Tuesday, September 09, 2008

Another mortgagee / tenant eviction case

I have another mortgagee evicting innocent tenant case for you. Here I was consulted by the letting agent who had been contacted by the distressed tenant. She had just found out she was being evicted, after having received the normal notice which is served on the occupier of the property in these cases. My client was furious as he felt that the landlord had deceived him, plus he was concerned that this situation would reflect badly on his agency business, although it was no fault of his. The property had apparently been owned by the landlord for some time, had been previously rented out by another agency, and there was nothing to alert him to the mortgage problems, otherwise (he told me) he would never have taken the property on.

His main concern was for the tenant however, and he attended Court where he spoke to the Judge about the case.

Apparently this was a second mortgage, and the mortgage company had not been paid since the tenancy started three months ago. The agent asked the Judge, on behalf of the tenant, if he would grant a stay or make a 56 day order, to allow the tenant to continue to live in the property until the end of her tenancy. The solicitor for the mortgagee asked for a 28 day possession order. After considering matters the Judge decided to make a 28 day order. However the tenant will have in the region of 2 months in the property before any bailiffs appointment, which will allow her time to find somewhere else to live (although apparently she had fallen in love with the property and will be sad to leave).

I suggested to the agent that he might want to review his agency terms and conditions and consider including a clause (assuming there is not one there already) specifically providing for the landlord to warrant that all mortgage payments for the property were fully paid up and would continue to be paid for the period of the tenancy. This would mean that if the landlord did default, he would be in breach of his agency agreement, which might give the agent more freedom of action. Agents might also want to consider calling for proof that the mortgage is paid up when taking on new instructions, so as to avoid a situation such as that in my previous post, where an order for possession had been made before the property was ever let to the tenant.

With the property crisis deepening, we will probably be seeing more and more of these sad cases.

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1 comment:

Nearly Legal said...

True. We are getting more calls about this situations.

The trouble is, neither the agent or the tenant had any standing at all in the repossession claim, so I am not surprised the DJ made a 28 day order. I agree on the agent's contract term idea, but then, practically, suing a landlord who is already in mortgage arrears for breach of contract is pretty useless. It would be a contractual warning shot, I suppose.

Pursing defaulting landlords is a sore point. I've just failed to get a charging order on an errant landlord who had, astonishingly in the current situation, managed to sell up in a month. Probably to a 'friend'. Ho hum.