Unauthorised tenancy - options?

gw23

My adult son (vulnerable, safeguarded) has lived in the same privately rented flat for 14 years. The flat was sourced with the help of Mencap as a support agent, but through the same avenues (letting agents, letting websites) as anyone would use.

Cutting a very long story short - the owner of the property, who we had never heard of as he used some kind of proxy landlord - defaulted on the mortgage and the property has now been repossessed by the lender (Halifax). My son's Father and my son attended the hearing and my son was granted 56 days extension. But he had never been served a Section 21. The letting agent appeared the Monday after the hearing with an invalid Section 21 (backdated by 2 months and none of the statutory accompanying documents). The possession order took effect on March 25th. Since that time my son has had no communication from the Halifax and is still in the flat. No valid Section 21 was served prior to May 1st and no Notice under Section 8 has been received since the law changed on May 1. He has been accepted by the homelessness section of the Local Authority but finding him something suitable is an absolute nightmare.

At the repossession hearing, my son's Father spoke to the letting agent about it being an unauthorised tenancy and the agent's response was that "back in those days" people (I'm not sure what people) weren't so worried about unauthorised tenancies. I think they probably were, more likely the agent himself was not so worried.

My question is - do we have some kind of redress against the agent? We are keeping our heads down right now, as all the time no Notice is being served, it's buying us time to find new accommodation so we don't want to be poking any bears, but I'd just like to be armed with the correct information if we decide we should take this further. My son's anxiety levels are sky high and this is really affecting his mental wellbeing.

user1977

Not sure the current position would be much different if it was an authorised tenancy (I presume by "unauthorised" you mean it was created in breach of the mortgage conditions?). The mortgage lender can still repossess.

silvercar

You need to find out (from the Halifax?) whether this was a BTL mortgage and/or the landlord had consent to let or alternatively the property was let on a residential mortgage without permission from the lender. One way of getting a clue would be to download the deeds from the Land Registry. If that gives a different address for the owner to the property then it is likely it was a 'proper' BTL mortgage. If the owner address is the property address, then the landlord was an owner occupier - though they may have had consent to let.

If the Halifax gave consent to let or it was a BTL mortgage then they are now the landlord and that comes with all the obligations. They can serve notice to end the tenancy if they wish to sell, but must follow the (new) rules.

If the mortgage was residential with no consent to let, then the tenancy is unauthorised and your son's rights are more limited. The law gives the tenant the right to remain for 2 months under the Mortgage Repossessions (Protection of Tenants) Act 2010. Further information on this link: https://england.shelter.org.uk/professional_resources/legal/renting/change_of_landlord/when_a_landlord_is_repossessed#reference-10

Basically it is 2 months notice,

"A tenant in this situation can ask the court to court to delay the date of possession for up to two months. They can ask the court to do this at the possession hearing. If this was not raised at the hearing they may ask the lender for an undertaking not to enforce the possession order for a further two months. If the lender refuses, the tenant may apply to have the possession order postponed.

The court will consider the tenant's circumstances when deciding whether to postpone. The court may consider whether they have complied with their tenancy agreement, for example by keeping up with rent payments. The court can order the tenant to pay their rent to the mortgage lender for the period of the extension."

From what you have posted, if you are correct that the tenancy is unauthorised (I would ask for proof of this, as if it was authorised, your son has far more rights) then the lender has gone through the correct court process and the clock is ticking. Your comment that no notice has been served is incorrect if the court has ruled that your son has 56 days.

I would imagine that the Halifax repossession team have taken over from the agent and if your son doesn't move out after 56 days then they will enforce repossession. I don't know how long it will take them to send bailiffs round, but that would be their next step.

The only thing I find slightly odd is that the court granted 56 days rather than 2 months.

