REF/2010/0855

The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN
BERNARD DAVID THOMAS LEWIS
BARBARA MAY LEWIS
APPLICANTS
and

BERNARD DAVID SHARPHEALE
RESPONDENT

Property Address: Land lying to the north of High Street Warboys

Title Number:  CB197880

Before:  Mr Rhys Deputy Adjudicator to HM Land Registry

Sitting at:  Victory House, 30-34 Kingsway, London WC2B 6EX

On: Monday 18th April 2011

Applicant representation: 	In person
Respondent representation:	In person

D E C I S I O N

KEYWORDS – execution of TR1 – witness not attesting document in presence of signatories – facsimile of transferors’ signatures applied to TR1 – execution invalid under Land Registration Rules 2003 and Law of Property (Miscellaneous Provisions) Act 1989

1.	On 16th July 2004 the Applicants and the Respondent (under his former name Bernard David Lewis) were registered as proprietors of some potential development land on High Street, Warboys, Cambridgeshire under Title number CB197880 (“the Property”).   The Respondent is the Applicants’ son.  The Property has been in the family since 1996, originally in the Respondent’s name, then in his father’s name, before becoming vested in the three parties in 2004.  On 10th August 2007 the Respondent became registered as sole proprietor on the basis of a TR1 dated 6th August 2007.  On 19th October 2007 the Property was registered in the names of the Respondent, Sharon Wendy Sharpheale and Michelle Louise Hurry.  On 6th May 2010 the Applicants applied to HM Land Registry to alter the register by reinstating themselves, together with the Respondent, as registered proprietors, on the grounds that their signatures to the TR1 dated 6th August 2007 were forged.  In the event, neither Mrs Sharpheale nor Ms Hurry objected to the application, but the Respondent did object, and as a result the dispute was referred to the Adjudicator on 10th August 2010.  It is always sad to see families in dispute, perhaps particularly so where parents are pitted against their child, and clearly the relationship between the parties is extremely bitter.  There is a complicated financial background to this dispute, and to the original ownership of the Property, and the Applicants have numerous grievances against the Respondent, which he disputes.  Perhaps fortunately, for the reasons which will become apparent in this Decision, I do not have to consider these other matters, which are in any event not directly relevant to the issue which I have to decide.  That issue is simply this: was the TR1 dated 6th August 2007 and submitted to the Land Registry on 10th August 2007 a valid and effective transfer of CB197880 to the Respondent?

2.	There is a certain amount of agreement between the parties as to the events that led up to the Transfer of the Property to the Respondent in 2007.  According to Mr Lewis (senior), who gave evidence, as did his wife and the Respondent, he spoke to his son in the summer of 2007 with regard to the Property.  It seems that this had some development potential, but it was in poor condition and complaints had been received about its appearance and safety.  Furthermore, Mr Sharpheale needed to raise some money and asked his parents to help him.  It seems that he came to see his father.  Mr Lewis suggested – it does not appear that Mrs Lewis was consulted – that Mr Sharpheale should obtain sole title to the Property, so that he could be responsible for it and sell it.  According to Mr Lewis, his son said something along the lines of “all done, all sorted”.  Mr Lewis took this to mean that the Property had been or would be vested in Mr Sharpheale, but he assumed it had been done through solicitors and “legally”.  He says that he was never asked to sign the TR1, and never did so. He became suspicious of his son after an alleged forgery of a letter in 2008, and he went to the Land Registry to check the title.  While there, he was shown the Transfer dated 6th August 2007, which he regarded as a forgery.  He eventually went to the police to report this, but the police have taken no action against Mr Sharpheale.  Finally, he and his wife made this application in May 2010.  I may add that this was done against the background of the Applicants’ claim that they have lent substantial sums of money to the Respondent, which he has not repaid.  

3.	The Respondent agrees to some extent with this evidence.  He agrees that he discussed with his father the transfer of the Property into his sole name.  His evidence is that his parents agreed to execute a transfer.  He obtained a form TR1 from the Land Registry, which he filled in, and obtained the signatures of his parents to it.  On the following day he took the TR1, signed by his parents, to a Mr John Taylor, and asked him to “witness” the signatures.  According to the Respondent, Mr Taylor signed the TR1 as “witness”.  This document was then submitted to the Land Registry. His parents subsequently went away on a lengthy sailing trip to Europe.  However, there was a problem with the first page of the TR1 which had apparently not been completed properly. The Land Registry returned the document to him with a new TR1 (“the new TR1”) for execution.  Mr Sharpheale had a problem, since his parents were not in the country.  He solved the problem by scanning into his computer the second page of the original TR1, which contained the signatures of the Applicants, and the signature of the “witness” Mr Taylor – and, presumably, his own signature.  He then printed these scanned signatures onto the second page of the new TR1, which he submitted to the Land Registry for registration.  This was done, and his registration as proprietor on the basis of the new TR1 was effective on 10th August 2007.

