mortgage deeds, charge certificates etc etc : LUSENET : Repossession : One Thread

I had a word with a conveyancer I know to try and ascertain what Mortgage Deeds are and what happens to them.

When a house is being sold, the sellers lender will pass all the deeds relating to that house to the sellers solicitor. Unless the new mortgage is with the same lender, that lender will not see those deeds again.

Once completion has taken place, the deeds will pass to the buyers solicitors who will register the title and then pass the deeds to the new lender.

Properties which have mortgages on them have a Charge Certificate. The Charge Certificate remains with that property. In this Charge Certificate are details of what the property is and any restrictions on its use. A note of who the current owners are comes next and at then a note of who the mortgage lender is. If you live in an old house, you’ll see details of previous lenders/owners in the “Charges Register” of the certificate.

The Mortgage Deed is the agreement between you and the lender and basically you sign to say that you have a mortgage and abide by the conditions etc. I took a look at one of these documents today and it is not signed by the lender, only the borrowing parties. I also checked the one my partner has and only the borrower signs that also, so I guess its pretty much standard.

The Mortgage Deed I saw today was just a single page. The one my partner has is 14 pages and incorporates the terms and conditions. Where the Deed is a single page, the terms and conditions of the mortgage are usually in booklet form. These are sent by the lender to the borrower and also to the solicitor.

When the property purchase is completed, the solicitor acting for the buyer sends the Charge Certificate and the Mortgage Deed, which are separate documents at this time, to the Land Registry. The LR registers the two documents and then binds them together as one document, keeps a copy and sends the originals back to the solicitor.

The solicitor sends this now one document to the new mortgage lender who keeps it wherever they keep their deeds.

Therefore when the lender has repo’d a house and sold it off, they pass the deeds to the solicitor acting in the sale which is then sent to the buyers solicitors and that’s it. There is no reason for them the keep the deeds because they have no interest any more. Whether or not they should have kept a copy of everything is another question however.

Taking the above into consideration, a lender who no longer has an interest in a property is not going to have the originals of the Charge Certificate. What I don’t know is what happens to the Mortgage Deed attached to it when the mortgage lender changes. I will find out as soon as I can and let you all know.

I would suggest that anyone who needs a copy of the T&Cs and who can't get it from their lender, should approach the solicitor who acted for them in the purchase. Under Law Society rules, a solicitor must keep purchase records for 25 years, although this is a flexible rule and some only keep for 10.

If you want to go further, you can ask the solicitor for the file itself. It will depend on the solicitor whether or not you get the original file, but in any event you can get a photocopy of everything that is there (you may have to pay a fee for copying).

-- pendle (, February 23, 2001


This begs the question, how do lenders hope to rely on the argument that shortfall 'debts' can legally be pursued for up to 12 years if it doesn't keep these 'specialty' documents (or even copies, in many cases)?

It's the lenders' job to prove these claims. Maybe they should be the ones chasing round after copy documents, if they are so sure they're right!

It makes you wonder if that's why some lenedrs are adopting the tactic of asking people 'Are you denying you had a mortgage with us, then?' (see HRP newsletter 31.1.01), to try to distract from the (original) mortgage deed issue.

-- Eleanor Scott (, February 25, 2001.

When I first looked through this post it looked like the chasing lenders were right and that they do not, and should not, have the original mortgage deed. Upon the completion of some serious pondering, however, I am still as convinced as ever that the chasing lenders *should* have the original mortgage deed. There seems to be a lot of confusion over the Mortgage Deed and the Title Deed. From the original posting here is what I have been able to piece together. I have flagged the different part *FACT* or *OPINION* so that you can see where I am looking for correction/comments.

