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Guidance to the Mortgage Repossessions (Protection

of Tenants etc) Act 2010

www.communities.gov.uk

Guidance to the Mortgage Repossessions

(Protection of Tenants etc) Act 2010

October 2010

Department for Communities and Local Government

Eland House

Bressenden Place

London

SW1E 5DU

Telephone: 030 3444 0000

Website: www.communities.gov.uk

Crown Copyright, 2010

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October 2010

ISBN: 978 1 4098 2574 6

Disclaimer

This guidance does not give an authoritative interpretation of the law; only the

courts can do that. Nor does it cover all circumstances that tenants may be

experiencing. Tenants who are in doubt about their legal rights or obligations

should seek information from a reputable advice agency, such as Shelter, or the

Citizens Advice Bureau, or seek advice from a solicitor or housing law centre. Help

with all or part of the cost of legal advice may be available under the Legal Aid

scheme, depending on individual personal circumstances.

Contents

1. What is this guidance about? 5

2. Who should read this guidance? 6

3. Policy background 6

4. The legislation explained 7

5. Commencing possession proceedings 8

6. The possession hearing 9

7. After the possession hearing 13

8. The application hearing 15

9. Related and relevant legislation 16

10. Questions and answers 17

Annex A: Mortgage Repossessions (Protection of Tenants etc) Act 2010 20

Annex B: The Dwelling Houses (Execution of Possession Orders by

Mortgagees) Regulations 2010 24

Annex C: Changes to the Civil Procedure Rules 29

Annex D: Relevant Court forms 30

• Form N5: Claim for Possession of Property

• Form N11M: Defence Claim form for Mortgaged Residential

Premises

• Form N325: Warrant for Possession of Land

• Form N244: Application Notice

Annex E: Lenders’ step-by-step checklist 43

Annex F: Contact details (implementation partners and advice agencies) 44

1. What is this guidance about?

1.1 Information on rights/responsibilities under the Act

This guidance document aims to inform lenders, landlords and tenants of their

rights and responsibilities under the Mortgage Repossessions (Protection of

Tenants etc) Act 2010 (Annex A), as well as providing an explanation of how it is

envisaged that the legislation will operate. The Act and its supporting regulations

come into effect on 1

October 2010 within England and Wales.

1.2 The Mortgage Possessions (Protection of Tenants etc) Act 2010

The Act provides unauthorised tenants with the right to request a delay to eviction

of up to two months if their landlord (the mortgage-holder) falls into arrears with

their mortgage payments and the lender (the mortgagee) commences possession

proceedings. This puts an unauthorised tenant on a level playing field with

‘authorised’ tenants holding an assured shorthold tenancy. It is not intended to

grant ‘unauthorised’ tenants any greater rights than they would have if they were

‘authorised’ tenants.

1.3 Meaning of ‘unauthorised tenants’/‘unauthorised tenancy’

The term ‘unauthorised tenants’ refers to those tenants who are renting a

mortgaged residential property from a landlord who has let the property without the

knowledge or consent of the lender, and in contravention of the mortgage

agreement. Such a tenancy is known as an ‘unauthorised tenancy’ because the

tenancy agreement is unenforceable against the lender.

When letting a mortgaged property on which there is a residential mortgage, the

borrower should obtain consent from their lender. Tenants whose landlord has

such consent are ‘authorised’ tenants and this legislation does not apply to them

as they have comparable existing rights.

2. Who should read this guidance?

2.1 Who should read this guidance?

This guidance document should be read by:

• unauthorised tenants, who find that the property they are renting is subject

to possession proceedings brought by their landlord’s lender

• lenders

• landlords and landlord bodies

• housing departments of local authorities

• legal professionals and solicitors acting for lenders or tenants

• solicitors specialising in housing law for tenants and landlords and

• advice bodies

Given the audience, the guidance is necessarily broad in scope and not all parts of

it will be relevant to all parties.

2.2 Extent of legislation and guidance

This guidance and the legislation do not apply to:

• tenants in any form of social housing

• authorised tenants of landlords who hold buy-to-let mortgages with consent

to let as part of their mortgage terms and conditions

• authorised tenants whose landlord’s lender has given consent to let by

another means

• owner-occupiers

• lodgers or other occupiers under licence

3. Policy background

3.1 Rationale for legislative intervention

Prior to the Mortgage Repossessions (Protection of Tenants etc) Act 2010,

unauthorised tenants could be evicted from their homes at very short notice

because their landlord had fallen into arrears with their mortgage payments and

the lender had started proceedings for possession of the property. The tenant had

no legal rights to be heard in the proceedings as the tenant was ‘unauthorised’ and

had no rights against the lender as the tenancy was unauthorised.

