Mortgage Possession- Tenants Notice

The 49th update to the Civil Procedure Rules comes into force on 6 April 2009. Part of the update amends rule 55 which governs possession actions and, particularly, amends the rules on mortgagee possession claims.

Currently rule 55.10 requires that the mortgagee send a letter to the property addressed to ‘The Occupiers’ not less than 14 days before the hearing for possession. This requirement has been amended to force the mortgagee to send the notice not more than 5 days after receipt of the hearing details thus giving occupiers approximately 2-3 weeks more warning of a possession hearing.

Unfortunately the rules do not require any more than this and many people assume post addressed to ‘The Occupiers’ to be junk mail – something the amendment could easily have addressed by requiring a notification on the outside of the envelope. However, where such a notice is not sent in time the tenants could appear in Court and seek an adjournment of the hearing due to the mortgagee’s failure to comply with the rules. The added cost of this might induce the mortgagee to negotiate with the tenants – allowing them to stay in the property on payment of rent direct to the mortgagee, for example.

In practical terms, those acting for tenants should remind them to open all post addressed to ‘The Occupiers’ and should keep in mind the possibility of forcing an adjournment where the rules have not been adhered to as a method of extracting concessions from the mortgagee.

With thanks to Francis Davey.

One Comment

  • Francis Davey 12th February 2009 at 10:34 am

    It will be interesting to see how district judges treat failure to comply with the new 55.10.

    Under the existing rules, a failure to notify can be remedied by an adjournment for at least 14 days to permit proper notice to be given.

    Under the new rules, there is no possibility of remedying the defect without starting new proceedings so strictly speaking the claimant would have to make an application pursuant to CPR3 that it be relieved from having to comply with CPR 55.10. Such an application would require a fee and have to be on notice.

    I imagine the court service would like more application fees. I am not sure whether all judges will require that formality. There are arguments either way.

    In my experience it tends to be non institutional charge holders such as judgment creditors who have obtained a charging order and wish to enforce, who get this wrong.

    As you say a clearer form of wording could have been required on the address. Moral: always open everything addressed to “the occupier”.

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