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Mortgages.

The editor of this section of the site is Nigel Clayton of Kings Chambers, Leeds and Manchester. Nigel also maintains the specialist website dealing with mortgages at www.legalmortgage.co.uk



There are four cases this month:
  • Following default in compliance with a suspended order for possession, the proper approach was to apply for permission to issue a warrant.
  • The ECHR held that an order for sale of a property by a lender for an undervalue was not in breach of Human Rights.
  • The court refused to allow an adjourned claim to be restored after six years.
  • The lender being entitled to unpaid vendor’s lien, the court made an order for sale of the property.

Warrant of possession

Court’s powers to validate

Cardiff County Council v Lee (Flowers)
[2016] EWCA Civ 1034

For the case summary see Property litigation. We include here a commentary on the case in so far as it affects mortgages.

Comment

This is a public sector residential landlord and tenant possession case which is having important consequences in mortgage possession cases because, in terms, the Court of Appeal has condemned the use of a Form N325 Request for Warrant of Possession of Land in cases involving breaches of suspended orders for possession, and mortgage lenders are now reporting that courts are refusing to issue N325s even in simple cases of breach of suspended orders on the usual terms as to non-payment of instalments.

There is probably little doubt that the Court of Appeal did not intend to extend the requirement for an application for permission to issue a warrant to straightforward cases of non-payment under suspended orders (a) because in terms, the judgment does not deal with this, and (b) because the Court of Appeal did not consider the scope of the current Form N325 which contains a specific certificate that:

“the defendant has not vacated the land as ordered (*and that the whole or part of any instalments due under the judgment or order have not been paid) (and that the balance now due is as shown)
*de ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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