landlord £12,000 in arrears in mortgage

[Deleted User]

i would just like to say thankyou to those who have been helpful i suppose it's just a waiting game now.

and to silver car they knew he had moved as previous letters they had sent him had been returned as not known at this address.

franklee

mummyof5, What a horrible position to be put in, here are my thoughts of what I'd do in your situation:

Rent isn't due unless you have an address for the landlord. You still owe the rent so would need to put it aside to pay once you have been given the address. So contact the landlord immediately and request a letter from him giving his address. If he is living abroad then you also want an address in England upon which you can serve notices, this is needed if there is a dispute e.g. over your deposit or lack of repairs or if you want to serve notice to quit.

Was your deposit protected in a scheme? Read the details you were given and ring them up to check your deposit is there. This is necessary to make sure that when you do move you will be able to get your deposit back. If it's not registered and the landlord is broke obviously your deposit is at risk.

Write to the mortgage lender and let them know you are the resident tenant, ask them to keep you informed of any possession proceedings and say you would like to attend any hearing. They may not respond but those who don't ask don't get. There are meant to be new rules in place that tenants get notice of repossession now so you want to be sure they know you are the tenant and make sure you read all letters addressed to the occupier as this may be notice of the repossession.

Finally you do need to start getting ready to move. Are you on a periodic tenancy now, if so you can give a months notice ending at the end of a rental period. If you are tied into a fixed term then try and negotiate your way out with the landlord now the repossession is looming. Do you have the deposit and fees to put down on a new place?

Let us know how you get on.

franklee

silvercar wrote: »

what i would like to know is what will happen from here on ? it is pretty obvious the house is going to be reposessed Lender becomes your landlord, receiver of rent appointed, you will probably get notice to leave at the end of the fixed term or your legal entitlement to notice if your contract is periodic..

Or be given notice under Section 8 Ground 2: that the mortgagee is claiming possession which is two months notice which can break the fixed term.

tbs624

franklee wrote: »

Or be given notice under Section 8 Ground 2: that the mortgagee is claiming possession which is two months notice which can break the fixed term.

The LL would have had to make the T aware at the start of the T that the use of this Ground was a possibility, except where the court views it as equitable to dispense with the requirement ( and on a wider note the specific mortgage would had to have pre- dated the tenancy)

silvercar

franklee wrote: »

Or be given notice under Section 8 Ground 2: that the mortgagee is claiming possession which is two months notice which can break the fixed term.

Are you serious?

So all the talk on other threads, of the landlord having permission to let means that the lender will allow you to remain through to the end of the fixed term, isn't true??????

franklee

tbs624 wrote: »

The LL would have had to make the T aware at the start of the T that the use of this Ground was a possibility, except where the court views it as equitable to dispense with the requirement ( and on a wider note the specific mortgage would had to have pre- dated the tenancy)

Often this notification it put in the tenancy agreement, it's in mine.

In the OP's case the mortgage did pre-date the tenancy.

[Deleted User]

thankyou franklee that was a really helpful post
yes i am now on a periodic tenancy as far as i am aware , i signed a letter sent by the letting agent who introduced us , but as they don't manage the property they refuse to get otherwise involved.
i am putting my share of the rent aside each week but housing benefit have written again to say as they haven't received his new address details they have suspended the benefit until they do.
i think my deposit is protected under the scheme but i don't have the money for another deposit or removal costs as since i started work i am actually financially worse off (don't ask me how that works but i am).
i am at a loss now as to what to do

franklee

silvercar wrote: »

Are you serious?

So all the talk on other threads, of the landlord having permission to let means that the lender will allow you to remain through to the end of the fixed term, isn't true??????

I have mentioned this Section 8 Ground 2 many times before, here is one exmaple that was even in answer to you:

http://forums.moneysavingexpert.com/showpost.html?p=5263120&postcount=24

If there is permission to let then the tenant will have been given the two months notice (under section 8 ground 2) BEFORE it goes to court (just like a section 21 notice or a section 8 ground 8 notice for rent arrears expires before court proceedings occur). Section 8 ground 2 is a mandatory notice so that the judge is obliged to award possession provided all the paperwork is correct but the tenant will have had his two months notice BEFORE that.

