Focus on the Mortgage Repossession (Protection of Tenants Act etc.) 2010.

Focus on the Mortgage Repossession (Protection of Tenants Act etc.) 2010.

17th February 2012

Question: I’m a tenant and I have just received an eviction notice from my Landlord’s Bank (the “Bank”). My Landlord has not been paying the mortgage and now the Bank have obtained a possession order to repossess the property. What are my rights?

Answer: The starting point is to check whether your tenancy was authorised by the Bank? I.e. did your Landlord obtain written authorisation from the Bank to let out the property or in the alternative does he or she have a buy to let mortgage which may imply that the tenancy was authorised.

If the tenancy was authorised then it is likely to be binding on the Bank. The Bank may still take possession of the property but they may have to do so subject to your occupation. The practical effect of this is that you would be allowed to remain living in the property subject to the terms of your tenancy agreement but you would see a change in the identity of the Landlord. It is possible for the tenancy to be brought to an end but in accordance with the terms of the tenancy agreement.

If the tenancy was not authorised then tenants have much fewer rights. The Landlord may be able to come to an acceptable arrangement with the Bank to avoid repossession however if this is not possible then it is likely that the Bank will take possession of the property.

Under the Mortgage Repossession (Protection of Tenants Act etc) 2010 (the “Act”) an unauthorised residential tenant is however entitled to request that possession be delayed for up to two months during which time they should try to find alternative accommodation.

The unauthorised tenant should approach the Bank’s legal representatives with a copy of their tenancy agreement and should request that the Bank provides them with an undertaking pursuant to the Act that they will not take possession of the property for a period of up to two months.

In the vast majority of cases the Bank will grant this undertaking because if it does not then the tenant may apply to the Court for an Order that possession is delayed for up to two months. The Court must consider the circumstances of the tenant and whether there is an outstanding breach by the tenant of a term in the unauthorised tenancy agreement. The Court is likely to make this Order provided that this relief has not been granted previously in the same proceedings.

The tenant may also have a claim against the Landlord for breach of the covenants in the tenancy agreement.