REF/2006/1313

 

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

SAIED FATEMI-ARDAKANI

 

Applicant

and

 

(1)   TARANEH TAHERI

(2)   ARASH FATEMI-ARDAKANI

 

Respondents

 

 

 

Property Address: 76 Algers Road, Loughton, Essex

Title Number EX200189

 

Before: Ann McAllister, sitting as Adjudicator to HM Land Registry

Procession House, London

12 September 2007

 

The Applicant was assisted by Afshari-Mehr; the Respondents were represented by Patrick Rolfe of Counsel instructed by Charles Russell.

 

___________________________________________________________________________­

 

DECISION ON A PRELIMINARY ISSUE

__________________________________________________________________________

 

Validity of transfer – whether donee of power of attorney can sign a deed in his own name – authority required – whether transfer must indicate that he is so signing – effect of failure to comply with Rule 82 of the Land Registration Rules 2003 – Powers of Attorney Act 1971 ss 7 and 10 – Frontin v Small (1790 2 Lord Raym 1417, White v Cuyler (1795) 6 T.R 176, Wilkes v Back (1802) 2 East 142, Combes’ Case (1613) 9 Co. Rep 75a

 

Introduction

 

1.                    The Applicant (‘Saied’) is the father of the Second Respondent (‘Arash’) and the father in law of the First Respondent (‘Taraneh’). On 10 January 2006 Saied applied to the Land Registry under Schedule 4 to the Land Registration Act 2002 to remove Arash and Taraneh as the registered proprietors of 76 Algers Road, Loughton (‘the Property’) and to be reinstated as proprietor.

 

2.                    The basis of his application, as it then was, is to be found in a letter dated 10 January 2006 and previous correspondence from his (then) solicitors, Porter Crossick. The allegation was that the transfer dated 30 March 1998 (‘the Transfer’) by which the Property was transferred by Saied to Taraneh (in consideration of natural love and affection) was a forgery of which he had no knowledge. If, as claimed, the Transfer was made under a power of attorney there is nothing to indicate on the Transfer itself that this was the case.

 

3.                    On 30 May 2003 Arash and Taraneh were registered as joint proprietors.

 

4.                    Arash (and his wife) objected to the application on 13 July 2006. The objection took the form of a lengthy witness statement made by Arash (the First Witness Statement). The dispute was referred to the Adjudicator on 2 October 2006, by which time Saied was representing himself (with the assistance of Mr Ashfari-Mehr, a friend).

 

5.                    Saied’s Statement of Case (dated 8 November 2006) states that he purchased the Property in 1978 so that his children could live there whilst they were studying in the United Kingdom and so that he could retire there. He came to this country in 2001 from Teheran. His case, in essence, is that it was only when he had to provide evidence to the Home Office that he was financially self sufficient that he learned that the Property had been transferred from him to his daughter in law, and then to his daughter in law and his son. The matter was then reported to the police.

 

6.                    In correspondence with this Office, the solicitors for Arash and Taraneh identified the issues in the case as not whether the Transfer was executed by Saied but whether the power of attorney dated 31 January 1998 (the 1998 Power) is void or voidable by reason by fraud, undue influence, misrepresentation and/or non est factum. Saied accepts that he signed the Power of Attorney but it is indeed his case that it was never intended that the Power of Attorney should be used to allow one of his children to transfer the Property to himself (or his wife): such an act is, on its face, not in his interest as principal. This is the general nature of his complaint: as I explain below, it will be a matter for him to formulate the nature of his case with greater particularity in a further Statement of Case.

 

7.                    On 8 June 2007 I heard a Case Management Conference and ordered that there be a trial of a preliminary issue, namely whether (assuming but not deciding) that Arash had authority to execute the same under the 1988 Power, the Transfer was valid.

 

8.                    In the event that the Transfer is not valid, the Respondents accept that the outcome would be an order requiring the Chief Land Registrar to give effect to Saied’s application. On the other hand, if the Transfer is valid, then I would give directions for the disposal of the reference. In other words, the issue as to whether or not the 1988 Power is valid and enforceable would remain an issue to be dealt with on another occasion.