Without permission to let from the lender the tenant will not get this notice. They will only find out about the possession order late on and sometimes only at the last minute. Even if they get wind of mortgage arrears they are in a quandary of if they should move out or not as they do not know if there will actually be a repossession and so may get penalised for moving out during the fixed term.

Frankly the two months notice makes a huge difference!

There are circumstances where the tenant can stay till the end of the fixed term, such as the tenant being there before the mortgage was taken out but then the lender still gets posession but not right away. The lender would not lose the case, I doubt they would take court action if they would lose, so it's not suprising the poster you quote han't seen this. Lenders know what they are doing.

This was in answer to you too:

http://forums.moneysavingexpert.com/showpost.html?p=5256933&postcount=20

Extract, my bolding:

If the landlord has permission to let from the lender (either specific written permission for a normal mortgage or having a BTL mortgage that allows letting) the tenant does have the protection of the tenancy agreement. What this means in practise depends on the details such as if the tenant was in-situ before the mortgage was taken out. But worst case it would mean the tenant is given two months notice to leave under section 8 ground 2 after which there would need to be a court application for possession. Although section 8 ground 2 allows for the two months notice to expire before the end of the fixed term that's a heck of a lot better for the tenant than little or no notice so the tenant SHOULD make sure there is permission to let from the landlord's lender.

The post goes on to give links to back this up.

Perhaps you could specify which bits you do and don't agree with otherwise we will go round in circles again?

silvercar

Perhaps you could specify which bits you do and don't agree with otherwise we will go round in circles again?

Again!

Lets just say, I've learnt a lot about section 21 from you and wouldn't serve it at the start of a tenancy:)

As far as consent to let goes, I believe that lenders should be forced (by government) to give consent to let where there are no arrears. I also reckon that a "lender states there are no arrears" document would be of more practical use than any consent to let notification to a tenant.

franklee

sivercar, Here is another reply in answer to you on the same issue, note the No at the start in answer to your "you expect the lender to wait until the 6 month break clause to repossess?":

http://forums.moneysavingexpert.com/showpost.html?p=4051484&postcount=24

franklee wrote: »

No I didn't say that.

The tenancy agreement should have something about notice under ground 2. Or the lender may recognise the tenant. It depends on the circumstances. But it's clear that if there isn't consent to the tenancy from the lender then the tenant has NO protection against the lender.

More details:

http://www.compactlaw.co.uk/free_legal_information/private_housing/privhf14.html

Most mortgages have a condition that the property cannot be let without the prior written consent of the lender. Landlords should always seek the consent of the lender before letting their property.

This is important because any tenancies granted without the consent of the lender and after the date the mortgage was taken out will not protect the tenant(s) against the lender.

http://www.thesite.org/homelawandmoney/askthesiteqandas/housingqandas/repossessionrights

The property was purchased with a mortgage expressly for the purpose of being commercially let (sometimes known as a 'buy to let' mortgage). If this was the case the lender can apply to the court to have you evicted under Ground 2 of the Housing Act 1988. This is provided that written notice to this effect was given to you by the landlord at the start of the tenancy - although be aware that the court can waive this requirement.

EDIT
Sorry missed:

However, you may have the right to stay in the property if one of the following applies:
.... snip ....
You moved in after your landlord took out the mortgage, but the lender agreed to the tenancy;

from that second link.

A few more examples where I've mentioned Section 8 ground 2:

http://forums.moneysavingexpert.com/showpost.html?p=13252813&postcount=31

franklee wrote: »

Not sure what this comment is referring to but in case it was anything to do with my previous post I'd just like to say I am not talking about a section 21 notice. I'm talking about a Section 8 notice using ground 2. This can end the tenancy during the fixed term just like ground 8 can. The various grounds are listed here:

http://www.letlink.co.uk/letting-factsheets/factsheets/factsheet-8---claims-for-possession-the-section-8-notice.html

http://forums.moneysavingexpert.com/showpost.html?p=13249799&postcount=29

franklee wrote: »

That's bad luck, presumably you don't know if the lender had given consent to let in those two cases?

