Your Client? Probably a Crook?

A Lesson for Conveyancers. Don’t Assume Anything. Or if you do, Assume Your Client IS a Crook.

Whose idea was it, to abolish title deeds? It must have seemed a splendidly logical idea to the computer programmers and IT advisors who looked at the Conveyancing process in the late 1990s, when they made systems analyses and reported to Government and the Land Registry.

Cos, if the owner of a property is whoever is shown on the Land Registry computer as the owner, wot’s the point of Deeds eh? [The question is rhetorical, the answer is – “Because People are bad, and you cannot trust them.”]

Sweet really, how naive a Computer Programmer can be, tucked away from the real world happy tapping in the glow of his screens.

Here is an illustration, a case of PURRUNSING reported in March 2016, where a bad person has stolen a house.

It seems, all you have to do if you are a crook, is find some empty properties, then search the land registry registers, anyone can do it for a few pounds a go, until you have identified one of them which has no mortgage on it.

The next bit is more tricky, you do need to get yourself a forged passport in the name of the registered proprietor – and thankfully I have no idea how you do that.

Then you get an accommodation address in England in your name and when you have been there a bit in your false name you should have some rent and electricity receipts.

Then off you go to your local unsuspecting solicitor and sell the place. He won’t ask you for the title deeds, because we don’t do that anymore, not since 2003.

So in the case of Purrunsing, the fraudster was paid £470,000.00 and has left the scene. The Buyer would now like his money back please.

If you are a solicitor reading this, you may think, well, if I were acting for the crook, I can’t be expected to identify a well forged passport, and the invoice receipts were genuine, so how could I be responsible? Do I have to upset all my clients by asking them to prove they are not crooks? I haven’t been dishonest and I acted in good faith.

And if you are a solicitor reading this, you may think, well, if I was acting for the purchaser I can’t be expected to identify the person who has pretended to be the owner and link him to the property, so how can I be responsible? And anyway, doesn’t the seller’s solicitor give an implicit warranty of authority that he acts for the seller? I haven’t been dishonest and I acted in good faith.

Well if you read the case, you will see that both solicitors were held to be equally short of the necessary standard of care in the transaction, and they have had to repay the Buyer half each.

With hindsight, no doubt both sets of Solicitors can see that there were warning signs. High value, empty property, with no mortgage. “Seller” who lives at a different address from the address listed at the Land Registry. Seller whom the Solicitor has never acted for previously, who says he spends most of his time abroad, who cannot answer questions about the property and is pressing for a very early sale at a “discount price”.

But still, how many of us (and in a former life I was a solicitor running a high volume conveyancing caseload) can say hand on heart, “this could never have happened to me”?

And in the judgment, it is pointed out that the sale to Mr Purrunsing followed an earlier abortive sale to another Buyer, whose Solicitors did actually smell a rat. They asked for the Seller’s employment details in Abu Dhabi [where he had said he worked in a hospital] and as soon as they did that, the job was off!

Top Marks to those Solicitors, who among you would have gone so far?

So the lesson of the case, is a reminder that now that there are no title deeds the fraudsters and thieves are out there taking advantage. And you Solicitors and Licensed Conveyancers are the people whom, ultimately, they will be stealing from. If you let them.

Fraud is all around. As Reg Presley didn’t say. Link here.

As always, for accurate Notarial acts and records, please do contact me or Louise whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone me on 0113 816 0116 (internationally 0044 113 8160116)

A Verbal Contract. Is It Worth the Paper It’s Not Written on?

A Verbal Contract. Is It Worth the Paper It’s Not Written on?

A Notary spends his life dealing with paper. Paper which is trying to define and document events and relationships in order to ascertain what obligations were created or acknowledged at that date.

Trouble is, it turns out, things change.

It has been said that there may be a Global West-East division of thinking about contracts and their meaning,

The West comes at it from a history where the concept used to be that the written paper actually was the contract. If it was torn up, the contract vanished. Now, we don’t really believe that any more, but we still in England consider that the essence of the contract is to be discovered from reading the words on the paper.

Whereas, at least anecdotally, the Eastern view is more akin to an understanding of the written words as being a photograph of the agreement, on the day it was made. “Look at our little agreement, as it was on the day it was born ten years ago, And my, how it has grown up and changed!”

And the Law in England now certainly accepts that contracts do not need to be written on paper.

Except for land contracts; commercial and personal Contracts can certainly be made verbally, and indeed the existence of a binding contract can be the consequence of a consistent course of trading conduct, with nothing specific ever said or written down.

And too, over the course of a business relationship, the obligations and the way of dealing with them can evolve. And whilst it is obviously sensible to “get the lawyers in” to prepare original contracts, it can be very expensive to do, essentially getting the whole contract overhauled, every time there is a small change in the terms.

It could also be felt that to do so would seem overly fussy or even be harmful to the relationship. – “Don’t you trust me?”