I don't know if you could take action against the letting agent. Arguably they should have ensured there was consent to let, but it maybe that the landlord did take out consent to let and it has now expired, you have no way of knowing. Taking action against the letting agent would mean complaining first to the letting agent themselves and then to whichever body the letting agent belongs to. Then eventually to the ombudsman. That will take time and may not get you anywhere. In the meantime, your priority should be finding a new home for your son. 56 days is May 20, 2 months is May 25. You really don't have much time. Hopefully you have made the local authority aware of these deadlines and they are working to help your son find somewhere.

user1977

https://forums.moneysavingexpert.com/discussion/comment/81999526#Comment_81999526

They would still need to market the property, and to get the best price they probably need him to move out first.

martindow

Could Mencap have a role in finding new accommodation for your son? They were involved initially after all. I would concentrate on this first, as there is no rush to consider whether to take action against the agent or not.

gw23

https://forums.moneysavingexpert.com/discussion/comment/81999354#Comment_81999354

https://forums.moneysavingexpert.com/discussion/comment/81999549#Comment_81999549

Unfortunately his local Mencap no longer have the resources to help with housing any issues now.

silvercar

Reading your post again, it seems that there are 2 actions that are not connected. Firstly there is the Halifax gaining repossession through the courts and giving your son 56 days to vacate. How was this communicated to your son? Have Halifax confirmed that the tenancy was unauthorised?

Secondly, there is the letting agent serving a section 21, which may or may not be valid.

I would think that the Halifax holds the strings here. They are effective landlords in possession of the property. They will go through the necessary steps to evict your son and sell the property. At least you will have more confidence they will behave in a legal way.

In the meantime, is there a social worker involved? You really need to come up with a plan for your son’s next home, be it a temporary move or permanent. Consider whether you or his father could help until a more permanent solution is found. I imagine his mental health will be better living with a parent than in a homeless hostel or whatever else the council will suggest as a temporary measure.

gw23

Thanks for all your comments. The tenancy is unauthoirised - confirmed.

I have now had sight of 1 - the repossession order, but even more bizzarely 2 - a letter sent to the owner from the Halifax dated April 26 2026 stating that part of the mortgage has been paid off and detailing the amount to be paid by DD as from May 25th.

The whole situation is quite ridiculous as it seems a mortgage which actually came to full term in December 2024 (it took over a year for the Halifax to start proceedings and for the case to get to court) has now been resurrected overriding the possession order.

None of it makes sense and I shall be contacting the Halifax legal representatives on Monday.

As far as my son's wellbeing is concerned, I thank you for your comments, but he is almost 50 years old and we have battled with this his health problems since he was 3 years old so there is nothing we don't know about available support etc.

silvercar

It isn’t that rare for a mortgage to have 2 parts, finishing at different times. It depends on the history of the mortgages. It also wouldn’t be unreasonable for the lender to give some leeway on paying off one part if the other part is still ongoing. Lenders have a duty of care and will delay repossession if they can see a way of doing so.

So now it appears that the situation is that the landlord has cleared one part of the mortgage leaving a new repayment plan for the other. This may indeed mean that the lender has decided not to repossess, but may leave that option open to move quickly in the future if the landlord falls behind. So it may be that Halifax won’t seek repossession for now.

I would push the Halifax on whether the mortgage is still unauthorised. Arguably they are now well aware that the property is tenanted, so either they give permission for this or they don’t. If they don’t then they should be seeking possession for a breach of mortgage terms. If they don’t want to do that while the mortgage is being paid and they know the place is tenanted then they are tacitly agreeing to the tenancy and should authorise it properly. It seems like they are playing a sharp game here by (1) getting a repo order but not enforcing it, but leaving it lying on the table so to speak and (2) claiming the mortgage in unauthorised for a tenancy but actually acknowledging that the tenancy exists.

gw23

thank you silvercar - that's really useful information and makes me feel better armed for when I speak to them on Monday.

I didn't know that a lender could choose not to enforce a possession order so if this is what has happened then things are starting to make a bit more sense.