 

The scope of the preliminary issue

 

9.                    Subject to one qualification, I agree with Counsel that this raises two separate questions:

 

(1)   Whether the donee of a power of attorney is entitled to execute a deed by signing his own name without also including some express statement, on the document, that he signs on behalf of the donor;

(2)   Whether, if the answer to the first question is in the affirmative, a deed executed in this manner complies with the formalities of a transfer of registered land.

10.                The qualification, as will be explained further below, is whether it is also necessary for the donee of the power to establish that he had authority to sign in the donor’s name.

 

Execution by a donee

 

11.                As a general proposition whatever may be done by a person can be done by means of an agent: see Halsbury’s Laws of England, 4^th ed Vol 2(1) at para 3. Where an agent is given power to execute a deed, that power must itself be contained in a deed. In such cases, the necessary authority is conferred by an instrument known as a power of attorney. A general power of attorney is provided by section 10 of the Powers of Attorney Act 1971 (the 1971 Act). The 1998 Deed is in the form set out in schedule 1 to the 1971 Act.

 

12.                The 1998 Deed reads as follows: ‘I SAEED FATEMI-ARDAKANI of 142 Merdamad Avenue, Teheran, Iran hereby appoint ARASH FATEMI-ARDAKANI of 78 Algers Road, Loughton, Essex to be by Attorney in accordance with Section 10 of the Powers of Attorney Act 1971 IN WITNESS WHEREOF I have hereunto set my hand and seal this 31^st day of January 1988.’ The Deed was signed by Saied and witnessed by his wife.

 

13.                Section 10 of the 1971 Act provides as follows:

 

(1)   Subject to subsection (2) of this Act, a general power of attorney in the form set out in Schedule 1 to this Act or in a form to like effect but expressed to be made under this Act, shall operate to confer-

(a)    on the donee of the power or;

(b)   if there is more than one donee, on the donees acting jointly or acting jointly or severally as the case may be,

authority to do on behalf of the donor anything which he can lawfully do by an

attorney.

 

14.                Subsection (2) states that the section does not apply to functions which the donor has as trustee or personal representative or as a tenant for life or statutory owner within the meaning of the Settled Land Act 1925. This subsection has no relevance to the present case.

 

15.                There is no doubt that the donee has power to execute a transfer on behalf of the donor: as stated above, the general rule is that whatever a person can do himself can be done by an agent.

 

16.                Section 7 of the 1971 Act (as amended by the Law of Property (Miscellanous Provisions Act 1989 and by SI 2005/1906 (Regulatory Reform (Execution of Deeds and Documents Order, Sch 2 Para 1 ) provides as follows:-

 

(1)   If the donee of a power of attorney is an individual, he may, if he thinks fit-

(a)    execute any instrument with his own signature and

(b)   do any other act in his own name,

by the authority of the donor of the power; and any document executed or thing done in that manner shall, subject to subsection (1A) of this section, be as effective as if executed by the donee in any manner which would constitute due execution of that instrument by the donor, or, as the case may be, as if done by the donee in the name of the donor.

(1A) Where an instrument is executed by the donee as a deed, it shall be as effective as if executed by the donee in a manner which would constitute due execution of it as a deed by the donor only if it is executed in accordance with section 1(3)(a) of the Law of Property (Miscellaneous Provisions) Act 1989.

(2) For the avoidance of doubt it is hereby declared that an instrument to which subsection (3) of section 74 of the Law of Property Act 1925 applies may be executed as provided in that subsection or as provided in this section.

[…..]

(4)   This section applies whenever the power of attorney was created.

 

17.                The effect of section 7 is procedural: it does not allow a party to do by an attorney an act which he is only competent to do, such as swearing an affidavit (see Clauss v Pirr [1988] 1 Ch 267.

 

18.                Section 7(1) replaces section 123(1) the Law of Property Act 1925 which in turn replaced section 46(1) of the Conveyancing and Law of Property Act 1881.

 

19.                Section 123 of the 1925 Act (which is to all intents and purposes the same as section 46(1) of the 1881 Act) provides:-

 

The donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument, or thing in and with his own name and signature, and under his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature of the donor thereof.

