
Scenario is:
A farmer owns a farm with two houses on it.
The farmer lives in the first house and decides to sell the second.
The transfer deed is signed but not witnessed (at least not in full). A mortgage is taken out by the buyer of the new property despite the defective transfer.
The farmer (or his son who now lives there - it's not clear) later decides that he would quite like a second house after all and will now be taking the buyer to court to gain possession of the second house and land, based on the unwitnessed deed.
The farmer seems to believe that this can be done. (I don't know when the transfer happened, so they may be prepared to pay back the sums received on the basis they're much less than the current value, or alternatively that they can just do this anyway).
This seems not at all equitable but I can't even find an 18th century case where someone thought they'd try it on.
So while I'm sure there would be very little sympathy, on what basis is the farmer's claim likely to succeed or fail?
Scenario is:
A farmer owns a farm with two houses on it.
The farmer lives in the first house and decides to sell the second.
The transfer deed is signed but not witnessed (at least not in full). A mortgage is taken out by the buyer of the new property despite the defective transfer.
The farmer (or his son who now lives there - it's not clear) later decides that he would quite like a second house after all and will now be taking the buyer to court to gain possession of the second house and land, based on the unwitnessed deed.
The farmer seems to believe that this can be done. (I don't know when the transfer happened, so they may be prepared to pay back the sums received on the basis they're much less than the current value, or alternatively that they can just do this anyway).
This seems not at all equitable but I can't even find an 18th century case where someone thought they'd try it on.
So while I'm sure there would be very little sympathy, on what basis is the farmer's claim likely to succeed or fail?
Edited by CYMR0 on Friday 30th September 11:04
Interesting.
It never ceases to amaze me how low, some of the scum in this country will go. I should not be surprised as I've seen plenty.
I think you need to have a look at Estoppel.
Given that there is a mortgage etc. to prove the transaction, my general not legal view is that the bloke is off his head and he stands no chance whatsoever.
Of course a properly qualified (and paid for) legal opinion is far better value than my free thoughts....
ETA
https://en.wikipedia.org/wiki/Proprietary_estoppel
It never ceases to amaze me how low, some of the scum in this country will go. I should not be surprised as I've seen plenty.
I think you need to have a look at Estoppel.
Given that there is a mortgage etc. to prove the transaction, my general not legal view is that the bloke is off his head and he stands no chance whatsoever.
Of course a properly qualified (and paid for) legal opinion is far better value than my free thoughts....
ETA
https://en.wikipedia.org/wiki/Proprietary_estoppel
Edited by surveyor on Friday 30th September 11:00
I believe there were solicitors and I know that the Land Registry accepted the deeds in error.
(NB the farmer is the "friend" - actually a friend of a friend).
Their only concern is whether the mortgage company will sue the borrower for taking out a dodgy mortgage (which they are fine with) or them (for taking their security) once they've got their hands on the house, as they don't appear to be familiar with the concept of equitable remedies.
(NB the farmer is the "friend" - actually a friend of a friend).
Their only concern is whether the mortgage company will sue the borrower for taking out a dodgy mortgage (which they are fine with) or them (for taking their security) once they've got their hands on the house, as they don't appear to be familiar with the concept of equitable remedies.
In short, I have no idea - interesting scenario though, but my gut says you can't just accept in good faith and then years later change your mind on behalf of someone else.
There could be all kinds of motivations involved here. Round my way, farmers pay planning consultants five figure sums seemingly on the promise they might get a windfall housing planning permission. They see pound signs in their eyes and fire away...
However, if it were me on the receiving end, my first port of call would be returning to the conveyancing solicitor and getting them and their indemnity insurance on the case.
There could be all kinds of motivations involved here. Round my way, farmers pay planning consultants five figure sums seemingly on the promise they might get a windfall housing planning permission. They see pound signs in their eyes and fire away...
However, if it were me on the receiving end, my first port of call would be returning to the conveyancing solicitor and getting them and their indemnity insurance on the case.
CYMR0 said:
I believe there were solicitors and I know that the Land Registry accepted the deeds in error.
(NB the farmer is the "friend" - actually a friend of a friend).
Their only concern is whether the mortgage company will sue the borrower for taking out a dodgy mortgage (which they are fine with) or them (for taking their security) once they've got their hands on the house, as they don't appear to be familiar with the concept of equitable remedies.
I would expect the Lender to join hands with the borrower and defend the attack on the security. They may if they loose then look at other people...(NB the farmer is the "friend" - actually a friend of a friend).
Their only concern is whether the mortgage company will sue the borrower for taking out a dodgy mortgage (which they are fine with) or them (for taking their security) once they've got their hands on the house, as they don't appear to be familiar with the concept of equitable remedies.
If the house is registered with the second person, Farmer will quite likely enjoy watching his money go down the drain and pay the other person their costs too, maybe (hopefully in my view) losing his house in the process.
Is the second house registered in the Farmer's name? I am going to say it can't be for the second person to obtain a mortgage on it.
Is the second house registered in the Farmer's name? I am going to say it can't be for the second person to obtain a mortgage on it.
