Searching for precedents - any Google tips?

[David WE Roberts]

Still dragging our way through issues with a charge on the property in
benefit of a defunct finance company.

Please note that the matter is in the hands of solicitors but as with all
things legal the overall process is slow and we are trying to expand our
knowledge of the subject whilst we wait.

The background to how the purchase should not have taken place has already
been extensively covered here.

So:

(1) There is a charge in the name of a long defunct finance company.

(2) Land Registry will not remove the charge because although there is
some evidence that the original loan has been paid off, the LR do not
consider it enough evidence. They are therefore unwilling to take the risk
that the debt has been sold on and is slumbering out there somewhere
waiting to re-emerge. We can see that they are not in the business of
voluntarily taking on any risk, however minor.

(3) We understand that it is possible for a court to instruct the LR to
remove this charge. Further, we have been told by one source that this is
not a unique situation and similar charges have been removed by order of a
court before.

Now in good time, should we go this route, our barrister will produce
details of any precedents which favour our case.

However it would be good to find some evidence of a precedent (either good
or bad) prior to the stage when we fire up the barrister.

So could anyone suggest the correct legal terms to include in a Google
search to find such precedents if they exist and are recorded online?

Thanks

Dave R

[Percy Picacity]

On 2013-05-08 12:05:02 +0000, David WE Roberts said:

> Still dragging our way through issues with a charge on the property

> inbenefit of a defunct finance company.

>
> Please note that the matter is in the hands of solicitors but as with

> allthings legal the overall process is slow and we are trying to expand
> ourknowledge of the subject whilst we wait.

>
> The background to how the purchase should not have taken place has

> alreadybeen extensively covered here.

>
> So:
>
> (1) There is a charge in the name of a long defunct finance company.
>
> (2) Land Registry will not remove the charge because although there

> issome evidence that the original loan has been paid off, the LR do
> notconsider it enough evidence. They are therefore unwilling to take
> the riskthat the debt has been sold on and is slumbering out there
> somewherewaiting to re-emerge. We can see that they are not in the
> business ofvoluntarily taking on any risk, however minor.

>
> (3) We understand that it is possible for a court to instruct the LR

> toremove this charge. Further, we have been told by one source that
> this isnot a unique situation and similar charges have been removed by
> order of acourt before.

>
> Now in good time, should we go this route, our barrister will

> producedetails of any precedents which favour our case.

>
> However it would be good to find some evidence of a precedent (either

> goodor bad) prior to the stage when we fire up the barrister.

>
> So could anyone suggest the correct legal terms to include in a

> Googlesearch to find such precedents if they exist and are recorded
> online?
>
> Thanks
>
> Dave R

How about a FOI request to the Land Registry asking for instances where
a court has ordered them to do this?

--

Percy Picacity

[David.WE.Roberts]

That is an interesting approach :-)

However this could be seen a stepping on the toes of the legal team who
are already dealing with the Land Registry.

I was more looking for assistance with on line searches.

Nice to see some lateral thinking, though.

Cheers

Dave R

[Ian Jackson]

In article <auvcse...@mid.individual.net>,

It should have no impact on your legal team's work. FOI is something
you are entitled to entirely separately and taking advantage of it is
not something that would prejudice your other legal rights.

But: if you're concerned about this, why not have a friend make the
FOI request ? (It's probably best to it via whatdotheyknow.com
because that makes it easier to share the answers, and it provides
some convenient tracking and reminder features.) If your friend makes
the request the LR will have no particular reason to connect it to
your case because it won't have your name on it.

--
Ian Jackson personal email: <ijac...@chiark.greenend.org.uk>
These opinions are my own. http://www.chiark.greenend.org.uk/~ijackson/
PGP2 key 1024R/0x23f5addb, fingerprint 5906F687 BD03ACAD 0D8E602E FCF37657

[Fredxx]

On 08/05/2013 13:05, David WE Roberts wrote:
> Still dragging our way through issues with a charge on the property
> in benefit of a defunct finance company.
>

All assets of defunct companies that have no other legitimate owner is
taken over by Bona Vacantia.

Can you not trace any director of the defunct company?

Has the company been defunct for more than 12 years?

The Bona Vacantia could sell you the rights to the defunct company. It
may be cheaper than furthering the current legal avenues?

[Chris R]

>
>
> "Fredxx" wrote in message news:kmehki$nlk$1...@dont-email.me...