 

20.                It is clear from the authorities that, at common law, the proper method of executing a deed on behalf of a principal under a power of attorney was to sign in the name of the principal: see Frontin v Small (1790) 2 Lord Raym. 1417, White v Cuyler (1795) 6 T.R. 176 and Wilkes v Back (1802) 2 East 142. The reasoning for this is set out in Combes’ Case (1613) 9 Co.Rep 75a: ‘ It was resolved that any has authority as attorney to do any act he ought to do it in his name who gives authority; for he appoints the authority to be in his place and to represent his person; and therefore the attorney cannot do in his own name, nor as his proper act, but in the name and as the act of him who gives authority.’ A deed not so signed was void. The exact words used in signing was, and remains, immaterial, so that it was possible (and might be said desirable) to sign both in the name of the principal and in his own name to denote that the act was done on behalf of the principal (see Wilkes v Back). The effect of section 7(1) of the 1971 Act (superseding earlier legislation) is to allow for an alternative or additional form of execution. The old doctrine that a deed executed by an attorney in his own name is void is no longer good law.

 

21.                Two issues arise. The first is whether section 7(1) (or indeed the predecessor legislation) requires that the donee should have specific authority to sign in his own name. There is no authority on this point. I have not found it a particularly easy point to decide.

 

22.                Bowstead on Agency,18^th ed, art 77, para 8-098 states that the view taken in earlier editions of the work was that such authority was required, but that this seems to be unlikely. Halsbury’s Laws of England Vol 2(1) para 72 seems to assume that the donee must be so authorised by the donor, but does not deal with this point in terms.

 

23.                It seems to me that the words ‘by the authority of the donor of the power’ do no more than to state that the power of attorney must confer the requisite authority. If, as here, the power to sign is being exercised under a general power of attorney, that power will itself confer authority to sign. The authority is implied by the scope of the power already granted. There may be instances where by statute the document or contract can only be signed by the party itself, in which case the agent cannot sign. This is not the case here.

 

24.                If the legislation intended to impose a requirement that additional authority be given to sign in the donee’s name this requirement would, it seems to me, have been made clear. The effect of such a requirement would be to restrict what is otherwise a general additional power. It would also be odd to impose such a requirement where the donee signs in his own name, but not where the donee signs in the name of the donor. I do not therefore think it is right to construe section 7(1)of the 1971 Act as requiring, in addition to the powers conferred generally by the power of attorney, a further and specific authorisation to sign the document in the name of the donee.

 

25.                The second issue which arises is whether the principal must also be named in the deed. There is no requirement in the 1971 Act that this is required, and it is clear

 

on the authorities that it is not necessary to indicate that the signature is not that of the principal where the agent has written the principal’s name by way of signature: see for instance LCC v Agricultural Food Products Ltd [1955 ] 2 QB 218.

 

26.                At this stage I should say something of the circumstances in which the Transfer came to be executed. I heard evidence from Arash on this point, and have also seen some (if not all) of the correspondence between Arash, his brother in law, and the solicitors then acting on this point.

 

Execution of the Transfer

 

27.                In paragraph 17 of the First Witness Statement Arash simply states that the Transfer was executed with his wife signing on her own behalf and Arash signing on this father’s behalf pursuant to the 1998 Power. In evidence Arash stated that the document was signed in Moscow, where Arash was then working with Bovis Lendlease, in the presence of a colleague, Kevin James, a surveyor.

 

28.                The Transfer was sent by Philip Ross & Co to Arash’s brother in law, Mac Hadj-Bagheri under cover of a letter dated 9 February 1998. The letter reads as follows:

 

Herewith the Transfer. Mr Arash Fatemi-Ardakani should execute as Transferor. I have placed his initials where he should sign…..Both of them should have their signature witnessed by an independent witness (who) should add his or her name address and occupation, and the deed should please be left undated. You will see that I made it clear that the Transferor is executing by virtue of Power of Attorney…

 

29.                The Transfer is in Form 19 pursuant to Rule 98 of the Land Registration Rules 1925. The rules were amended so that , with effect from 1 April 1998, a transfer of land must be in Form TP1, TP2, TP3,TR1, TR2 and TR5 as the case may require.

 

30.                The Transfer states that: in consideration of the natural love and affection which SAEED FATEMI-ARDAKANI formerly of 76 Algers Road Loughton Essex but now of 142 Merdamad Avenue Teheran Iran (the Transferor) has for his daughter in law TARANEH TAHERI of 76 Algers Road (the Transferee) the Transferor with full title guarantee hereby transfers the land comprised in the title set out above.

