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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25440
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We are tenants and have been leaving in same flat for 13 years.

Resolved Question:

We are tenants and have been leaving in same flat for 13 years. We are regularly paying our landlord. First 6 months contract between us has expired long time ago so we have no contract which perhaps means no rights. Now it seems our landlord cannot repay his mortgage and his bank is now sending Excel counselling company to understand the situation. How long before we get evicted, can we offer to buy the property? Thanks.
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Do you know if the mortgage is a buy to let mortgage or a residential mortgage (i.e. the landlord is renting without the lenders permission) please?

Customer:

We started renting in May 2001 then I think a year later the landlord asked for a valuation of the property because he wanted to re-mortgage. I think at that time he moved himself from a property to a new one. I am not sure that is answering your question. I am not sure the bank knows we are in the property because letters from the bank arrive to us with the name of the landlord and we just forward him.

Joshua :

Thanks

Joshua :

Thank you. I suspect as you say this means that the mortgage the landlord has will be a residential mortgage which does not include the right to rent the property out. This is largely the landlord's problem rather than yours however, you do have a number of rights in this type of situation which with your permission I will outline below:

Joshua :

Based upon what you say, your tenancy will now be something known as a statutory periodic tenancy which is simply a tenancy which runs month-to-month.

Customer:

yes

Joshua :

Under a statutory periodic tenancy, he you are required to give one clear months notice to the landlord in order to leave the tenancy and the landlord is required to give you to clear months notice to end the tenancy. In both cases, the notice can only come to an end on the day before rent is payable under the tenancy agreement.

Customer:

right

Joshua :

if the landlord wishes to give you notice to leave, he must do so using something known as a section 21(4)(a) notice which must comply with the above requirements in terms of dates. if it does not, the notice will be invalid and you can ignore the same.

Joshua :

You do not have to give a specific form of notice. Your notice only needs to be in writing, providing it gives the landlord one claimant's notice and expires the day before rent is payable

Joshua :

if the landlord does not serve you notice himself, then the any other way to can be evicted is by the lender under its power of sale through repossession process. If this occurs, you have a number of rights as against the lender as follows:

Joshua :

The lender must send a notice to the property before the repossession hearing informing ‘the tenant or occupier’ (ie everyone living there) of the date of the repossession hearing. They have to do this within five days of the hearing date being confirmed by the court. Never assume that post addressed to 'the tenant or occupier' is junk mail in these circumstances.

They must then send a second notice to the property by first class post, recorded delivery or by hand, to inform you that the lender is going to ask the bailiffs to carry out an eviction. This will only happen if the court has already made a possession order. A special form must be used for this notice. Bailiffs cannot evict you for at least 14 days after the lender has given this notice.

Joshua :

You can ask for the repossession to be delayed for up to two months at any one of these points in the process at the repossession hearing, after the court has made an order for possession or at the warrant stage.

Customer:

Sorry to interrupt, can I try stopping the process by by-passing the landlord and notifying my willing to buy the property?

Joshua :

Are you in a position to make an offer on the property?

Customer:

I have got money in the bank - say between 1/3 and 1/2 of the property value

Joshua :

thank you. You can of course make this offer to the landlord however, from a strategic point of view, you are likely to obtain a better price for the property if you wait for it to be repossessed by the lender. The landlord will almost certainly want to try to obtain market value as per the private property market where is repossessed properties will typically sell for sometimes considerably cheaper prices.

Joshua :

you will therefore need to weigh up your pros and cons. If you were to make an offer to the landlord now, if he accepts your offer which of course you could still negotiate upon, it may allow you to remain in the property and disturbed. If you decide to wait for the property to be repossessed by the lender the above strategic reasons, one possibility is that you would be required to leave the property as lenders are required to attempt to get the best price for the property by marketing it for which they may require vacant possession though you may be able to negotiate to remain in the property during this process

Customer:

Thank you. From the landlord point of view, is it his interest to delay as much as possible or is he going to be given some penalties for not repaying his mortgage or is the penalty just to loose the property?