I think it unlikely that the Crown would sell an asset without knowing what
it was. In any event it doesn't get round the problem that the debt was
probably assigned to an unknown their party before dissolution. The Crown
wouldn't want to do anything that potentially prejudiced a third party, such
as cancelling the charge registration.
--
Chris R

========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======

[David McNeish]

On May 9, 8:30 am, "Chris R" <inva...@invalid.munge.co.uk> wrote:
> > "Fredxx"  wrote in messagenews:kmehki$nlk$1...@dont-email.me...

> > On 08/05/2013 13:05, David WE Roberts wrote:
> > > Still dragging our way through issues with a charge on the property
> > > in benefit of a defunct finance company.
>
> > All assets of defunct companies that have no other legitimate owner is
> > taken over by Bona Vacantia.
>
> > Can you not trace any director of the defunct company?
>
> > Has the company been defunct for more than 12 years?
>
> > The Bona Vacantia could sell you the rights to the defunct company.  It
> > may be cheaper than furthering the current legal avenues?
>
> I think it unlikely that the Crown would sell an asset without knowing what
> it was. In any event it doesn't get round the problem that the debt was
> probably assigned to an unknown their party before dissolution. The Crown
> wouldn't want to do anything that potentially prejudiced a third party, such
> as cancelling the charge registration.

I think a more likely obstacle is the belief that the loan had been
repaid - in which case the Crown's policy is that no asset exists, and
it therefore can't get involved. It would be easier if there was
actually a debt still due to the dissolved company which could be
repaid to the Crown in exchange for the discharge.

[David.WE.Roberts]

As noted at the start - been there, done that, not even a bloody T shirt.

The background has been raked over in previous months so I am specifically
looking for searches for precedents.

Thanks

Dave R

[David.WE.Roberts]

On Wed, 08 May 2013 18:45:02 +0100, Ian Jackson wrote:

> whatdotheyknow.com

https://www.whatdotheyknow.com/search/land%20registry/all

There is some seriously disturbing stuff there, and a general trend that
many people do not feel the Land Registry is a fair and impartial and well
regulated organisation. Nor do they feel that their concerns are being
addressed.

The scary things I have read suggest that transfer of ownership by
fraudulent means is far too easy and that once it has taken place the
original owner seems to have little or no rights once the property has
been mortgaged or sold on.

Obviously the scary stuff will be more widely reported, but still some
stuff which doesn't read well for the LR or the legal profession.
http://www.dailymail.co.uk/news/article-2111163/Land-registry-grandmother-
helped-steal-homes-elderly-collapses-dock-jailed.html

Bit OT for this thread, but nervous making.

Cheers

Dave R

[Stuart Bronstein]

David WE Roberts <nos...@nospam.net> wrote:

> (3) We understand that it is possible for a court to instruct
> the LR to remove this charge. Further, we have been told by one
> source that this is not a unique situation and similar charges
> have been removed by order of a court before.
>
> Now in good time, should we go this route, our barrister will
> produce details of any precedents which favour our case.

The precedent establishing that the court has the power to order the
charge removed should be the only precedent to matter in your case.
Aside from that the issue will be to provide sufficient proof to
convince the court that the loan was actually paid off.

--
Stu
http://DownToEarthLawyer.com

[Ian Jackson]

In article <av1gik...@mid.individual.net>,

David.WE.Roberts <nos...@nospam.net> wrote:
>On Wed, 08 May 2013 18:45:02 +0100, Ian Jackson wrote:
>
>> whatdotheyknow.com
>
>https://www.whatdotheyknow.com/search/land%20registry/all
>
>There is some seriously disturbing stuff there, and a general trend that
>many people do not feel the Land Registry is a fair and impartial and well
>regulated organisation. Nor do they feel that their concerns are being
>addressed.

I agree that there is some disturbing stuff there. The Land Registry
seem to be suffering from numbers of unhinged and irrational people.

In several of the top hits from that search I read correspondents
failing to understand the responses from the LR, and then unfairly
lambasting the LR. In many cases they carry on ranting at the LR
rather than escalating their dispute to the ICO, as would be the
proper approach - although the complaints' cases appear hopeless so
such an escalation would be fruitless. Many of them seem to be trying
to use WDTK and FOI to try to directly get satisfaction in various
disputes, which is not what the FOI legislation is intended to
provide.

In short, the Land Registry seems plagued by green-ink nutcases.

However I'm pleased to see that where the messages on WDTK actually
contain a sensible request for information, the LR seem to be
providing full and helpful replies.