CYMR0 said:
So... genuinely asking for a friend, because I can't find case law, probably because no one would bring a claim!
Scenario is:
A farmer owns a farm with two houses on it.
The farmer lives in the first house and decides to sell the second.
The transfer deed is signed but not witnessed (at least not in full). A mortgage is taken out by the buyer of the new property despite the defective transfer.
The farmer (or his son who now lives there - it's not clear) later decides that he would quite like a second house after all and will now be taking the buyer to court to gain possession of the second house and land, based on the unwitnessed deed.
The farmer seems to believe that this can be done. (I don't know when the transfer happened, so they may be prepared to pay back the sums received on the basis they're much less than the current value, or alternatively that they can just do this anyway).
This seems not at all equitable but I can't even find an 18th century case where someone thought they'd try it on.
So while I'm sure there would be very little sympathy, on what basis is the farmer's claim likely to succeed or fail?
It sounds like he is arguing the deed is invalid because the witnesses signature is not signed in full. He is arguing on the wrong kettle of fish. It doesn't sound like defective transfer. Scenario is:
A farmer owns a farm with two houses on it.
The farmer lives in the first house and decides to sell the second.
The transfer deed is signed but not witnessed (at least not in full). A mortgage is taken out by the buyer of the new property despite the defective transfer.
The farmer (or his son who now lives there - it's not clear) later decides that he would quite like a second house after all and will now be taking the buyer to court to gain possession of the second house and land, based on the unwitnessed deed.
The farmer seems to believe that this can be done. (I don't know when the transfer happened, so they may be prepared to pay back the sums received on the basis they're much less than the current value, or alternatively that they can just do this anyway).
This seems not at all equitable but I can't even find an 18th century case where someone thought they'd try it on.
So while I'm sure there would be very little sympathy, on what basis is the farmer's claim likely to succeed or fail?
Edited by CYMR0 on Friday 30th September 11:04
If your friend looks up validity of signatures there has been recent case law in relation to emails. Part signatures are valid provided they are from that person concerned (who have apparent or actual authority to bind a contract). A witness is simply a witness to the main signature but is required for a Deed.
It doenst matter if I sign my name as SuperlightR or SLR or just Super. If it was signed or written by that person then it will be valid. I'll try and find the court case authority.
Performance - money was paid and a sale took place. Job done as well.
3rd is the title now registered? If so that's proof of ownership in itself. When was it sold?
The farmer & son is barking mad.
Edited by superlightr on Friday 30th September 11:47
Edited by superlightr on Friday 30th September 11:49
And even if not, the borrower's home insurer may provide legal resources.
There was a recent pensions case that gives the farmer's claim some support: http://www.pitmans.com/news/article/gleeds-case
However, it seems to fall under HR Trustees v Wembley
http://www.nortonrosefulbright.com/knowledge/publi...
I'm not at all clear on the basis on which the two can be distinguished.
There was a recent pensions case that gives the farmer's claim some support: http://www.pitmans.com/news/article/gleeds-case
However, it seems to fall under HR Trustees v Wembley
http://www.nortonrosefulbright.com/knowledge/publi...
I'm not at all clear on the basis on which the two can be distinguished.
When I say "not in full" I mean that one signature on the deed may have been witnessed, but not both. (I don't think this matters).
Because there is a contract for the sale of an interest in land, the contract needs to be executed by deed, not merely in writing, so apparent authority wouldn't be relevant here. (In any event, there is actual authority, but allegedly not validly exercised).
Good spot on the registration of the title.
Edit: this seems to come down to an admin error rather than fraud when the deed was not witnessed.
Because there is a contract for the sale of an interest in land, the contract needs to be executed by deed, not merely in writing, so apparent authority wouldn't be relevant here. (In any event, there is actual authority, but allegedly not validly exercised).
Good spot on the registration of the title.
Edit: this seems to come down to an admin error rather than fraud when the deed was not witnessed.
Edited by CYMR0 on Friday 30th September 11:49
's trick from the farmer.CYMR0 said:
And even if not, the borrower's home insurer may provide legal resources.
There was a recent pensions case that gives the farmer's claim some support: http://www.pitmans.com/news/article/gleeds-case
However, it seems to fall under HR Trustees v Wembley
http://www.nortonrosefulbright.com/knowledge/publi...
I'm not at all clear on the basis on which the two can be distinguished.
Pensions and land are very different subjects. The latter has elements which don't apply elsewhere.There was a recent pensions case that gives the farmer's claim some support: http://www.pitmans.com/news/article/gleeds-case
However, it seems to fall under HR Trustees v Wembley
http://www.nortonrosefulbright.com/knowledge/publi...
I'm not at all clear on the basis on which the two can be distinguished.
One thing the farmer/his son can be sure of is that, as another poster pointed out, where there is a mortgage the lender will become involved.
I reckon it will want to ensure that the person in possession has adequate title and will take steps to ensure that happens.
It is likely to have deeper pockets than the farmer/his son. Trying to regain title will be a protracted and expensive battle for the latter.
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