The issue was brought to the Government’s attention by the housing charity sector.

The sector provided many examples of eviction at short notice and the heightened

distress and disruption it caused to a variety of households. Due to the hidden

nature of the problem, it is not possible to give an accurate picture of how many

tenants are affected. However the impact assessment supporting the legislation

estimates the numbers to be 5,000 – 20,000 in a ten-year time scale between 2010

and 2020. Alternatives to legislation, such as a voluntary code of conduct were

considered with partners from both the advice sector and lenders, however the

shared conclusion was that legislation was the only way to address the gap in legal

protection for tenants.

The purpose of the Act is to ensure that tenants of landlords whose properties are

repossessed by their lenders do not suffer eviction at short notice. This has been

achieved by giving tenants a statutory right to request that the date that the lender

may take possession is delayed by up to two months to give the tenant time to find

an alternative place to live once they are aware that a possession is likely. It does

not prevent the possession but delays it. The legislation has been introduced to

provide protection and give unauthorised tenants the same rights of notice as

authorised tenants on an assured shorthold tenancy while causing minimum delay

to lenders and borrowers.

In order to make these new rights effective, the tenant must have notice that a

lender has, or intends to, obtain a warrant for possession. The Act requires the

lender to now issue a notice (Notice of Execution of Possession Order) to all

properties where it plans to enforce a possession order via a warrant.

4. The legislation explained

4.1 What does the Act achieve?

The Act tackles the problem of tenants being evicted at short notice when their

home is repossessed by their landlord's lender. The Act protects those tenants

whose tenancies are not binding on their landlord’s lender, (defined by the Act as

‘unauthorised tenants’) by giving them the opportunity to request a delay of the

date of possession of up to two months. The unauthorised tenant may make a

request to the lender and if the lender refuses or does not respond to the request,

the tenant can make an application to the court. Applications can be made at the

initial possession hearing, or, if that opportunity is missed, when the lender seeks

to enforce a possession order. Occupiers are already notified of possession

proceedings and the new legislation requires the lender to notify the occupier if,

and when, they intend to enforce the possession by seeking a warrant of

possession.

The Act:

• gives unauthorised tenants the right to be heard at a possession hearing

• gives the court the power to delay the date for delivery of possession for up

to two months, on application by the tenant

• requires the lender to give notice, at the property, of the proposed

enforcement of the possession order. (This requirement will apply to all

residential properties subject to possessions proceedings, it is not restricted

to 'unauthorised' tenancies)

• gives lenders the right to dispute tenancy claims

Lender Repossession of residential property: protection of tenants consultation: Department for

Communities and Local Government, August 2009

• gives lenders the right to receive income from the tenant during the

intervening period before possession

• gives tenants the right to request that the lender delay the possession for up

to two months, with a right to apply to the court upon refusal

• gives courts the power to delay an order for enforcement of possession (i.e.

to stay or suspend the execution of a possession order) for up to two

months, on application by the tenant (provided that the tenant has asked the

lender to undertake not to enforce the order for two months and such

undertaking has not been given)

5. Commencing possession proceedings

5.1 When a lender commences possession proceedings

Under the terms of the mortgage agreement, lenders have the right to start

possession proceedings if the landlord/mortgage-holder does not make the

required mortgage payments. Although two months of arrears is legally sufficient

for a lender to take action, most lenders will usually try to come to an arrangement

to clear the arrears over a period of time and thus avoid taking possession

proceedings. Lenders have to operate under rules set down by the Financial

Services Authority contained within Mortgage Conduct of Business Rules, which

state how forbearance should be managed.

However, if the lender continues to have concerns about the level of arrears the

landlord/mortgage-holder is accruing, or is not satisfied with the landlord/mortgage-

holder’s proposals to repay them, they may take possession proceedings in the

local county court.

