There has been considerable confusion about the extent to which the LR identification rules apply to those executing documents under powers of attorney. The starting point is the confusing Practice Guide (PG67) issued by the LR which says ‘confirmation of identity is also required for any attorney who is not represented and who is acting on behalf of one of the parties’.

These days, equity release schemes are regulated by the FSA. The trade body is SHIP (Safe Home Income Plans), which represents over 90% of the market, and whose members must abide by a Code of Conduct.

Generally, equity release is an expensive way of raising capital. Certainly, it will not normally be the first resort and alternative ways of raising the money should always be considered. Plus, of course, money received through equity release may reduce eligibility for means-tested benefit, or increase tax liabilities.

A few miscellaneous points to note:

Land agreements are currently outside the scope of competition law. But, that will change as from April 2011. What this means is that the parties to any transaction will have to self-assess whether any provision in the agreement is anti-competitive (ie does it have the object or effect of preventing, restricting or distorting competition in all or part of the UK?). Although many will automatically think of supermarkets in this context, it could apply to large estates, and also transactions that are significant within a local area.

Under CA 1985, if an overseas company granted security over English property then that was registrable at Companies House if the overseas company had an English ‘place of business’. In Slavenburg [1980] that phrase was widely interpreted, and that led to it becoming standard practice to present for registration at Companies House any security created by an overseas company over property in England and Wales. The registrar would then enter the documents on the so-called Slavenburg register, with the documents then being returned with a standard letter as proof of delivery. This then ensured that the security was not invalid.

A reminder that the limitation period in a mortgagee claim can be extended if the borrower ‘acknowledges’ the claim.

In a recent case, the borrower bought a property, with a mortgage, in 1990. He made no payments and the property was subsequently sold by the building society in 1992, with a shortfall of £30,000 owed. Three years later, the building society wrote to the borrower asking how he proposed to pay back the £30,000 and he responded with ‘indignation at the time it had taken the building society to make the demand’. However, in 2002, at the suggestion of the building society, he agreed to make payments of £10pm.

Claims farmers have been very active in promoting the ‘missing agreement’ defence for credit agreement defaulters. Section 78 of the Consumer Credit Act 1974 requires the credit company to produce a photocopy of the original agreement or a copy directly derived from it.

A mortgagee can obtain possession either by court order or by peaceable re-entry. Once in possession, the mortgagee can choose whether or not it wants to sell the property, and there is no obligation to consult with the mortgagor. Subject to an overriding duty to maintain the property and keep it in good repair, the mortgagee can therefore hold onto the property for as long as it wishes (eg until the property market recovers). In short, there is no obligation on the mortgagee to sell within a reasonable time.

The Building Societies Association issued a standard set of mortgage instructions at the beginning of January. These will apply in residential transactions involving BSA members (which includes most of the major societies).

Is it necessary to provide a letter of non-crystallisation in respect of a floating charge over registered land, which is registered at Companies House but not at the LR?

If a client goes bankrupt, then probably the last thing they will be thinking about is buying the negative equity. But, it may be negligent not to advise them to do so.

If a mortgagee wants to obtain possession of an occupied residential property, then a possession order must be obtained from the court. Furthermore, s36 AJA 1970 gives the court a wide discretion, provided the borrower is likely to be able to remedy the mortgage default within a reasonable period.

There had been concern that the Companies Act 2006 (in force from 1 October) would mean that law firms could no longer sign the form when registering a security on behalf of a law firm whose client is a charging company or the charge holder.

Shared ownership leases are a way of encouraging first-time buyers. Typically, the leaseholder will buy a share (eg 75%) of the property, usually via a mortgage, and will then pay rent on the share they do not own (eg 25% of the rent an assured T would pay).

Because lessees under shared ownership leases are assured Ts (in respect of the share of the property that they do not ‘own’), it follows that the normal rules on relief from forfeiture do not apply to mortgagees.