Tenant aware that landlord has mortgage arrears- effect?

[jeffrey]

Thanks.
I'm assuming that the lender knew L is letting it out as he has several similar properties. Are you saying that if it is a BTL mortgage the M is bound by the tenancy or does the M have to have specific knowledge of my tenancy?

It depends on the mortgage conditions as to whether L:
a. had carte blanche from M to let and re-let without further consent; or
b. needed M's specific consent for each successive letting.

[Swallow]

Thanks All for your help - I'll try to find out more about the mortgage and attend the court (25th Nov).
BTW, assuming the repossession is granted at court, does this happen on the day or is there delay before the repo. is confirmed?

[bill65]

A person enjoying 'exclusive possession for a term in exchange for a consideration' has established title to the protection of the crown through the statue, and it matters not what agreements the landlord has with third parties for they are separate agreements.

Street v Mountford
Bruton v. London and Quadrant Housing Trust

[Swallow]

Thanks Bill65, that sounds promising. Does that mean I should be able to live out the term so long as the landlord had a BTL mortgage?
What about if he didn't notify the M of his intention to let? Will the fact that he is in breach affect my rights to stay, as suggested by Jeffrey?

[jeffrey]

A person enjoying 'exclusive possession for a term in exchange for a consideration' has established title to the protection of the crown through the statue, and it matters not what agreements the landlord has with third parties for they are separate agreements.

Street v Mountford
Bruton v. London and Quadrant Housing Trust

Not quite: "First in time, first in right".
M's interest pre-dates T's interest.

[bill65]

Yes indeed! An estate in land has more authority that a mere interest. I prepared a paper on 'this estate in land' as a constitutional right to the protection of the crown. i shall try and dig it out. i.e the landlord is in breach not the tenant. Jeffrey i think you are thinking of mortgages! When the court grants possession it is to the rent and not the land.

[jeffrey]

Yes indeed! An estate in land has more authority that a mere interest. I prepared a paper on 'this estate in land' as a constitutional right to the protection of the crown. i shall try and dig it out. i.e the landlord is in breach not the tenant. Jeffrey i think you are thinking of mortgages! When the court grants possession it is to the rent and not the land.

Swallow's query was whether M's rights prevail over T's or vice-versa.
I consider that M's rights prevail (unless M is bound by T's rights e.g. if it consented to L's letting).

[Swallow]

Update after court case and further Q?

I attended the court on Tuesday and, as expected, the M got repossession of the flat. The "landlord" did not have a BTL mortgage so was breaking the law; already owes £27K on the mortgage; and seems to have disappeared!

It seems I have 28 days before eviction, which takes me to Christmas. The judge says that bailifs are unlikely to evict until around a week after Christmas. That means I lose about 8 weeks rent, which seems inevitable, but I am now more concerned about the deposit - the agent says they can't release this until 28 days after the contract has formally ended.

Q: Surely, since the contract is now void, and the landlord has "done a runner" the agent should arrange deposit repayment immediately or as soon as we are evicted? (It is guaranteed via TDS).

Thanks

[jta]

Just curious here, does the agent still represent the LL in this situation?

[Ruth Less]

Not quite: "First in time, first in right".
M's interest pre-dates T's interest.

Can you say why you assume M's interest pre-dates T's interest? In recent times it's been common to re-mortgage every 2-5 years to get a new fixed rate deal, if so then T could well have been in occupation before the mortgage was taken out. Does that matter at all?

[Mrs Jones]

Surely Darren a should be contacting the council housing department or local housing association. The threat of a family with 3 children being made homeless through no fault of their own is surely a priority case?

It could also be worth contacting Shelter and the CAB.

I don't think he should just be hoping that they won't be evicted at a moment's notice - but preparing for every possibility/eventuality.

Dreadful bad luck, but probably something which is going to happen a lot more in the next few months.

Edit in light of Swallow's posting - it looks as if the family might be given 28 days in similar circumstances.

[Llamaman]

One wonders if a deal could be done with the motgage company to continue to rent the property from them? In the current market, it's unlikely the mortgage provider will be able to sell quickly and get anything close to the level of the mortgage. Plus, evicting a family with young children right before Christmas through no fault of their own is a public relations nightmare if it were "somehow" to get leaked to the press...

[jeffrey]

Can you say why you assume M's interest pre-dates T's interest? In recent times it's been common to re-mortgage every 2-5 years to get a new fixed rate deal, if so then T could well have been in occupation before the mortgage was taken out. Does that matter at all?

Swallow seemed to suggest that mortgage pre-dated tenancy.
If tenancy pre-dated mortgage, however, one needs to verify whether Borrower L told M that the property was subject to an existing letting.

[Ruth Less]

Swallow seemed to suggest that mortgage pre-dated tenancy.
If tenancy pre-dated mortgage, however, one needs to verify whether Borrower L told M that the property was subject to an existing letting.

Thanks.

To digress from Swallow's case then: if the borrower didn't disclose the existing letting do T's rights prevail as they were first in time?

[SteveP]

the agent says they can't release this until 28 days after the contract has formally ended.

I haven't given this much thought, but it seems to me that the contract ended when the court gave M possession. Your contract with L has been frustrated, L is incapable of keeping his side of the bargain.

Perhaps one of the lawyers here can cofirm.