1) When a person buys the property the original mortgage deed and copy are sent by the solicitors to the Land Registry. The LR registers the mortgage deed on the Charge Certificate, keeps the copy of the mortgage deed and sends the original mortgage deed and the charge certificate back to the solicitor. *FACT*

2) The solicitor sends the original mortgage deed and the Charge certificate to the mortgage lender who keeps it wherever they keep their deeds. *FACT*

3) Upon the sale of a repossessed property a "Transfer of Whole" ( Rule 114, Land Registration Rules 1925) document is drawn up. This document is signed as a deed and is sent along with the charge certificate to the Land registry that releases the property from any charge that the selling lender has on it. *FACT*

4) The selling lender should keep the original mortgage deed in order to pursue for any outstanding monies. *OPINION*

The reason I say this is that: a) The LR have told me that they *NEVER* hold original mortgage deeds. b) Their is no point in it being sent to the new lender as it is not enforceable by them. c) The charge certificate that the new lender gets is good enough to show that there are no other charges on the property affecting their interests. d) The only party that this document is of *any* value to is the selling lender.

My best guess is that if your lender does not have the *original mortgage deed* then they a) were hit by fire, flood etc. b) they just lost the document c) they have got the document, but just don't know where, or d) They went plc, wrote off a number of old debts to make their financial position look better for the market and destroyed the deeds as a part of the write off.

I also know for sure that RSC Order 88 states:

RULE 1 (1) This order applies to any claim by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being a claim in which there is a claim for any of the following remedies, namely - *payment of moneys secured by the mortgage;*

RULE 2 "Without prejudice to section 61(1) of the Act (which provides for the assignment to the Chancery Division of proceedings for the purposes, among others, of the redemption or foreclosure of mortgages and the sale and distribution of the proceeds of property subject to any lien or charge) any claim in which there is a claim for - a) *payment of moneys secured by a mortgage of any real or leasehold property;* or

b) delivery of possession (whether before or after foreclosure) to the mortgagee of any such property by the mortgagor or by any other person who is or is alleged to be in possession of the property, *shall be assigned to the Chancery Division*.

RULE 5(1) -The witness statement or affidavit in support of the claim (other than a claim to which rule 5A applies) to which this rule applies is begun must comply with the following provisions of this rule. *This rule applies to a mortgage claim in the Chancery Division* in which the claimant is the mortgagee and claims delivery of possession or *payment of moneys secured by the mortgage* or both. (2) The witness statement or *affidavit must exhibit a true copy* of the mortgage and the *original mortgage or, in the case of a registered charge, the charge certificate must be produced at the hearing of the claim*.

Rule 5(2) is very important here. The Supreme Court recognizes that a claim may arise where there is:

a) a charge on a property, the charge certificate must be produced. b) when their is no charge (ie the lender sold the secured property) the *original mortgage* must be produced.

Why would the Supreme Court ask for a document that the lender should not have? It is also important to note that this rule say that a *true copy* must be exhibited by the affidavit, and therefore it would seem that a true copy is not good enough for the hearing!

Regards Tim

-- Tim Heath (, February 25, 2001.

I emailed York Land Registry who said that when they register a change of ownership, the old owner is erased from the register and replaced by the new owner.

Any previous mortgages taken out which have been settled are kept on file at the Land Registry. They are never left attached to the Charge Certificate, only the current mortgage is attached.

Years ago when Charge Certificates were typewritten, they used to cross entries out and put new ones underneath using the same certificate. Nowadays they always make up a fresh certificate. Sometimes the former lender may ask for the mortgage deed back, but the impression I got was that this didn't happen very often.

With a repossessed property, form TR2 rather than TR1 is used, but the result is the same.

I think you are misleading with your quote from RSC Order 88. The full text of Rule 1(1) says:

"Rule 1 (1) This order applies to any claim by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being a claim in which there is a claim for any of the following remedies, namely -

- payment of moneys secured by the mortgage; - sale of the mortgaged property; - foreclosure; - delivery of possession (whether before or after foreclosure or without foreclosure) to the mortgagee by the mortgagor or by any other person who is or is alleged to be in possession of the property; - redemption; - reconveyance of the property or its release from the security; - delivery of possession by the mortgagee. "

Read in full, this Order is the rules for a lender to obtain possession of a property, not for claiming the shortfall afterwards.