To initiate possession proceedings, the lender will make a claim for possession of

property to the county court. This involves the completion of a claim form. (N5:

Claim for Possession of Property.) The landlord/mortgage-holder will get a copy of

this, along with a date for the hearing. The claim form will include a description of

the property and a description of the state of the landlord/mortgage-holder’s

mortgage account. It will also state the details of the lender's attempts to recover

the arrears and what the lender currently requires from the proceedings – which

might be possession of the property and repayment of all mortgage arrears.

The landlord/mortgage-holder will also receive a defence form N11M. (Defence

form mortgaged residential premises), which should be completed and returned to

the court within 14 days. This form gives the landlord/mortgage-holder the

opportunity to explain the circumstances of why they are in arrears, and how they

plan to repay the arrears.

5.2 Upon obtaining a hearing date

(a) Tenant/Occupier Notification (‘intention to repossess property’)

Within five days of receiving notification from the court of the date of the hearing,

the Civil Procedure Rules

require the lender to send a notice to the property,

addressed to ‘the tenant or the occupier’. This notice must:

• state that a possession claim for the property has started

• show the name and address of the claimant, the defendant and the court

which issued the claim form and

• give details of the hearing

(b) Local Authority Notification

The Civil Procedure Rules also state that the lender must also send a notice to the

housing department of the local authority within which the property is located

explaining that a possession claim has started relating to a mortgaged residential

property. The notice should be addressed to the Head of Housing (Homelessness)

Service. This notice must contain the information as above, and must state the full

address of the property.

The provision covers all possession claims relating to mortgaged residential

property, including buy-to-let.

6. The possession hearing

6.1 What happens at a possession hearing?

Possession hearings are usually heard by a district judge and are in private. Until

commencement of the Act, the only people with a right to be heard were the lender

(usually represented by their solicitor) and the landlord/mortgage-holder (and/or

their legal representative). The possession hearing gives the landlord/mortgage-

holder another opportunity to explain why there was a failure to pay the mortgage

and to state how they plan to repay the mortgage, including any arrears, and the

terms under which these payments will be made. If the lender agrees to these

terms, the court will make an order accordingly. This is a suspended possession

order. An alternative to repayment is to give the mortgage-holder time to sell the

property – in order to pay off the mortgage debt and arrears – and avoid the

process of possession. If no agreement can be reached, the court may decide that

there is no alternative but to make an outright order for possession.

If the landlord/mortgage-holder fails to turn up at the hearing the judge will make a

decision based on the information available. If a party does not attend the hearing,

the court may make an order in their absence.

The tenant may have received and opened the notification of commencement of

possession proceedings and the date of the hearing. The 2010 Act ensures that

any unauthorised tenants now have a right to attend and be heard at the hearing.

Ministry of Justice Civil Procedure Rule 55.10 on possession claims relating to mortgaged

residential property.

A tenant may simply attend the hearing and ask the court to delay the date of the

possession in order to enable them to arrange alternative accommodation. The Act

gives the court power to delay the date for a period of up to two months. A tenant

should bring with them to court any evidence of their tenancy.

6.2 Possible outcomes

There is a range of possible outcomes of a possession hearing, depending on the

situation of the landlord mortgage-holder and any unauthorised tenants and the

circumstances of the case:

• Case dismissed

This means the court has refused to make a possession order. If the claim is

dismissed it no longer exists.

• Adjournment

This means that the hearing does not proceed at the time (for example, due to

absence of the parties or the need for further information or clarification). The court

may adjourn the hearing to another date. The parties may bring the case back to

court unless the adjournment is conditional (e.g. if not restored in six months it is

dismissed)

• Suspended order for possession

A suspended order is a relatively common outcome. It gives mortgage-holders a

further chance to pay – and retain their property – and also gives the lender

security.

The possession order is granted – the lender has a right to possession and the

order fixes a date for possession – but the court has suspended possession upon

compliance with particular conditions. In the case of the landlord/mortgage-holder,

such conditions may be the payment of the current monthly instalment and an

agreed amount towards the arrears.

However, upon a breach of those conditions, the lender is entitled to enforce the

possession order immediately by applying for a warrant of possession. This is an

administrative process with no hearing.

• Outright order for possession

This means that the lender has a right to possession after a fixed period – typically

14 or 28 days – without conditions or further process. The lender can apply for a

warrant of possession to enforce the order for possession.

6.3 When the court orders the tenant to make payments

The 2010 Act enables the court to order the tenant to make payments to the lender

for their occupation of the property during the period of postponement.

