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Ash
Ash, Solicitor
Category: Law
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Experience:  Solicitor with 5+ years experience
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I have another buy to let property. I moved in to live in this

Customer Question

I have another buy to let property. I moved in to live in this property a year ago so that my now 8 year old child could qualify for a place in the special needs school in that borough. She has since been admitted into the school because we now qualify by virtue of residing in the borough.
My lenders have said that by residing in the property I am in breach of the buy to let mortgage terms. They have offered me to accept a voluntary suspended possession order in exchange for them to give me up to 31 December 2016 to remedy the situation. The remedy would be to remortgage the property, and I believe there would be the option to return the property to rental. The option of selling it is not on the cards for me. They say that if I don't accept a voluntary possession order they would continue the court possession claim which they have commenced already.
My questions are:
(1) Does the fact that the execution of a voluntary suspended possession order is suspended for a period of time make any difference to the fact that if entered into, it constitutes a court order exactly as does an involuntary outright court possession order made following a hearing?
(2) I ask this because my lender is expecting me to remortgage the property as an option of remedy whilst offering me this voluntary suspended possession order. However as far as I see, a possession order in one’s records is a major impediment to obtaining any credit at all especially mortgages.
(2.1.) If I enter into the voluntary suspended possession order, does it not appear in the public records such as the court records (like county court debt judgments do) and in credit files (Experian etc)?
(2.2.) If it does not appear in those public records, is that because it is a suspended order which would only go into the public records (and also become executable) if the conditions of the suspension is not met? That is to say so long as I meet the suspended order terms, the order will not feature in public court judgement records, credit files etc hence I shall suffer no such damage as in the case of an outright possession order. Therefore it would be accurate to answer 'No' to a mortgage application question "Have you had a possession order made against you" at any time after the order I made except of course if I fail to meet them terms of the suspension and until that stage.
(2.3.) If on the contrary it does appear in those public records immediately the suspended order is made, then I would be damaged because I shall from the date of the suspended order have to answer ‘yes’ to any lender’s question such as ‘have you had a possession order made against you’, which answer will hinder my ability to obtain a mortgage and other loans.
Please advice, and have I misunderstood the matter of voluntary suspended possession order?
Submitted: 11 months ago.
Category: Law
Expert:  Ash replied 11 months ago.
Hello my name is ***** ***** I will help you with this.On what basis was the possession order made and terms of suspension please?Alex
Customer: replied 11 months ago.

The possession order has not been made. A first hearing has been held and a further will be held in July. They are asking for possession on the grounds that I breached a mortgage term which states that I am not live in the property.

I am trying to stop the litigation by reaching an agreement with them. They then offered that I accept a suspended possession order.

Expert:  Ash replied 11 months ago.
Suspended on the basis of you don't live in the property?
Customer: replied 11 months ago.

Suspended on the basis that I redeem the mortgage by 31 December 2016 which I can accomplish with a remortgage. But the problem is the effect on my ability to obtain a remortgage if I now accept a suspended possession order.

Expert:  Ash replied 11 months ago.
(1) Does the fact that the execution of a voluntary suspended possession order is suspended for a period of time make any difference to the fact that if entered into, it constitutes a court order exactly as does an involuntary outright court possession order made following a hearing? - No, because they have not got a County Court money Judgment, so it makes no difference whatsoever and wont be recorded on your credit files.(2) I ask this because my lender is expecting me to remortgage the property as an option of remedy whilst offering me this voluntary suspended possession order. However as far as I see, a possession order in one’s records is a major impediment to obtaining any credit at all especially mortgages - It wont make any difference because it wont affect you getting credit.(2.1.) If I enter into the voluntary suspended possession order, does it not appear in the public records such as the court records (like county court debt judgments do) and in credit files (Experian etc)? - No - see above.(2.2.) If it does not appear in those public records, is that because it is a suspended order which would only go into the public records (and also become executable) if the conditions of the suspension is not met? That is to say so long as I meet the suspended order terms, the order will not feature in public court judgement records, credit files etc hence I shall suffer no such damage as in the case of an outright possession order. Therefore it would be accurate to answer 'No' to a mortgage application question "Have you had a possession order made against you" at any time after the order I made except of course if I fail to meet them terms of the suspension and until that stage - it would ONLY be recorded if it was a money Judgment against you. Therefore if its suspended the order does NOT come into effect and they dont appear to be asking for money Judgment.(2.3.) If on the contrary it does appear in those public records immediately the suspended order is made, then I would be damaged because I shall from the date of the suspended order have to answer ‘yes’ to any lender’s question such as ‘have you had a possession order made against you’, which answer will hinder my ability to obtain a mortgage and other loans - it does NOT appear, see above. Its suspended so does NOT appear.Can I clarify anything for you about this today please?Alex
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
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Customer: replied 11 months ago.

Thank you Alex.

Expert:  Ash replied 11 months ago.
Good luck. Alex

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