Consent to let does make the difference. There's loads of information on this online but for an example see here:

http://www.thesite.org/homelawandmoney/askthesiteqandas/housingqandas/repossessionrights

Note that it mentions notice under ground 2, this is two months notice. As this is a prior notice ground the LL should have written that he may need this in future usually by putting it in the tenancy agreement, but the requirement to have done this may be waived by the court. It is not the two months notice itself that may be waived. Without the consent to let a tenant would not be entitled to notice.

http://forums.moneysavingexpert.com/showpost.html?p=12604089&postcount=9

franklee wrote: »

If the lender has given consent to let they will honour the contract, but that does not necessarily mean being bound till the end of the fixed term as they can give two months notice under ground 2.

From a tenant's point of view two months notice is much better than nothing but in the OPs case we do not know if there is consent to let, so I'd ring up the lender and see what the situation is.

I'm also puzzled by the reference to the legal firm who drew up their contract, did the tenants arrange for the tenancy agreement to be drawn up? That's very unusual.

http://forums.moneysavingexpert.com/showpost.html?p=12489027&postcount=17

franklee wrote: »

Ground 2 is a prior notice ground which means it should be used when the landlord has given prior notice that it could be used. This is usually done by putting it in the tenancy agreement. The either notice was given as mentioned in Ground 1 above or the court is satisfied that it is just and equitable to dispense with the requirement of notice refers to the prior notice. If you read ground 1 Not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground or the court is of the opinion that it is just and equitable to dispense with the requirement of notice and (in either case) you see it's preferring to the prior notice.

This is not to be confused with the actual notice to be given when it is decided that the notice is to be used. When it comes to giving the actual notice then ground 2 is two months notice. It does not matter if the fixed term is longer. So unlike the S21 it can ask the tenant to leave before the end of the fixed term.

But all this only applies if the lender gave permission to let. If that didn't happen then the tenancy agreement is just ignored as it has no standing. Then the tenant may get a nasty shock as he has not rights to any notice at all.

http://forums.moneysavingexpert.com/showpost.html?p=12287967&postcount=14

franklee wrote: »

Stuff if they're expecting you to speak or not, make sure you do. That is make sure you tell them you are the tenant renting the property and the date your tenancy started. I would take along the tenancy agreement or all tenancy agreements if you've had more than one at the property.

Whether or not you will have any protection from your tenancy agreement depends on two things:

o Did the landlord have the lender's permission to let?

o Did your tenancy start before the mortgage was taken out? Given people tend to have fairly short deals these days of say 2 years fixed rate or so before remortgaging to get another deal it's possible you were there before the mortgage was taken out.

If the answer to both is no then I think you're pretty much stuffed.

If the answer to the first is yes and the second no then you will have some protection from the tenancy agreement but that will probably NOT mean you can stay till the end of the fixed term. It's more likely that you will be given notice under ground 2 The property is subject to a mortgage which was granted before the tenancy started and the lender, usually a bank or building society, wants to sell it, normally to pay off mortgage arrears.. In this case you will be given two months notice. This is a prior notice ground so the landlord should have notified you in writing that it may be used, usually by putting this in the tenancy agreement.

If the answer to the second is yes, then I think it's possible you *may* get to stay till the end of the fixed term.

Whichever turn up at court and make sure they know you are there and how long you have been a tenant of the property. Please come back and let us know how you get on. Meanwhile do start looking to arrange moving. Good luck.

http://forums.moneysavingexpert.com/showpost.html?p=5793169&postcount=5

franklee wrote: »

I've been put off answering as you are in Scotland and I only know about England.

In England stuff like that gets put in tenancy agreements. It's just setting out how notice can be served should the landlord want to serve notice in the future.

I think the lack of answers is due to it being Scotland, but there are some Scottish landlords here so hopefully one of them will answer. Maybe these will help:

http://scotland.shelter.org.uk/advice/advice-2745.cfm

http://events.edinburgh.gov.uk/internet/Housing/Private_tenants_and_home_owners/Letwise/CEC_frequently_asked_questions_-_short_assured_tenancies

The wording you have been given looks odd. As poppy10 has already pointed out ground 1 of part 1 schedule 2 of the Housing Act 1988 is relevant to English law not Scottish so it's confusing.

In England the type of wording I'd expect to see in the tenancy agreement is:

"The Landlord hereby gives notice that possession of the Premises may be recovered on Ground 1 in Part I of Schedule 2 to the Housing Act 1988."

Does that help?