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September 2010

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Sept 10 Update
Item Civil Procedure Rules 53rd Update: 1st October 2010 The Dwelling-Houses (Execution of Possession Orders by Mortgagees) Regulations 2010
Procedure The CPR 53rd Update was introduced by The Civil Procedure (Amendment No.2) Rules 2010 and takes effect on 1st October 2010. It contains two relevant amendments:  CPR 55.10 (Possession claims relating to mortgaged residential property) is amended by inserting after CPR 55.10(4) the following new provision: “(4A) An unauthorised tenant of residential property may apply to the court for the order for possession to be suspended.”  CCR Order 26, rule 17 (Warrant of possession) is amended as follows: In CCR Order 26, rule 17— (a) In paragraph (2)— (i) for “desiring” substitute “applying for”; (ii) omit “to be issued”; and (iii) for “request certifying” substitute “certificate”; and (b) After paragraph (2) insert— “(2A) When applying for a warrant of possession of a dwelling-house subject to a mortgage, the claimant must certify that notice has been given in accordance with the Dwelling Houses (Execution of Possession Orders by Mortgagees) Regulations 2010).” The amendments are made in consequence of The Mortgage Repossessions (Protection of Tenants etc) Act 2010, and The Dwelling-Houses (Execution of Possession Orders by Mortgagees) Regulations 2010, both of which are brought fully into force with effect from 1st October 2010 by the The Mortgage Repossessions (Protection of Tenants etc) Act 2010 (Commencement) Order 2010. In summary, The Mortgage Repossessions (Protection of Tenants etc) Act 2010 gives limited statutory protection to unauthorised tenants whose landlords are repossessed by their lender. An unauthorised tenancy means either an assured, protected or statutory tenancy to which the mortgagee’s interest is not subject. It does not therefore apply to buy to let mortgages or where the landlord has otherwise obtained consent to let. Tenants should be alerted to the risk of repossession either by service of a notice to occupiers prior to a hearing (CPR 55.10(2)), or by the service of a new form of prescribed notice prior to execution. The prescribed form of notice is contained in the schedule to The Dwelling-Houses (Execution of Possession Orders by Mortgagees) Regulations 2010, and the mortgagee cannot execute the warrant until fourteen days after giving the notice. A new Form N325 Request for Warrant of Possession of Land (as amended by CCR Order 26, rule 17) requires the mortgagee to certify that notice has been given when it applies for a warrant of possession. When making an order for possession, the court may on the application of the tenant postpone the date for delivery of possession for up to two months. Alternatively, the court may on the application of the tenant stay or suspend execution of the order for up to two months subject to certain conditions. The court can make any postponement, stay or suspension conditional on the making of payments to the mortgagee.