6.4 Income from tenant not implying or creating a tenancy agreement

The making of payments for occupation of the property to the lender for the period

before possession takes effect does not imply that a tenancy agreement exists or

has existed, and any payments made are not to be regarded as evidence of any

tenancy agreement and do not give rise to landlord obligations on the part of the

lender.

Any property repair and maintenance obligations and liabilities remain those of the

landlord as the tenancy is between the landlord and tenant. If any major repairs are

required within the two month period when possession is delayed (e.g. a faulty

boiler) the lender may wish to consider stepping in, when to do so would be in

order to protect the value of their asset.

6.5 Agreement to remain not implying or creating a tenancy agreement

Any agreement by the lender for the tenant to remain in the property without any

payment is not to be regarded as evidence of a right to occupy the property and

does not give rise to landlord obligations on the part of the lender.

6.6 What constitutes a genuine tenancy?

The court will decide whether the tenant has a genuine tenancy on the basis of the

evidence presented. A tenancy does not need to have a written agreement to be

legally binding. Usually once a person is given exclusive possession and the owner

accepts rental payments, a tenancy exists.

The following documents could be used to provide evidence of the existence of a

tenancy agreement between the borrower and the tenant:

• tenancy agreement

• rent book or equivalent, with proof of payments

• bank statements (or passbook; showing regular payments in line with the

terms of the agreement)

• housing benefit documentation (or LHA documents held by the local

authority)

• receipts (including the name of the payer and payee, amount paid, and

purpose of payment, i.e. rent)

• correspondence between the borrower and tenant indicating that a tenancy

exists, or existed

• where a deposit is paid, notification of the deposit by the landlord or

evidence it has been lodged with one of three Government-endorsed

deposit schemes:

- Tenancy Deposit Solutions Limited (TDSL) (www.mydeposits.co.uk)

- The Dispute Service (TDS) (www.tds.gb.com)

- The Deposit Protection Service (www.depositprotection.com)

6.7 What the court will and can take into account

In accordance with the Act, the court will take into account whether the tenant has

complied with the terms of the tenancy or, if the tenant has committed a breach of

the tenancy, what was the nature of the breach and to what extent the tenant was

responsible. It is expected that anti-social behavior would be considered a breach

of the tenancy agreement. The court has discretion to take into account the wider

circumstances of the tenant, the landlord/mortgage-holder and the lender.

Joint tenants have equal rights and are both responsible, individually and together,

for keeping to all the conditions of their tenancy agreement. Each tenant is

responsible for making sure that rent and other charges are paid in full. If there is a

breach of the Tenancy Agreement, either tenant can be held fully responsible.

The tenant’s right to request a delay to the possession order can only be exercised

in respect of the tenancy in court once. The tenant has two opportunities to make

the request: at the possession hearing or by application to the court following issue

of a notice of execution of possession and if the lender has refused to give an

undertaking to delay the possession.

6.8 Landlords who let out a property after a possession order has been

granted by the court

Sometimes a landlord will knowingly let a property that is already the subject of a

possession order. Landlords may deliberately install new tenants to delay

possession by colluding with the tenant to request the two month delay to

possession. Courts have discretion to refuse the two month delay period if, based

on evidence, they are of the view that the tenancy is not valid or has been falsely

devised.

Where the court is of the view that the tenancy was taken out in good faith by the

tenant, then the tenant would be entitled to a delay to possession upon receipt of

the Notice of execution of possession order.

6.9 Lender appointment of Law of Property Act Receivers

A lender has the ability to appoint a Law of Property Act receiver (under the Law of

Property Act 1925). A Law of Property Act receiver is someone appointed to take

charge of a mortgaged property by a lender to act on behalf of the borrower whose

loan is in default, either with a view to sale or to collect rental income for the lender

and/or manage the property. In some instances a lender may chose to exercise

this right and use a Law of Property Act receiver to collect payment from the

tenants rather than receive income directly. This is acceptable although clear

communication to any tenants of this course of action is recommended in order

that they are clear on whom they should pay. Tenants who are unsure as to who

to pay rent to (whether landlord, lender or receiver should take legal advice).

7. After the possession hearing

7.1 Enforcing the possession order (obtaining a warrant of possession)

To enforce a possession order, the lender must request that the court issues a

warrant of possession using form N325: Request for Warrant of Possession of

land.