In any event, Rules 1 - 5 and 7 of Order 88 will be revoked in a few months time when SI 256(L7) comes into force. Some of Order 88 has been reworded into Order 45. The SI just says how a possession can take place....

"Possession claims relating to mortgaged residential property 55.10 - (1) This rule applies where a mortgagee seeks possession of land which consists of or includes residential property.

(2) Not less than 14 days before the hearing the claimant must send a notice to the property addressed to "the occupiers".

(3) The notice referred to in paragraph (2) must -

(a) state that a possession claim for the property has started; (b) show the name and address of the claimant, the defendant and the court which issued the claim form; and (c) give details of the hearing.

4) The claimant must produce at the hearing - (a) a copy of the notice; and (b) evidence that he has served it."

If you're not happy with what I've said Tim, which in part has come from a solicitor and the Land Registry, then I suggest you speak to a solicitor and get a barrister's opinion on the rules and how they are applied.

-- pendle (, February 26, 2001.


I am always looking for different opinions on this order. Just wanted to ask the why RSC Order 88 says "- payment of moneys secured by the mortgage;" and if you check this site it was used in the Natwest v Kitch case where this was for the recovery of money. The counsel for Kitch obviously believed differently.


-- Tim Heath (, February 26, 2001.


Sorry missed a part of my question. Can can you also please explain your statement "Any previous mortgages taken out which have been settled are kept on file at the Land Registry". Surely a mortgage that has a shortfall has not been settled even though the charge has been released. Just a question for your sources of info.


-- Tim Heath (, February 26, 2001.

My statement, "Any previous mortgages taken out which have been settled are kept on file at the Land Registry" is what I was told by the Land Registry.

It may be that where a property is repossessed, the lender does ask for the deed back, and as the LR said, they will send if asked, but if the lender doesn't ask, the LR don't send.

My source of information is just a regular conveyancing solicitor, she's acted for buyers of repossessed properties, but not for lenders.

The problem with the law, is that its open to interpretation, nothing is straightforward. Most people on this board quote Hopkinson and Tupper as an example of the 6 year rule on shortfalls, but a litigation solicitor I know told me that in her entire career fighting lenders, she's never known a case succeed using that argument! Whereas Natwest might have used the Order 88 in their argument, they probably succeeded because they've damned good lawyers - which is usually how anyone wins their case, however small their chances were.

-- pendle (, February 26, 2001.


Please read the Natwest v Kitch case. This may shed some light on my comments. It would appear from your previous posting that you are not familiar with this case and would therefore draw your attention to the areas of "The Customers Submissions" and "The Banks Sumissions". Maybe if you review RSC Order 88 and Natwest v Kitch together you may be able to get your legal freind to give us an opinion.


-- Tim Heath (, February 26, 2001.

The only Natwest -v- Kitch I could find a transcript for on Casetrack, is for one where Order 88 is used but for an overdraft secured by a charge, not a regular mortgage. The case references don't tally with the one on this website.

-- pendle (, February 26, 2001.

This is probably the same case, but jus in case, it can be viewed from the bottom of the Reposession > Your Legal Rights page. This case is about an overdraft that was secured by a mortgage, as I recall, and was therfore purely for money. The arguement was not upheld because the originating document was not a mortgage, but an overdraft agreement. Lenders are clearly claiming monies owed based upon a mortgage (the originating document being the mortgage deed) and, therfore, I contend that the arguement used by Nat West in this case would not apply to lenders chasing shortfalls. I would suggest that RSC Order 88 does very much apply, is not purely for repossesion proceedings and they (the lenders) would have a very hard time wriggling out of it if the borrower was steadfast and resolute.


-- Tim Heath (, February 26, 2001.

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