Jeffrey wrote:
This is why you can't help but be amazed by this situation. The judge literally addressed the 1989 act at length in his decision, but these idiots are still harping on about it.
Law of Property (Miscellaneous Provisions) Act 1989
64. The 1989 Act did not apply when this mortgage was created in 1988 and Mr Crawford recognises that. His submission is that any subsequent mortgage contract should have complied with the formalities of s.2 of the Law of Property (Miscellaneous Provisions) Act 1989.
65. The problem with the submission is that both sides agree that there was no subsequent mortgage contract replacing the original 1988 mortgage agreement. This is the same factual point. Mr Crawford asserts that he never agreed to go onto a repayment mortgage but then Bradford & Bingley do not say that he ever did - the mortgage stayed as it was.
67. I also wondered whether Mr Crawford was confusing a contract for a mortgage with the mortgage deed itself. The s.2 Law of Property (Miscellaneous Provisions) Act 1989 formalities apply only to a contract for a mortgage. Unless those formalities are complied with, a party is not contractually obliged to execute a mortgage. But that does not effect the validity of a mortgage deed which is actually executed. The formalities of a deed are governed by s. 53 Law of Property Act 1925 and they are complied with in this case. The distinction was authoratively emphasised by the Court of Appeal in Helden v Strathmore Ltd [2011] EWCA Civ 542.
68. The cases cited by Mr Crawford in his skeleton argument do not assist him. United Bank of Kuwait v Sahib [1997] Ch 107 dealt with the formation of contracts for the disposition of an interest in land. It does not say that the 1989 Act applies to an executed mortgage deed.
Murray v Guinness (unreported 1998) is again about the requirements of a mortgage contract as a contract for the disposition of an interest in land. It does not say that the Act applies to executed mortgage deeds. Keay & Keay v Morris Homes [2012] 1 WLR 2855 likewise deals with the formalities necessary for a contract for the disposition of an interest in land. It does not apply the 1989 Act formalities to executed disposition deeds. Helden v Strathmore [2011] EWCA Civ 542 is the case which is precisely on point. It emphasises that the formalities of s.2 of the 1989 Act apply to mortgage contracts and not mortgage deeds.
Bank of Scotland v Waugh [[2015] 1 P&CR DG3 held that a document which was not a valid deed for lack of attestation could still be a contract for a mortgage if it complied with s.2 of the 1989 Act. It does not say that in order to be valid, a mortgage deed must comply with s.2.
The above Bank of Scotland v Waugh case is old Michael O'Bernica - where he claimed he won