7.2 Tenant/occupier notification

Before a lender can take possession of a property, the 2010 Act requires the

lender to send to the property a Notice of Execution of Possession Order (see the

Schedule within the regulations contained at Annex B.)

(a) Methods of delivery of notice

The notice can be sent to tenants or occupants by the following methods:

• first class post

• registered post

• leaving the notice at the property

• personal service by an agent of the lender

(b) Information required on the notice

The regulation requires the lender (or their agent) to state the following

information/detail on the notice:

• the date on which they have applied, or intend to apply, to the court for a

warrant of possession against the property. The possession order will only be

executed after the end of 14 days beginning with the day on which the notice is

given. This means that although a lender is able to apply for the warrant of

possession at the same time as sending the notice, the warrant will not be able

to take effect until the prescribed period of 14 days has expired. The lender

does not have to wait for the prescribed period to end before applying for the

warrant.

• the name, address, and telephone number of the court at which they have

applied, or intend to apply, for a warrant of possession against the property

• the name of the tenant (if known) on whom the notice is served (or

“tenant/occupier” if the tenant’s name is not known) and the address of the

property

• the name, telephone number and full address of the lender (or their agent)

where enquires about the notice can be made. (The agent should always

indicate the name of the lender (and provide their details), on whose behalf the

agent is acting.)

• the signature of the lender or lender’s agent and the date of the signing

Section 2 of the Act states that the “mortgagee's notice of execution of the

possession order must be in the form set out in the Schedule to the Regulations.”

At the time of application for the warrant of possession, the lender will need to

have evidence of the tenant having been informed of the application via the use of

the appropriate form. If a lender fails to use the appropriate form, as prescribed, or

fails to include the information required on the form, the court will not grant the

warrant for possession.

Where the lender makes a request for the issue of a warrant of possession using

the Pcol system (electronic issue of proceedings) the lender must file a certificate

of service indicating that the notice has been served. Where the lender uses N325

to request the warrant, the box on the form certifying that the regulations have

been complied with must be completed.

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(d) Timescale

Lenders should be aware that the possession order will only be executed by

warrant after the end of the 14 days beginning with the day on which the notice is

given. The application for the warrant can run concurrently with the Notice of

Execution of Possession Order and a lender does not have to wait for the

prescribed period to expire before applying for the warrant. However any warrant

will not come into effect until after the 14 day period of notice.

Where lenders have applied to the court for a warrant when the notice is sent,

tenants will have minimal time in which to act and request the two month delay.

This is the second opportunity that the legislation provides for and is intended to be

a second chance for tenants who may have missed the opportunity to attend the

initial possession hearing.

The tenant can request a delay of the lender. There is no obligation on behalf of

lenders to grant this request. However if the tenancy was taken out in good faith

the lender would need to be very cautious about not agreeing to delay the

possession, given that the tenant has the right to apply to the court should the

lender refuse the request or not respond.

If the lender agrees to delay possession, the tenant should request that the lender

send written confirmation of this to the tenant. It is important that written

confirmation is obtained since this is the only evidence the tenant will have to show

that they have a (temporary) right to occupy the property.

If a tenant has already received a postponement of possession they cannot

request another delay.

If tenants do not ask for a postponement, the lender may go ahead and obtain

possession of the property on the date fixed.

7.3 Applicability to all possession cases

The requirement for lenders to send the Notice of Execution of Possession Order

is applicable to all mortgaged dwelling houses where a possession order is to be

enforced, not just tenanted properties. In the majority of cases this will be owner-

occupier properties.

7.4 Tenant right to appeal the decision of the lender to court

If the lender does not give an undertaking to postpone seeking the warrant, and

the tenant has not previously requested the delay at the original possession

hearing, the tenant may apply to the court for a postponement of the enforcement

of the order.

Tenants in these circumstances would not apply to appeal the order for possession

but would be applying to the court so that the warrant for possession, which

executes the possession order, is postponed for up to two months. Tenants

cannot apply to the court for a reconsideration of the validity of the original

possession order.

The tenants application should be made on an Application Notice form N244 and

should be submitted as soon as possible in order to tenants the maximum amount

of time should the application be refused.

