A High Court judge has dismissed as being ‘totally without merit’ a homeowner’s application to suspend a warrant of possession on her home because she claimed that no notice of the proceedings had been served on the ‘tenant or occupier’.

In the recent case (Richards v Avery-Gee), the claimant (Ms Richards), had brought proceedings against Tentrad Limited, which was by this time in receivership, so was acting through its receivers, Jonathan and Edward Avery-Gee. 

In February 2018, Ms Richards obtained a 6-month mortgage from Tentrad on a residential property as security for a loan she had borrowed from Tentrad. When Ms Richards defaulted on payments, Tentrad began proceedings and obtained an order for possession of the property. Ms Richards was ordered by Clerkenwell County Court to give up possession by 1 February 2019 and also to pay over £80,000 to Tentrad.

In December 2018, Ms Richards was declared bankrupt, and applied to suspend the warrant of possession. She claimed that no notice had been given to ‘the tenant or occupier’ giving at least 14 days’ notice before executing the order for possession, which required to be done under The Mortgage Repossessions (Protection of Tenants etc) Act 2010 and The Dwelling Houses (Execution of Possession Orders by Mortgagees) Regulations 2010.

However, the court found that because Ms Richards was the mortgagor, she did not fall within the category of people whom the 2010 act was intended to protect, i.e. tenants. 

Ms Richards’ application for a continuation of the suspension of the warrant of possession was therefore refused. 

The main point of interest from this case for mortgage practitioners is that a mortgagor cannot take a point about service of the notice addressed to the ‘tenant or occupier’, as required by CPR 55.10 (2) (a).

For more information or to discuss any aspect of this case, please contact me.