Landlord Loses Right to Enforce Possession Order
Adrian Brazier of our Community Law Department recently won a case based on a legal technicality (published in the LAG Magazine, November 2011 edition).
A private landlord granted an assured shorthold tenancy for a fixed term of 12 months. During the period of the fixed term, substantial rent arrears accrued and the landlord issued possession proceedings and subsequently obtained a possession order on mandatory grounds. The tenant was given 14 days to vacate the property following an outright possession order being made. During the 14-day period, the landlord’s mortgage lender appointed a Law of Property receiver due to non-payment of the mortgage, and subsequently the receiver had “legal control” of the subject property. The landlord applied to the court for a warrant of possession and a notice of eviction was received by the tenant. Upon an application to dismiss the warrant it was successfully argued that at the time of the request for the warrant by the landlord, the landlord did not have “legal control” over the property, due to the appointment of the receiver under section 109 Law of Property Act 1925 and, as such, the warrant must, therefore, be defective and dismissed. The court agreed with that argument and the representations made on behalf of the tenant.