The name and address of the court to which the tenant should apply is stated on

the notice. Information on fees for all court applications is available at:

http://www.hmcourts-service.gov.uk/infoabout/fees/index.htm.

8. The application hearing

8.1 What happens at an application hearing?

In cases where the lender has refused permission to postpone the possession of

the property (or has failed to acknowledge or reply to the tenant’s request for

postponement) and the tenant has applied to the court for a postponement of the

execution of the warrant of possession, the court will fix a hearing so that it can

consider the application. The claimant and the landlord/mortgage-holder will be

notified of the date of the hearing.

8.2 Possible outcomes

• Application is adjourned

This means that the hearing does not proceed (for example, due to non attendance

of parties or the need for further information or clarification). The court will adjourn

the hearing and may give a new date. Note: the court may make an order in the

absence of the parties.

• Application dismissed

If the tenant’s application to have the date of execution of the warrant for

possession postponed has been dismissed, for example because the tenant’s

application has been deemed invalid, the date fixed for possession of the property

stands. Accordingly the date by which any tenants should have vacated the

property remains valid.

• Execution of the warrant for possession is postponed

This means that, following an application by the tenant, the date for execution of

the warrant for possession of the property is postponed for a specified period of

time set by the court and a further date for execution will be fixed. Upon the date

specified in the warrant, the lender will take possession of the property. Any

tenants or residents should have vacated the property by that date and found

alternative accommodation.

9. Related and relevant legislation

9.1 Other legislation

• Law of Property Act 1925

• Administration of Justice Act 1970

• Administration of Justice Act 1973

• Rent Act 1977

• Housing Act 1988

• Housing Act 1996

• Data Protection Act 1998

9.2 Data protection issues

Under the Data Protection Act 1998 the lender is constrained from discussing the

individual details of a landlord’s mortgage with tenants. However, if a tenant makes

contact with the lender or the agent, as a result of receiving the notice of the

possession hearing or the notice of execution of possession order, the lender can

confirm the details of the possession hearing, and the tenant can make himself

known to the lender (or agent). The lender can then consider the tenant’s status

and a course of action and consider any request for postponement. Data protection

rules do not prevent this level of communication between lender and tenant.

The Information Commissioner’s Office has confirmed that lenders are able to

disclose some information to tenants (such as whether they have appointed a

receiver and when a repossession order may be enforced). Lenders should not

disclose more details than are necessary to enable tenants to obtain advice and to

understand their rights and obligations.

10. Questions and answers

(Some of these points are covered in the guidance but are repeated here for ease

of reference.)

10.1 How can a tenant check if their landlord has obtained the necessary

consent to let?

Professional letting agents should request evidence from a landlord that the

property has received consent to let from the landlord’s lender. Letting agents

should not market a property for letting if they have not satisfied themselves that

this has been obtained. The tenant can request this assurance from their landlord.

10.2 What if the tenancy agreement pre-dates the mortgage agreement?

If a tenant was in the property before the mortgage was taken out the tenancy will

usually be binding on the lender. This is a complicated area of law. Tenants who

find themselves in this situation should immediately take independent legal advice

from a local housing law centre.

10.3. Does the tenant always get two months delay?

Any postponement of possession must not exceed two months but it does not have

to be two months, for example if the tenant feels that one month is adequate for

their circumstances and there is a mutual agreement to this with the lender. The

court will make the final determination if necessary. Tenants may not get any

delay if the court does not allow their application.

10.4 Deposit arrangements

If the tenancy started on, or after, 6 April 2007, the landlord should have protected

the deposit using the Deposit Protection Scheme. The tenant should have been

notified of this by the scheme provider and informed of how to recover their

deposit.

The deposit belongs to the tenant and should be returned to the tenant unless the

landlord can show that they have had to deduct money because of the condition of

the property. The tenant can ask to be shown receipts or estimates for items that

have been deducted from their deposit. The tenant should take up any issues

connected with the deposit with their landlord or, if this is not possible, the deposit

scheme provider. There is no role for the lender.

10.5 Can the Notice of Execution of Possession Order be served before an

absolute order becomes effective?

Yes. The Notice of Execution of the Possession Order can be served so it is

running concurrently with an absolute possession order. To minimise delay lenders

could serve the notice before the possession order is effective. In the majority of

cases therefore there would not be any additional time to add to the possession

process, as the recipients of the notice will be owner-occupiers or authorised

tenants, in both cases known to the lender. The only delay would occur if an

unauthorised tenant made themselves known and came forward to the lender. The

lender would then need to engage with the tenant as per the legislation.

