Mortgage Repossessions (Protection of Tenants etc.) Act 2010

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    Mortgage Repossessions (Protection of Tenants etc.) Act 2010

    Here are the substantive provisions of this Act, enacted when Parliament rose. It will apply only in E&W, as from a date to be prescribed.

    1. Power of court to postpone giving of possession
    (1) This section applies if:
    (a) the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action (other than an action for foreclosure) in which the mortgagee claims possession of the mortgaged property, and
    (b) there is an unauthorised tenancy of all or part of the property.

    (2) When making an order for delivery of possession of the property, the court may, on the application of the tenant, postpone the date for delivery of possession for a period not exceeding two months.

    (3) Subsection (4) applies where an order for delivery of possession of the property has been made but not executed.

    (4) The court may, on the application of the tenant (“the applicant”), stay or suspend execution of the order for a period not exceeding two months if:
    (a) the court did not exercise its powers under subsection (2) when making the order or, if it did, the applicant was not the tenant when it exercised those powers,
    (b) the applicant has asked the mortgagee to give an undertaking in writing not to enforce the order for two months beginning with the date the undertaking is given, and
    (c) the mortgagee has not given such an undertaking.

    (5) When considering whether to exercise its powers under this section, the court must have regard to:
    (a) the circumstances of the tenant, and
    (b) if there is an outstanding breach by the tenant of a term of the unauthorised tenancy:
    (i) the nature of that breach, and
    (ii) whether the tenant might reasonably be expected to have avoided breaching that term or to have remedied the breach.

    (6) The court may make any postponement, stay or suspension under this section conditional on the making of payments to the mortgagee in respect of the occupation of the property (or part of the property) during the period of the postponement, stay or suspension.

    (7) The making of any payment pursuant to:
    (a) a condition of an undertaking of a kind mentioned in subsection (4)(c), or
    (b) a condition imposed by virtue of subsection (6),
    is not to be regarded as creating (or as evidence of the creation of) any tenancy or other right to occupy the property.

    (8) For the purposes of this section there is an “unauthorised tenancy” if:
    (a) an agreement has been made which, as between the parties to it (or their successors in title), is or gives rise to:
    (i) an assured tenancy (within the meaning of the Housing Act 1988), or
    (ii) a protected or statutory tenancy (within the meaning of the Rent Act 1977), and
    (b) the mortgagee’s interest in the property is not subject to the tenancy.

    (9) In this section “the tenant”, in relation to an unauthorised tenancy, means the person who is, as between the parties to the agreement in question (or their successors in title), the tenant under the unauthorised tenancy (or, if there is more than one tenant, any of them).

    2.Notice of execution of possession order
    (1) This section applies where the mortgagee under a mortgage of land which consists of or includes a dwelling-house has obtained an order for possession of the mortgaged property.

    (2) The order may be executed:
    (a) only if the mortgagee gives notice at the property of any prescribed step taken for the purpose of executing the order, and
    (b) only after the end of a prescribed period beginning with the day on which such notice is given.

    (3) “Prescribed” means prescribed by regulations made by the Secretary of State.

    (4) Regulations made by the Secretary of State may prescribe the form of notices and the way in which they must be given.

    (5) The regulations may make supplementary, incidental, transitional or saving provision.

    (6) Regulations under this section may be made only with the consent of the Lord Chancellor.

    (7) Regulations under this section are to be made by statutory instrument.

    (8) A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

    #2
    When do you think it will be enacted? gut feel will do

    Comment


      #3
      Originally posted by matthew_henson View Post
      When do you think it will be enacted? gut feel will do
      Lawyers do not have 'gut feelings' about these things. It's the whole point of being a lawyer.
      'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

      Comment


        #4
        Given that the Act was a Private Member's Bill that crept over the finishing line only on 9 April, I guess that it will need a new Government to decide what happens to it. The new Act is, of course, only a palliative. It merely gives T two months' leeway in case of possession proceedings.
        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
        4. *- Contact info: click on my name (blue-highlight link).

        Comment


          #5
          What we need is law that that stops assured tenancies being granted without consent where consent is required, with suitable compensation payable by landlords and agents.

          Comment


            #6
            Originally posted by Lawcruncher View Post
            What we need is law that that stops assured tenancies being granted without consent where consent is required, with suitable compensation payable by landlords and agents.
            Excellent idea. All agents would have to do is to ask to see the LL's mortgage documents before agreeing to advertise the property.

            They could even charge a hefty fee for running their eye over it.

            Everyone's a winner
            'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

            Comment


              #7
              Originally posted by Lawcruncher View Post
              What we need is law that that stops assured tenancies being granted without consent where consent is required, with suitable compensation payable by landlords and agents.
              But how would that work?

              Assume L creates mortgage to B which prohibits sub-letting without consent but then sublets to T irrespective of that. Currently:
              a. L would be bound to T;
              b. B would not be bound; and
              c. L would be liable to B for breach of covenant.

              If your suggestion were adopted, and the sub-letting made invalid, where would that leave T (occupying but without any rights enforceable against L)?
              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
              4. *- Contact info: click on my name (blue-highlight link).

              Comment

              Latest Activity

              Collapse

              Working...
              X