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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10413
Experience:  Barrister 17 years experience
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An unregulated bridging company was granted possession of my

Customer Question

An unregulated bridging company was granted possession of my rental property and they then applied for an eviction date which was set for the 23 .08.16 I completed a court application to have the eviction order postponed as I was in the process of selling the property and had already exchanged contracts. The judge posponed the eviction date until the 19.09.16, but the bridging company went ahead and arranged go their own Baliffs to lock up the property. Are they allowed to do this?
Submitted: 7 months ago.
Category: Law
Expert:  Buachaill replied 7 months ago.

1. Dear Cindy, this is unlawful conduct on the part of the bridging company and you should call them to order. Essentially, you should go back in before the judge who postponed the eviction date until 19.09 and explain what happened. Get the judge to call the people from the bridging company to explain the reason for their behaviour. Your grounds for making the application before the judge should be that you want the eviction order discharged because of the unlawful behaviour of the bridging company. Essentially, a party who seeks an equitable order before a court, such as an eviction order, should come with clean hands before the court. here the bridging company have flouted the law and the eviction order deserves to be discharged. Explain also that you have a contract for sale depending on the situation.

Expert:  Buachaill replied 7 months ago.

2. Please Rate the answer as unless you Rate the answer your Expert will receive no payment for answering your question.

Customer: replied 7 months ago.
I found this out from their solicitors (SidneyMitchell) who said they were legally allowed to do this. They also marketed the property with an agent and have left a notice on the new front door stating that I have 14 days to remove my belongings. Do I have to go back to court to resolve this?
Customer: replied 7 months ago.
The original dept I took out was £150k but now they are saying I owe them £300k. They have also added on their solicitors fees, is there any way I can also challenge them on the high interest they are charging me?
Expert:  Buachaill replied 7 months ago.

3. You should re-enter the matter in court and get the issue of interest adjudicated. Penal rates of interest can be measured downwards by the court. Secondly, I am not sure you can rely upon the word of the solicitors for the bridging company in telling you they can do this. You should really get your own solicitor to read the papers and see what they are allowed to do. Certainly, in my experience, they would not be allowed to do this. Eviction only comes into force on the day of eviction. Not before. So, I would question whether they can in fact do this???

Customer: replied 7 months ago.
Are you based in london, is this a case that you could take on?
Expert:  Buachaill replied 7 months ago.

4. Dear Cindy, I live outside the UK, so I won't be able to handle your case for you. However, you should get yourself a solicitor to help you, as this will safeguard your interests.

Buachaill, Barrister
Category: Law
Satisfied Customers: 10413
Experience: Barrister 17 years experience
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Customer: replied 6 months ago.
When I went back to court the bridging company said they took possession based on their common law right. They said the property was vacant and that it had been abandoned.
Basically my tenant saw the eviction notice and called their solicitors firm which was on the notice and let them know that they were leaving the property, they then took possession after 16 hours.
Customer: replied 6 months ago.
Also where you say I should renter the matter in court and get the matter of interest adjudicated. Would this be attached to the same n244 eviction application or would that be a completely new claim via a different process?
Customer: replied 6 months ago.
Can you also advise what sort of solicitor/ barrister would deal with this type of issue?
Customer: replied 6 months ago.
I signed up as a member so I thought I could ask unlimited questions without having to pay any more. Is this not the case?
Expert:  Buachaill replied 6 months ago.

1. Dear Cindy, as a Member, you simply Accept the Proposed Offer and your Membership covers it. However, the need to Accept answers and to Rate Questions is necessary as this is the method whereby the website pays the Experts who work on it. So, this is separate to your paying your membership.

Expert:  Buachaill replied 6 months ago.

2. Dear Cindy, you would re-enter the matter of interest by way of Notice of Motion or Originating Summons in the same matter in which the order was obtained. There is no need to issue fresh proceedings. Simply use the existing proceedings in being.

Expert:  Buachaill replied 6 months ago.

3. Dear Cindy, I regret to say that as the bridging company got possession with the aid and consent of your tenant, their entry upon the premises would not have been unlawful. Your tenant effectively let your side down. You can argue the issue but your are unlikely to be successful where your tenant voluntarily surrendered possession to the bridging company.

Expert:  Buachaill replied 6 months ago.

4. The type of solicitor or barrister you need here is one experienced in real property law. Someone who has experienced in dealing with eviction and possession actions. You can find out from the Law Society who is such an experienced lawyer if you cannot find one in your locality.

Customer: replied 6 months ago.
Regarding the bridging company getting possession, they admitted that they broke into the premises, but that the tenant alerted them to the fact that they were vacating the premises.
My tenants never give them the key, they gave the key back to the agent the property was let through which happens to be the same agent they are using to try and sell the property.
Does this make a difference?In addition how does the sale of the property play out. In court I said I had a buyer and that contracts had been exchanged. That is a legally binding document. If they have possession how can the sale go ahead. Can I be sued by the buyer.
The buyer exchanged on a vacant property, wouldn't the property need to be brought back to its original state before completion could take place?
Is it worth me going to the high court to try and get this resolved?
Expert:  Buachaill replied 6 months ago.

5. Yes, it does make a difference that the bridging company broke into the premises. This is unlawful entry. From what you suggested, I believed that the tenant had assisted them in entering the premises. If there was forcible entry, then this was unlawful until the date given in the order.

Expert:  Buachaill replied 6 months ago.

6. There is no need to bring the premises back to its original state before a sale proceeds. There can simply be an abatement of the price to reflect the different state of the property. However, you cannot complete the sale if you don't have vacant possession. So, the sale will fall away.

Expert:  Buachaill replied 6 months ago.

7. However, you should go to court and seek to implement the sale. You are always going to get a better price selling the property yourself than the bridging company will get from a forced sale. Seek to retain vacant possession until the eviction date and sell the property in the meantime, completing the sale.

Customer: replied 6 months ago.
Going back to point 6. Can I insist they bring the property back to it original state as I need the equity to pay the dept so can't offer a discount. Also what do you mean the sale will fall away I have already exchanged contracts, can't they sue me for not completing on the exchange ?
Expert:  Buachaill replied 6 months ago.

8. I regret to say that as a matter of practicality, you won't get the bridging company to bring the property back to its original state. You will have to be happy with just getting the property with vacant possession in the state it is in and then making the best of the situation.

Expert:  Buachaill replied 6 months ago.

9. Secondly, yes, you can get sued if you won't deliver vacant possession to the purchaser. That is why I am suggesting you go back into court and re-establish vacant possession. If you won't have vacant possession, then you cannot complete, so the sale will get repudiated and you will get sued. That is what I mean by the sale falls away.

Customer: replied 6 months ago.
The bridging company are saying that they entered the premises by using their common law right and that it was empty when they carried out this right.
Have you heard of this in any previous cases?
Expert:  Buachaill replied 6 months ago.

10. Exercising a common law right of re-entry is not something a lender does. This would normally be carried out if the premises were rented, not when a security holder re-enters on a property. So, this is just a weak justification for what they did.

Customer: replied 6 months ago.
Just thought I would let you know that the judge agreed with them and they were able to keep possession.
Customer: replied 6 months ago.
I have another question. When this bridging company wrote to my mortgage company who has the first charge. The mortgage company said they were not allowed to put on the second charge.
Are they still allowed to take possession even if they were not allowed to put the charge on?
Expert:  Buachaill replied 6 months ago.

11. Dear Cindy, I am sad to hear that the judge agreed with the bridging company and that they were allowed to keep possession. However, please file your new request as a Fresh Question and mark it for my attention. This thread should be finished here.

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