4.	It might be helpful if I explain the legal requirements for the execution of documents for Land Registry purposes.  The starting point is that a legal interest in land cannot be transferred without a deed – this is the effect of section 52(1) of the Law of Property Act 1925.  By virtue of rule 58 of the Land Registration Rules 2003 (“LRR”) a transfer of a registered estate must be (in this case) in Form TR1.  Rule 206(3) of the LRR requires that the forms of execution set out at Schedule 9 to the LRR must be used.  Schedule 9 contains standard form attestation clauses, prefaced by a note to this effect: “All dispositions other than assents must be executed as a deed.”  Specimen A in Schedule 9 – where the instrument is to be executed personally by an individual – includes the requirement that the instrument should be signed as a deed in the presence of a witness.

5.	The rules relating to the execution of deeds are to be found in section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (“the 1989 Act”), which is in these terms:
 An instrument shall not be a deed unless—
(a) it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and
(b) it is validly executed as a deed by that person or, as the case may be, one or more of those parties.
(3) An instrument is validly executed as a deed by an individual if, and only if—
(a) it is signed—
(i) by him in the presence of a witness who attests the signature; or
(ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and
(b) it is delivered as a deed by him or a person authorised to do so on his behalf.

6.	It will be seen that the LRR and the forms of execution contained in Schedule 9 reflect the requirements of a deed as set out in this statute.  It is perhaps stating the obvious to say that the reference to signature is to a manually applied signature, not to one applied by electronic means, whether by scanning or photocopying or even a signature stamp – see Land Registry Practice Guide 8 2010 at paragraph 3.1.1.  

7.	Having regard to the evidence, have the Applicants been able to impugn the validity of the TR1 dated 6th August 2007 and submitted to the Land Registry on or about 10th August 2007?   It follows from the evidence given by the Respondent that the document submitted to the Land Registry did not comply in at least two respects with the requirements of the 1989 Act.  First, the new TR1 was not signed by the Applicants.  Their signatures were electronically copied into the TR1.  That does not constitute a signature within the meaning of the 1989 Act.  Secondly, the purported signatures were not witnessed.  Even if the Respondent’s evidence is taken at face value, and the Applicants did sign the first TR1, it is clear that Mr Taylor did not witness their signatures.  The prescribed form of execution of the TR1 includes the following: “signed as a deed by (full name of individual) in the presence of …………”.  This reflects the statutory requirement for a witness.  A witness is not a person who applies his signature to a document which has already been signed, out of his presence.  Such a person has witnessed nothing.  Equally, when the signatures were printed by the Respondent onto the new TR1, Mr Taylor could not possibly have witnessed their signatures.  I should add that there is a witness statement from Mr Taylor, who did not attend the hearing.  In this statement, he recalls signing a document at his place of work, at the Respondent’s request.  He says that he has been shown two documents by the police, although he does not exhibit them or otherwise identify them.  He accepts that his signature is genuine on one of the two, but that it has been forged on the second document.  I infer that he is referring to the two forms of the TR1 – and that the forged signature is on the new TR1 which led to the registration of the Respondent.  At all events, it is clear that there has been no proper witnessing of either document.

8.	There is a third respect in which the new TR1 probably does not comply with the 1989 Act.  A deed must be “delivered” by the persons executing it, or by a duly authorised person.  This does not require any particular magic.  However, since, on the Respondent’s case, the Applicants were quite unaware of the existence of the new TR1, it is difficult to see how they could be said to have delivered it.

9.	In conclusion, therefore, I find that the document submitted to the Land Registry in August 2007 was not a deed since it did not comply with the formal requirements of the 1989 Act and the LRR.  It was, in the strict sense, a forgery.  The signatures were not those of the Applicants but were copied. The document was therefore a nullity, and should not have been given effect to.  In the circumstances, the register should be altered to reverse the transaction.  I shall therefore direct the Chief Land Registrar to give effect to the Applicants’ application dated 6th May 2010. The effect will be to restore the proprietorship register as it existed prior to 10th August 2007.

Dated this 3rd day of May 2011

By Order of The Adjudicator to HM Land Registry