And in case you think I'm some kind of thoughtless defender of the
establishment: I speak as someone who has made numerous FOI requests.
I have made many successful complaints to the ICO. I recently
represented myself in a hearing before the Information Tribunal, to
try to overturn an unfavourable Decision Notice under the
Environmental Information Regulations.

[David.WE.Roberts]

We are hoping that provision of an indemnity insurance of sufficient size
to more than cover any anticipated future claim should provide an
acceptable back stop.

Sufficient proof that the loan was paid off - if we had that the LR would
remove the charge.

Failing that the LR is not willing to assume any risk.

Hopefully if we can demonstrate that there is in fact no risk in the
unlikely event that any loan should surface in the future the court will
instruct the entry to be removed.

It would be reassuring to find a precedent for this particular
circumstance, though.

Cheers

Dave R

[Fredxx]

On 09/05/2013 08:30, Chris R wrote:
>>
>>
>> "Fredxx" wrote in message news:kmehki$nlk$1...@dont-email.me...
>> On 08/05/2013 13:05, David WE Roberts wrote:
>>> Still dragging our way through issues with a charge on the property
>>> in benefit of a defunct finance company.
>>>
>>
>> All assets of defunct companies that have no other legitimate owner is
>> taken over by Bona Vacantia.
>>
>> Can you not trace any director of the defunct company?
>>
>> Has the company been defunct for more than 12 years?
>>
>> The Bona Vacantia could sell you the rights to the defunct company. It
>> may be cheaper than furthering the current legal avenues?
>
> I think it unlikely that the Crown would sell an asset without knowing what
> it was. In any event it doesn't get round the problem that the debt was
> probably assigned to an unknown their party before dissolution. The Crown
> wouldn't want to do anything that potentially prejudiced a third party, such
> as cancelling the charge registration.
>

Maybe, but a charge on a property must have the person or entity's
details for contact. Is there not a time window for these details to be
updated? Most banks and building societies make the necessary changes
pdq when they change name or taken over.

In this case the charge has not been taken over by anyone else, and must
therefore be owned by the treasury. Or put it another way, it will be
very difficult for any third party to stump up any evidence that they
have rights over the charge.

I would have thought a publication in the London Gazette would be
sufficient, to give notice that proceedings will commence to have the
charge removed subject to any third party having bona fide providing
evidence of an interest.

[David.WE.Roberts]

Our barrister was of the opinion that there was a time limit on the
registration of the charge to any new owner of the debt, which should by
now have expired.

However when our solicitor, by phone, put this to the representative of
the LR he remained unconvinced.

We are now waiting for the LR to put their lack of conviction into
writing, which seems to be taking a rather long time.

Of course, if the debt has been paid off then AIUI it is the
responsibility of the land owner to get the charge removed, although
reputable lenders tend to do this for them.

Less efficient (possibly short lived in a corporate sense) lenders may
neglect to do this and less efficient land owners may not realise that
they have to do anything.

Which in turn makes me wonder why this hasn't happened more often.

The sad thing is that if the property had been repossessed then the charge
would have been automatically cleared.

As you (and others including myself) have said there is no logic in any
lender with an outstanding debt secured against a property not having
their details attached to the LR entry via a charge.

Interesting thought about the London Gazette.

Cheers


Dave R

[Chris R]

>
>
> "David.WE.Roberts" wrote in message
> news:avfbbn...@mid.individual.net...

>
> On Fri, 10 May 2013 18:00:05 +0100, Fredxx wrote:
>
> > On 09/05/2013 08:30, Chris R wrote:
> >>>
> >>>
> >>> "Fredxx" wrote in message news:kmehki$nlk$1...@dont-email.me...
> >>> On 08/05/2013 13:05, David WE Roberts wrote:
> >>>> Still dragging our way through issues with a charge on the property
> >>>> in benefit of a defunct finance company.
> >>>>
> >>>>

>

> Our barrister was of the opinion that there was a time limit on the
> registration of the charge to any new owner of the debt, which should by
> now have expired.
>
> However when our solicitor, by phone, put this to the representative of
> the LR he remained unconvinced.
>
> We are now waiting for the LR to put their lack of conviction into
> writing, which seems to be taking a rather long time.
>
> Of course, if the debt has been paid off then AIUI it is the
> responsibility of the land owner to get the charge removed, although
> reputable lenders tend to do this for them.
>
> Less efficient (possibly short lived in a corporate sense) lenders may
> neglect to do this and less efficient land owners may not realise that
> they have to do anything.
>
> Which in turn makes me wonder why this hasn't happened more often.
>

This has been bothering me for a while. the whole point of a system of land
registration is supposed to be that you can deal with the registered
proprietor (in his case of the charge) without having to worry about
unregistered dealings. There is also a principle of land law that you can't
have an irredeemable charge (a "clog on the equity of redemption"). it
doesn't seem right that you can't somehow redeem the charge by dealing with
or compelling the registered proprietor. as you say, there must be lots of
cases of mortgagees failing to register the redemption of their mortgages.

