Following orders

The 53rd update to the Civil Procedure Rules 1998 introduces changes in a large number of areas, some more relevant than others. Almost all amendments came into force on 1 October 2010.

Perhaps the most significant amendment, addressing as it does the not infrequent problem of mortgage possession proceedings and unauthorised tenants, and in respect of which the court '“ until now '“ has had little or no power, relates to part 55 possession claims and CCR order 26 warrants of execution, delivery and possession. It gives effect to the Mortgage Repossessions (Protection of Tenants etc) Act 2010 (an Act whose aim is to protect unauthorised tenants) and the Dwelling Houses (Execution of Possession Orders by Mortgagees) Regulations 2010 '“ both of which also came into effect on 1 October.

Where a mortgagee under a mortgage of land which consists of or includes a dwelling house has obtained an order for possession of the mortgaged property, the order may be executed only if the mortgagee gives 14 days' notice at the property of its intention to apply to the court for a warrant for possession. Notice, which must be in the form set out in the schedule to the regulations, may be given by first class or registered post in an envelope addressed to the tenant by name or '“ more likely as the tenant is unauthorised '“ to 'the tenant or occupier'.

Alternatively, the notice may be left at the property in an envelope addressed as before or affixed to and displayed in a prominent place where its contents can be read by a person entering the property. Or it may be personally served upon a person who appears to be in residence in the building. The 14 days start running from the date notice is given.

When making an order for delivery of possession, the court may, on the application of the tenant, postpone the date for delivery of possession for no more than two months. If not done at that stage '“ if an order has been made but not executed '“ the court may (again on the application of the tenant) stay or suspend execution of the order for no more than two months. However, this will only be done if not done at the time the possession order was made, and if the tenant has asked the mortgagee to give an undertaking in writing not to enforce the order for two months and such an undertaking has not been given.

The court will then look at the circumstances of the tenant, and, if there is an outstanding breach by the tenant of a term of the unauthorised tenancy, the nature of that breach and whether the tenant might reasonably be expected to have avoided breaching the term or to have remedied the breach.

In any case, any postponement, stay or suspension may be made conditional on the making of payments to the mortgagee (not the mortgagor landlord) in respect of the tenant's occupation of the property.

The message for mortgagees is clear. Certain formalities must now be followed before executing a possession order. And, if there is an innocent tenant who has kept to the terms of his tenancy, the mortgagee should give the undertaking sought by the tenant '“ if it wants to avoid the displeasure of the court!