And if it is the law, that contracts can be made by words or conduct and also in consequence of written agreements, then there is scope for the law to tie itself into knots.

Because a written contract can say, and often does, words to the effect that “this paper contains the final agreement made between the parties and no verbal or other amendment to it shall be effective. It may only be amended by a future written document and if so it must be signed by all of the parties”.

That seems clear enough.

Except, as I have said, the law is that verbal contracts are quite possible in England. And the Law of the Land supersedes the words of a written contract you might think.

So if you and I write into our written contract that it cannot be changed by a later verbal agreement between us, and also the Law of England says that verbal agreements are valid, but that written ones are also, there is a paradox.

Like that of the barber, who is a clean shaven man, who is the only person who shaves only all the men who do not shave themselves. [He cannot shave himself, but neither can anyone else, yet he is shaven].

Or like Russell’s paradox of the set of all things which are not part of a set, link here.

Something has to give.

The recent case of Globe Motors [decision in the Court of Appeal link here] dealt with just such a case. It also tried to reconcile two earlier cases.

In the first one the Judge had decided that a verbal amendment to a written contract could not be effective, because the written contract said all future variations had to be in writing.

In the second case, the same Judge [yes, I know] had reached the opposite decision. He said, a later oral agreement may form a secondary contract which has the effect of varying the written contract.

The Court of Appeal has decided now in Globe Motors, in effect, that the terms of a written contract which says its terms cannot be varied unless the variations are also written and signed by the parties, may be later varied even if they are not.

It is not happy about its own decision and one of the Judges said “It does not follow that clauses ….[of this kind] … have no value at all.”

The effect of the clause is explained, as to make it significantly harder for a party to persuade a court that their claimed later verbal variation was actually intended to effect a variation to a contract which contained a provision requiring written variation, than to one which did not.

Yebbut, Harder? How? That was always going to be difficult, wasn’t it?

Seems to me, the effect of the written clause purporting to ban future unwritten variations, has in fact been reduced to – no effect at all.

But, given that it is always easier to prove a contract if the terms of it are written down what have we learnt? Answers to me on a postcard please [yes, written down].

Ok my head is spinning, how is yours? Link to A Song

As always, for accurate Notarial acts and records, please do contact me or Louise whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone me on 0113 816 0116 (internationally 0044 113 8160116)

Notaries in History, Bob Dylan, and Termites

Notaries in History, Bob Dylan, and Termites: – A few random titbits and ramblings from Sunny Yorkshire.

A Bit of background: – The profession of Notary in England predates that of solicitors.

The earliest Notaries in England were appointed by the Archbishop of Canterbury under licence granted by the Pope in Rome in the year 1279.

Obviously, they were appointees of the Catholic Church.

This was not a safe appointment in the early 16th century, by the time that King Henry VIII was excommunicated from that Church [and remember, during his reign some 70,000 people were executed].

The regulator of Notaries now is the Faculty Office, which is itself the creature of Statute – the Ecclesiastical Licences Act 1533. Henry VIII in action.

Here is a link to the text of it, still quite modern in its language [well until you click on the links. For example
Guardian of the Spiritualties may act during Vacancy of See.
[X1PROVYD] also and be it enacted by auctoritie aforseid that yf it happen the See of the Archbishoppriche of Canurbury to be voyde, that then all suche [X2manner of licences] dispensacions faculties instruments rescriptes and other wrytynges which may be graunted by vertue and auctoritie of this acte shall during the vacacion of the same See be hadd done and graunted under the name and seale of the gardiane of the [X3spiritualities] of the seid Archebisshoprich for the tyme being accordyng to the tenour and fourme of this acte, and shalbe of lyke force value and effecte as yf they had byn graunted under the name and seale of the Archebishoppe for the tyme being. ]

The gist seems to be that the authority formerly held by the Church in Rome – The Catholic Church, led by the Pope – is thereby vested in the Crown. Viz, in 1533, King Henry VIII.

Notaries are not mentioned specifically, but being an ecclesiastical appointment, the profession became the licensee of the new Church of England.

Accordingly since the year 1533 or shortly afterwards we Notaries have been regulated by the Faculty Office of the Archbishop of Canterbury. [The new, “Church of England”, Archbishop, not the thirteenth century Catholic one.]

Even sixty years earlier in the reign of [Henry’s Great Uncle] Henry VI, it was not the safest thing to be a Notary if the Bard is to be believed.

From Henry VI part 2 : – Jack Cade and his gang of rabble rousers

“The first thing we do, let’s kill all the lawyers.”

They do seem to share a quite modern aversion to the habits of Notaries to reduce agreements to writing and then keep records. As Cade says

“Nay, that I mean to do. Is not this a lamentable
thing, that of the skin of an innocent lamb should
be made parchment? that parchment, being scribbled
o’er, should undo a man? Some say the bee stings:
but I say, ’tis the bee’s wax; for I did but seal
once to a thing, and I was never mine own man since”

Then as now in some quarters, there was a clear undercurrent of mistrust of education and resentment of the “poshness” of people who work in offices.