I did some reading the other day for an unrelated case which suggested there
i no time limit for registering dealings, but the purchaser has no legal
title until his title is registered. That doesn't help you, because the main
problem for the transferee would be that the transferor could still deal
with the title; but here the transferor is inactive. I just wonder if there
isn't a solution we have all been missing so far, probably in the Land
Registration Rules.

[David.WE.Roberts]

On Wed, 15 May 2013 00:50:01 +0100, Chris R wrote:


>>
>> "David.WE.Roberts" wrote in message
>> news:avfbbn...@mid.individual.net...

<snip>

> This has been bothering me for a while. the whole point of a system of
> land registration is supposed to be that you can deal with the
> registered proprietor (in his case of the charge) without having to
> worry about unregistered dealings. There is also a principle of land law
> that you can't have an irredeemable charge (a "clog on the equity of
> redemption"). it doesn't seem right that you can't somehow redeem the
> charge by dealing with or compelling the registered proprietor. as you
> say, there must be lots of cases of mortgagees failing to register the
> redemption of their mortgages.

<snip>

Do you have any reference for the principle of land law "that you can't
have an irredeemable charge".

This would be very useful.

Although this charge is obviously redeemable "eventually" I presume.
After 100 years the LR might not feel quite so cautious (perhaps).

I think that in most cases the lender will issue some kind of certificate
of redemption/completion of the mortgage or other loan on final payment.

If this is available at a later date then the charge can be lifted.

However in our case the husband and wife were not the best money managers
(he legged it with another woman leaving behind a mortgage she couldn't
pay) so the property was about to be re-possessed.

She couldn't contact him, and had to get the court to order the transfer
of the property into her sole name so she could sell.

So the chance of getting any paperwork out of him, or access to his bank
records, were pretty slim in the first place and got slimmer with passing
time.
Although bank records will not, as far as I can see, prove anything.
All they can show is the time the last payment was made.
This is not proof that there was no outstanding debt at the time of last
payment.
Although it might give a clue to who received the last payment.

Not that we knew there was any issue with the charge until 2008 and
further we did not know what an impediment this charge was until mid 2012
(having been told we had indemnity insurance which would leave us in the
same position as if the charge did not exist).

So with no knowledge of the final lender (assuming the loan was sold on
and not paid of in 1999) proof of redemption is not going to be easy to
find.

Thanks for all your help.

Cheers

Dave R

[Chris R]

>
>
> "David.WE.Roberts" wrote in message
> news:avhk2k...@mid.individual.net...

I'm not sure how useful this will be, but these extracts about the
redeemability of mortgages and clogs on the equity of redemption are from my
old 4th edition of Megarry & Wade "The Law of Real Property" (I haven't
looked at the case reports):

A mortgage cannot be irredeemable, Fairclough v Swan Brewery [1912] AC 565
at 570, "redemption is of the very nature and essence of a mortgage", Noakes
& Co v Rice [1902] AC 24 at 30, it is inconsistent with the very nature of a
mortgage that it shall be totally irredeemable, re-Wells [1933] Ch 29 at 52,
any express stipulation which is inconsistent with the right of redemption
will be ineffective, Toomes v Conset (1745) 3 Atk 261, instead of redeeming,
a person who is entitled to redeem the mortgage may usually insist on the
mortgagee transferring the mortgage to a nominee of the person paying the
money, Law of Property Act 1925 s95, a mortgage may be redeemed either in
court or out of court, it is a rule of practice that he must either give the
mortgagee reasonable notice (i.e. normally, or perhaps always, six months)
of his intention to redeem, Shrapnell v Blake (1737) West t.Hard 166, any
person entitled to redeem may apply to the court for an order for sale, and
is apparently entitled to such an order as of right, Law of Property Act
1920 s91(1) and Clarke vs Pannell (1884) 29 SJ 147, there is such a thing as
an action for redemption in which the exact amount due to the mortgagee must
be settled by the court.

Note that none of this takes account of the law of land registration, nor of
any developments since 1975.

--
Chris R

========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======

....