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Mortgage Repossessions (Protection of Tenants Etc.) Bill


 

Mortgage Repossessions (Protection of Tenants Etc.) Bill

 
 

EXPLANATORY NOTES

Explanatory notes to the Bill, prepared by the Department for Communities and

Local Government with the consent of Lord Best, are published separately as HL Bill

38—EN.

 
HL Bill 3854/5
 

 


Mortgage Repossessions (Protection of Tenants Etc.) Bill

1

 

A

Bill

To

Protect persons whose tenancies are not binding on mortgagees and to require

mortgagees to give notice of the proposed execution of possession orders. 

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

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,

5

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.

10

(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

15

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

20

(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

 

HL Bill 38                                                                                              

54/5

 
 

Mortgage Repossessions (Protection of Tenants Etc.) Bill

2

 

(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.

5

(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—

10

(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.

15

(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

20

(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

25

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

30

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

35

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

40

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.

 
 

Mortgage Repossessions (Protection of Tenants Etc.) Bill

3

 

(8)   

A statutory instrument containing regulations made under this section is

subject to annulment in pursuance of a resolution of either House of

Parliament.

3       

Interpretation

(1)   

This section applies for the purposes of this Act.

5

(2)   

“Dwelling-house” includes any building, or part of a building, that is used as a

dwelling.

(3)   

The fact that part of the premises comprised in a dwelling-house is used as a

shop or office, or for other business, trade or professional purposes, does not

prevent the dwelling-house from being a dwelling-house for the purposes of

10

this Act.

(4)   

“Mortgage” includes a charge, and “mortgagee” is to be read accordingly.

(5)   

“Mortgagee” includes any person deriving title under the original mortgagee.

(6)   

“Order” includes a judgment, and references to the making of an order are to

be read accordingly.

15

4       

Commencement, extent and short title

(1)   

This Act (except this section) comes into force on such day as the Secretary of

State may by order made by statutory instrument appoint (and different days

may be appointed for different purposes).

(2)   

An order under subsection (1) may make transitional or saving provision.

20

(3)   

This Act extends to England and Wales only.

(4)   

This Act may be cited as the Mortgage Repossessions (Protection of Tenants

etc) Act 2010.

 
 


 
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