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
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.
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
4x4Tyke said:
What is their rational/justification?
Anything beyond pure greed?
Since posting I've learned a little more.Anything beyond pure greed?
Allegedly there's some other dispute (not sure if it's in relation to the boundary or an easement etc.) that is getting in the way of another disposal, so their solution is to unwind the transaction and reunite the two parcels of land.
However I'm absolutely convinced that they are going about it the wrong way, both ethically, and in terms of getting the result they want.
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