[Bob Dylan shows the converse, in Motorpyscho Nightmare “Well, by the dirt beneath my nails I guess he knew I wouldn’t lie”]

For the Clerk of Chatham [“he can write and read …. “ “ Oh Monstrous”] it was a death penalty to be educated.

CADE
Let me alone. Dost thou use to write thy name? or
hast thou a mark to thyself, like an honest
plain-dealing man?
CLERK
Sir, I thank God, I have been so well brought up
that I can write my name.
ALL
He hath confessed: away with him! he’s a villain
and a traitor.
CADE
Away with him, I say! hang him with his pen and
ink-horn about his neck.

And Cade is clearly a Notary Public. The reference to his ink horn defines him [Nigel Ready, Brooke’s Notary]

As the modern texts confirm, an inkhorn and pen-case attached to a silken cord suspended from his girdle formed the distinguishing badge of the medieval notary.

A well-equipped English notary needs a pen, a seal, a ribbon or tape, wafers and a register. “He may if he so wish robe and equip himself with an inkhorn and pen-case suspended from his girdle, but this accoutrement ceased in late mediaeval times.”

Boohoo, still at least we’ve still got our girdles. [Oh, just me then.]

And termites?

Notaries will always seek to incorporate “best practice” from wherever in the World it is defined.

We already have strict rules as to the preservation of our records, protocols and registers. Now we have specific guidance as to termite damage,

Here is a link to an Indian Blog reporting the strictures of the Indian Central Information Commission upon a Notary who pleaded an inability to produce Notarial records in consequence of their destruction by termites.

As the Commission has left her in no doubt, first, this should not have happened. And Second, that the Commission was not entirely convinced.

“While issuing a show cause to the notary concerned, CIC asked Department of Legal Affairs to provide list of Notary registers damaged by termite, list of those survived termite attack, partially damaged registers and to produce remains of registers damaged by termite before the commission”.

They clearly suspect, it’s that old “The dog ate my homework” trope, in a tropical climate.

Anyway, whenever you spot a lawyer, wearing a girdle, from which is suspended by silken thread a pen-case and inkhorn, and spraying his paper records with DDT to kill all the termites, please go up to him, and say confidently, “You are a Notary and I claim my five pounds”

Here is a song from Bob – Song to Woody

As always, for accurate and termite-free Notarial acts and records, please do contact me or Louise whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone me on 0113 816 0116 (internationally 0044 113 8160116)

In/Out Referendum. But – Can You Vote?

Brexit or Brremain? – The Referendum is just around the corner.

In or Out? That’s for you to decide, not for me to tell you. [As if I knew]

And whilst the newspapers and media are full of punditry and comment, one perhaps under-reported news item that has struck a nerve with me, from a legal point of view, is the issue of who can actually vote.

Can you tell me which of these individuals gets a vote in the referendum:–

1. A citizen of Pakistan, living in England, with right to remain visa?
2. A citizen of the Irish Republic, living in England?
3. An English citizen living in Scotland?
4. A citizen of Malta living in England?
5. A citizen of Gibraltar, living in Gibraltar?
6. A citizen of Rwanda living in England with leave to remain visa [nb, Rwanda is a member of the Commonwealth but was never part of the British Empire]?
7. A citizen of France, living in France
8. A citizen of France, living in England
9. A Citizen of England, living in Italy for the past thirty years or so

Answers 1 – 6 – YES
Answers 7- 9 – NO

Seem a bit random to you?

How about case 9 – Harry Shindler, a Citizen of England and an MBE, now aged 94, who as a young British Army soldier in World War 2 fought in Italy to free the world from fascism, fell in love with Italy, and has lived there for many years. No vote for him, no.

Here is the link to the report of the decision of the High Court which refuses his application to be allowed to vote and upholds the present rule of the referendum,

Basically the rule is that EU citizens, other than of Malta and Cyprus, who live permanently in UK, and UK citizens who have lived outside UK in mainland Europe for more than 15 years, will be excluded from voting.

And yet, are these persons not the most likely of all, to be personally affected by the result of the vote? At present they live in a country which is probably not the Country of their birth, but which is part of a Union in which they are more heavily invested than any of us. The referendum is upon the question of whether the country of their present home, and the country of their nationality should stay together or part. And yet, they can only sit and watch.

Harry will seek to appeal the decision, but time is running rather short! And if he should be successful, this will enfranchise so many additional voters that the logistics of arranging a referendum by the appointed day would surely be chaotic.

Given that the likely vote of these disenfranchised people would be for Britain to remain, maybe there is scope here for the conspiracy theorists. As usual with Government and politics, it is the cock-up theorists who are more probably correct.

Link here, Should we stay or should we go. We shall soon see.

As always, whether in Europe or further afield, Please do contact me or Louise whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone me on 0113 816 0116 (internationally 0044 113 8160116)