 

31.                It is possible to make out the initials SF next to the words ‘Executed as a Deed by the said Transferor.’ Arash signed the Transfer. There is nothing in the Transfer, contrary to what is said in the letter, to indicate that the Transferor was executing the document by virtue of a power of attorney, nor to indicate in any way that Arash’s signature was not the transferor’s. No explanation has been provided as to why the document did not make reference to the power of attorney.

 

32.                Arash said that he simply signed as the letter told him to, and that he did not notice the intitials SF, nor the absence of any reference to the power of attorney, He did not date the document. He believes he sent the Transfer and a letter dated 2 March 1998 to his brother in law, who in turn sent it to Mr Eales of Philip Ross &Co. His letter dated 2^nd March encloses the Transfer and says it was completed according to Mr Eales’ instructions.

 

 

Registration

 

33.                The first point to make is that there was (and remains) no prescribed form of attestation clause where the transfer is executed by a donee of a power of attorney. Rule 82 of the Land Registration Rules 1925 requires, where an instrument executed by an attorney is delivered to the Registry, that there be produced to the Registrar the instrument creating the power of attorney or a copy by means of which the contents may be proved under section 3 of the 1971 Act (the same provisions are now to be found in Rule 61 of the Land Registration Rules 2003).

 

34.                In the present case, Rule 82 was not complied with. The issue which therefore arises is the effect of this non compliance. It is of course in the interests of the Registrar to satisfy himself that any power under which a donee makes a disposition of an interest is valid at the time of the disposition. In the event that any question should arise as to the proper execution of the deed, the Registrar would have a record (either the original or a certified copy) of the power.

 

35.                An alteration of the register can only be made under section 65. This refers to schedule 4. Paragraph 5 gives the registrar (and accordingly the Adjudicator) a discretion to alter the register for one of four specified purposes. The only relevant one in this case would be the correction of a mistake. Particular provisions apply to registered proprietors in possession. These provisions would not, in any event, apply in this case since, as I understand it, Arash and Taraneh do not reside in the Property nor were they residing there when the application to alter the register was first made.

 

36.                It seems to me that there is no mistake on the register which requires to be corrected. The failure to provide the original or a copy of the 1998 Power might be described as a procedural error but it does not invalidate the Transfer. In the event that the 1998 Power is itself invalid, then the Transfer would also be invalid. For the purpose of the preliminary issue, however, I am assuming that the Power was valid and that Arash was authorised to execute the Transfer pursuant to the Power. The failure to comply with Rule 82 falls away when the registration is completed.

 

37.                In any event, it is a failure which can be cured, since it is now possible to provide the original or a copy to the Registrar. Accordingly, even if the failure to provide the original or a copy of the 1998 Power is properly to be construed as a resulting in a mistake on the register, in my judgment it would not be an appropriate exercise of my discretion to alter the Register as sought by Saied.

 

 

Future Directions for the hearing of the case

 

38.                For the reasons given above, I will answer the preliminary issue in favour of the Respondents, and will give directions for the future conduct of the case.

 

39.                Both sides have already filed and served Statements of Case. Nonetheless, as the issue has now been narrowed to the scope and validity of the 1988 Power, I will give the following directions:

 

(1)   The Applicant is to serve and file a further Statement of Case within by 5pm on 9 October 2007 setting out, with the same particularity as will be relied on at the hearing, the reasons for this allegation that the 1988 Power did not authorise Arash to execute the Transfer;

(2)   The Respondents will, if so advised, serve and file a Statement of Case in reply by 5pm on 23 October 2007;

(3)   Documents relevant to this issue (if any) to be disclosed by 5pm 6 November 2007;

(4)   Further witness statements, if any, are to filed and served by 5pm on 27 November;

(5)   The case to be set down for hearing with a time estimate of two days on the first available day suitable to the parties after 6 November 2007

 

38. I will reserve the case to myself. The costs of the preliminary issue will be reserved to the conclusion of the hearing of the case.

 

 

 

BY ORDER OF THE ADJUDICATOR

 

ANN McALLISTER

Dated this 18 day of September 2007