Repossession by landlord's lender

[cybergibbons]

Hello,

 

I’m seeking some advice as a tenant in a property where the landlord’s lender is seeking repossession. I’ve made names and addresses anonymous in the below.

 

On Saturday, a letter addressed to “The Occupiers/Tenants, 4A and 4B Quality Street” was delivered by normal post. Both ourselves, residents of 4A, and our neighbour at 4B frequently ignore these letters as they are normally junk mail from estate agents, so it’s lucky we opened it. When opened, we realised it was a letter from Eversheds regarding repossession of the property.

 

The text of the letter is as follows:

 

Dear Sir/Madam

 

Bank Of Scotland Plc -V-

Property: 4A and 4B Quality Street

 

An Order for Possession of the above mentioned property has been made in favour of Bank Of Scotland Plc who have instructed us to apply to the court for enforcement. You will receive notification of the time and date of eviction in due course.

 

 

I’ve never been in this situation before, so did some research on the internet and spoke to Shelter on Sunday about the matter. It appears that as tenants in a property being repossessed by the landlord, we are in an extremely weak position.

 

Looking at this page, it seems that there are two key things that would give us more protection:

• If the tenancy agreement is binding.
  
• If the mortgage is buy-to-let
  

 

We have an assured shorthold tenancy agreement from Foxtons. I don’t know how to tell if this is binding or not. I can provide the text from this if required.

 

Several places suggest looking to the Land Registry to find out what type of mortgage is on the property. I’m having some trouble interpreting what it means though.

 

I searched for the property under the name mentioned on the letter, and found that that it appears that the freehold for 4A and 4B is owned by the landlord’s wife, and the mortgage is with Bank Of Scotland. The landlord’s wife is registered as living at 4B.

 

However, this document mentions a leasehold of 4A, so I searched for this as well. The leasehold is under the name of the landlord and his wife, and the mortgage is with another broker. The couple are listed as living at another address altogether.

 

I can provide these documents if the devil is in the detail.

 

I contacted Eversheds this morning. All they could really tell me is that they have begun to apply for the eviction. This would take between 7 and 10 days. They asked for details of the tenancy agreement and amount of rent paid – I have given them some information but not all.

 

I called Eversheds back this afternoon and it appears that the landlord has been in contact to tell them that the funds have been transferred to resolve the situation. Bank Of Scotland needs to substantiate this information and instruct Eversheds to stop the eviction process though. Whether this will happen or not, I don’t know.

 

I asked for information about which court the Order for Possession was granted in, and for a court reference number. On calling the court I was informed that the reference wasn’t valid – this may have been a genuine mistake by Eversheds. The court told me they couldn’t help without the reference. I will follow this up tomorrow.

 

Our rent is paid via an estate agents. The landlord also rents a number of other properties through them. The estate agents were informed of the situation and sent a copy of the Eversheds letter. In a phone conversation, they said that they would hold back payments to him until the situation was resolved.

 

I do not know if the landlord really transferred these funds or not. I would like to prepare for the worst-case situation though.

 

I have a number of questions:

 

1. What is the best course of action here? Can we delay the eviction order?

2. What information is Eversheds obliged to tell us?

3. What information is the court obliged to tell us?

4. Is the mortgage provider obliged to tell us any information about the situation?

5. Does flat 4A being under a separate leasehold to the 4A and 4B freehold provide any isolation from the proceedings?

6. Should we not have been informed of this issue earlier?

7. Surely notification of these kind of things should be by signed-for delivery?

8. Our next rent payment is due in 2 weeks. Are we allowed to withhold this from the estate agents if this situation is still ongoing? We will need as much cash as possible if forced to move.

9. Will seeking a solicitor help? If so, are there any recommendations?

 

Thanks in advance for any help or advice you may be able to give. I’ve really struggled to find information out about this specific situation.

 

Cybergibbons

[marie6666red]

hi i can only go by what happened to a guy we know. he had paid his rent religiously, but also got an eviction notice. i know he went everywhere for advice but at the end of the day, the eviction stood. the mortgage co. werent concerned in the least about him. they only dealt with the borrower who had defaulted. they said that anyone! living in the property on the day of eviction would have to leave.

i certainly wouldnt pay anymore rent. just keep it on hold, a..until the matter is resolved...or b...to help with alternative accommodation.

you need to ask yourself. where is all the rent you have already paid gone.? obviously not on the mortgage. so why throw more money at them.

this poor guy, through absolutely nothing he had done, lost his home. this is the way of the current country we are living in!!!

[cybergibbons]

i certainly wouldnt pay anymore rent. just keep it on hold, a..until the matter is resolved...or b...to help with alternative accommodation.

 

There's a problem in holding back the rent however. We'd be in breach of contract in that case. As the rent is paid via a third party, the estate agents, we'd be penalised for this straight away.

 

Is there anyway out of paying the rent? I can't see one if there is.

 

I've not managed to get much further with this problem TBH. The original possession order was granted in 2005 and the paperwork has been destroyed, leaving just the judgement.

 

3 prior eviction warrants have been granted and then not acted on since then. I'm not sure what to make of this.

[batmyeyelids]

You really need to seek legal advice. Shelter can assist Scotland wide or try a law centre. Some offer free advice and some you would need to qualify for legal aid. Generally the landlord would need to get a court order to evict you as a tenant but if they took you to court they could easily get this because it is a mandatory ground- see Housing (scot) Act 2001. Therefore you should really look for somewhere else. If they had to tak you to court they could ask fior court expenses against you. You could contact the mortgage provider's solicitors and advise you will leave voluntarily by a certain date if they do not take you to court. You can withold your rent because the ll has breached his side of the bargain by not allowing you peaceful enjoyment. Tell the letting agency and put the money in a seperate bank acc as you may have to pay it back if the ll starts paying the mtg. If not move out and use the money as a deposit. Good luck.

[batmyeyelids]

sorry I mean Housing (Scot) Act 1988

[on*the*case]

Whether a tenancy is 'binding' on a lender depends on if the mortgage is a buy to let or the borrower has sought the permission of the lender to let.

 

If the mortgage is not a buy to let or there is no permission to let then the tenancy is not binding on the lender. This also puts the tenant in a very weak position. The law needs revising.

 

In England there is a procedure for 'binding' tenancies that includes detail regarding notices to the tenants etc, and the tenacy be allowed to run its course. It is often the case in England that if there is a binding tenancy a receiver will be appointed until the end of the tenancy.

 

I dont know what the process is for Scotland. Seek legal advice regarding your position and with regard to payment of rent and the security of your deposit.

 

Good Luck.