Joshua :

typically the longer the landlord fails to pay his mortgage for, the more he will incur in terms of interest and legal costs on the part of the lender and said delaying is unlikely to be beneficial for the landlord financially

Joshua :

In addition, as we have discussed above, properties that are repossessed typically sell for less and sometimes considerably less than they do on the private property market and accordingly, this may give you a basis on which to negotiate a keen price with the landlord

Joshua :

He is likely to be better off by agreeing a price which may be quite heavily discounted with you rather than allowing the property to be repossessed but as you will be well aware, there are no rules when it comes to negotiating

Customer:

Thank you it seems the landlord is loosing rights quickly on this property. From that respect is he the right person to talk to, would the bank stop the process if landlord says I have found a buyer?

Joshua :

Yes the bank would typically suspend the Repossession process if the landlord can demonstrate there is a genuine buyer who was able to proceed quickly. Remember that also even where the bank is unwilling to co-operate as you can sometimes find is the case depending upon the history of the account, you as the tenant can apply for a suspension of the repossession process yourself if necessary

Customer:

But can I apply for a suspension of repossession that has not happen yet?

Joshua :

no that is not possible but equally it is not required as one does not need to apply to suspend a process that has not yet begun. You can apply for a suspension at any stage after the repossession process has begun

Joshua :

as above, the bank is required to serve notice upon you as the occupier once it begins the repossession process and during the repossession process therefore you should have good notice of any upcoming eviction

Customer:

Can you just remind me how to apply for a suspension (I will receive a letter and then I ask the sender for a suspension on the basis of the rights you wrote above?)

Joshua :

Yes of course. just to recap, the bank is required to give you notice no later than five days prior to the repossession hearing and again 14 days before any warrant takes effect - the warrant is what is required in order for bailiffs to attend to remove any occupants of a property

Joshua :

in order to request a suspension, you can either attend the possession hearing and make a request in person. You have a right to attend as occupying tenant. Alternatively, you can request a suspension at any time by completing form N244

Joshua :

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=484

Joshua :

in either case, you will need to give reasons for your request to suspend the repossession which will principally be that you require time in order to find alternative accommodation and that you have paid your rent and will continue to offer to pay rent on time.

Customer:

Thank you, XXXXX XXXXX chance or no value for me to try contacting directly the bank or Excel couselling services?

Joshua :

there is little to be lost by speaking to the bank however my experience of lenders exercising repossession powers is that they will not accept offers to purchase the property directly but will refer you to their appointed agent; the reason for this is because they will say that they have to try to obtain good value for the property and therefore have to be seen to offer it on the open market. However, that is not to say that you cannot in principle come to an arrangement and therefore there is little to be lost in open lines of communication

Joshua :

is there anything above I can clarify for you?

Customer:

Thanks for that, just question in regards XXXXX XXXXX last answer, from a code of conduct point of view, would I be right contacting the bank directly or is it something not well seen (because by passing the landlord)?

Joshua :

you are not bound by any code of conduct so can proceed entirely as you wish however it is worth remembering that until such time as the lender has obtained a possession order from the court, the landlord remains the owner of the property and the bank has no right to agree to any sale formally however, as above, there is rarely much to be lost in opening a line of communication. Obviously tactically, you do not wish to present yourself as being too keen to purchase the property from anyone as this will generally drive up the price you are asked to pay

Joshua :

An approach of "You can take or leave the property but may be prepared to consider an offer if the price is right" is likely to result in a better price fro whoever you potentially purchase it. But this is pure negotiating tactics

Joshua :

is there anything else I can help you with?

Customer:

Thank you I think we have reviewed the question. Obviously we not far from eviction.

Joshua :

a pleasure. If I can assist any further as the situation develops, please do not hesitate to revert to me

Customer:

Thank you.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Customer:

Thanks I will take a moment and rate the service. Have a nice evening Joshua.

Joshua :

many thanks. And to you

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