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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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If a mortgagee is in possession can the courts do anything

Resolved Question:

If a mortgagee is in possession can the courts do anything to stop a repossession?

This is a buy to let mortgage
Submitted: 2 years ago.
Category: Law
Expert:  tdlawyer replied 2 years ago.

tdlawyer :

Hello, welcome to the website. My name isXXXXX can assist you with this.

Customer:

Can the repossession be halted by courts?

tdlawyer :

Once the mortgagee has taken possession, you're going to find it hard to stop it proceeding by Court Order I'm afraid.

Customer:

Basically the lender put LPA receiver in. LPA receiver destroyed it so lender has cancelled the appointment and seized the property

tdlawyer :

This is because the Courts take the view that there has to be some finality on things, and once repossession has been taken, the court cannot go back on the possession order granted.

tdlawyer :

Commercial property then?

Customer:

Where does the possession order come from? as o my knowledge there has been none

Customer:

Its residential buy to let

tdlawyer :

Okay. You were not in possession of the premises?

Customer:

I gave the receiver the keys as I had to to avoid bing prosecuted for trespass

Customer:

being

Customer:

the receiver though hasn't acted in good faith. Can the courts look at that or is that a seperate matter

tdlawyer :

Okay, if you gave them the keys, they will have "peaceably re-entered" and a court order would not have been necessary. This assumes there was no tenant in the property at the time.

Customer:

The receiver had agreement to increase the rent and didnt. They were to rent one of the properties out and took 8 months in an area that it should have been 2-3 weeks. Teh LPA had major conflicts of interests as well as they were part of an organisation owning the letting agents

Customer:

The organisation also owned the managing agents

tdlawyer :

So your issue is how the LPA receiver discharged his duties?

Customer:

Yes

Customer:

Can the courts get involved in that or is that seperate to the repossession?

tdlawyer :

Okay. This might be separate to the possession. The LPA receiver is your agent by virtue of s.109 of the Law of Property Act 1925. Hence, he is answerable for his failings to you. You would have the right to sue him for anything he shouldn't have done if that caused you loss.

tdlawyer :

Taking possession can be effected usually under the mortgage deed quite separately to the LPA receiver being appointed.

tdlawyer :

However, you need to check your mortgage deed, because this might change the position as to who the LPA receiver is liable to - they might have made him their agent, which means they could be liable as lender appointing him.

Customer:

Do when LPA is cancelled are they legally obliged to return the keys to lender?

tdlawyer :

You might find this insightful" http://www.michelmores.com/lpa-receivers-their-time-has-come-again--publication.htm

tdlawyer :

This depends on whose behalf the LPA receiver is acting for. Normally, it would be his obligation to return the keys to you -as your agent under s.106. however, if the mortgage deed says otherwise, then he would be entitled to follow that. The mortgage deed might contain a power to require the LPA receiver to deliver the keys to the lender. I expect it would.

Customer:

I need to see the mortgage deed

tdlawyer :

You do, yes.

Customer:

And if I was to sue the LPA receiver can I only sue for actual losses or what I have lost as a result of their malpractise?

tdlawyer :

You should be able to sue for reasonably foreseeable losses. So not necessarily only those immediately direct.

tdlawyer :

Just so long as they're not too remote (i.e. unthinkable etc...)

Customer:

okay. Many thanks for your help.

tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience: 11 years experience of general practice.
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