10.6 When exactly do the legislation and regulations take effect?

The Mortgage Repossessions (Protection of Tenants etc) Act 2010 and The

Dwelling Houses (Execution of Possession Orders by Mortgagees) Regulations

2010 both come into effect on 1

October 2010.

Where a lender has obtained a possession order under the old rules, but seeks a

warrant of possession on or after 1

October, it will have to serve notice in

accordance with section 2 of the Act and the new regulation on the execution of

possession orders.

10.7 How does the legislation work where there is more than one tenant?

If there are joint tenants, there would still be only one period of delay.

10.8 Compatibility with FSA Mortgage Conduct of Business (MCOB)

The Financial Services Authority (FSA) imposes a number of requirements on

lenders repossessing a property which are set out in the Mortgages and Home

Finance: Conduct of Business (MCOB) Rules. This includes the requirement that

lenders must market a repossessed property as soon as possible and must obtain

the best price that might reasonably be paid.

In guidance supporting this rule, the FSA recognises that a balance has to be

struck between the need to sell the property as soon as possible, to reduce or

remove the outstanding debt, and other factors which may prompt the delay of the

sale, which may include, for example, things necessary to achieve the optimal

selling price.

Whilst much will depend on the facts of each case, lenders giving tenants

reasonable notice to leave the property will not necessarily conflict with the current

requirements under MCOB which imply to delay a sale would be detrimental to the

borrower.

10.9 What happens if a landlord hands in the keys?

It is feasible, although likely to be rare, for a landlord to hand in the keys to a

property – a so called ‘voluntary possession’ - whilst tenants are still in occupation.

Lenders are likely to still request a possession order and apply for a warrant to

enforce the possession in order to be sure that they have legal vacant possession.

In this instance therefore the lender will need to send the notice of execution of

possession order to comply with the legislation. Any tenants will be captured this

way.

10.10 What happens if a tenant is in receipt of Housing Benefit which has

been paid direct to the landlord?

If the court delays possession for a tenant who is in receipt of housing benefit,

which is paid directly to the landlord and the court has made an order that the

rental payments must be paid to the lender, then the tenant will need to apply to

their local authority to have their housing benefit/local housing allowance payments

directed to the lender for the period that possession is postponed. The lender may

need to accept some delay in receipt of payments whilst this is administered.

10.11 Can the tenant request another delay to possession if their landlord

clears arrears and then falls into arrears again?

A landlord may receive a suspended possession order and at the same time the

tenant may have requested and received a delay to possession. If the landlord

complies with the terms of the suspended possession order in full then the order

may fall away. If this happens quickly the tenant, despite having previously

received a delay to possession, may decide to remain in the property now that the

possession will not be enforced. If subsequently the landlord falls into arrears

again, the lender will have to bring new proceedings and seek a new possession

order. In this situation it is our view that there is nothing to prevent a tenant

requesting a delay to possession again as this is a new possession process and

that it would be within the jurisdiction of the court to allow this. This is ultimately a

matter for the courts to decide.

Annex A: Mortgage Repossessions (Protection of

Tenants etc.) Act 2010

ELIZABETH II c. 19

Mortgage Repossessions (Protection of

Tenants etc) Act 2010

2010 CHAPTER 19

An Act to protect persons whose tenancies are not binding on mortgagees and

to require mortgagees to give notice of the proposed execution of possession

orders. [8th April 2010]

E IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

1 Power of court to postpone giving of possession

(1) This section applies if—

(a) the mortgagee under a mortgage of land which consists of or includes

a dwelling-house brings an action (other than an action for foreclosure)

in which the mortgagee claims possession of the mortgaged property,

and

(b) there is an unauthorised tenancy of all or part of the property.

(2) When making an order for delivery of possession of the property, the court

may, on the application of the tenant, postpone the date for delivery of

possession for a period not exceeding two months.

(3) Subsection (4) applies where an order for delivery of possession of the property

has been made but not executed.

(4) The court may, on the application of the tenant (“the applicant”), stay or

suspend execution of the order for a period not exceeding two months if—

(a) the court did not exercise its powers under subsection (2) when making

the order or, if it did, the applicant was not the tenant when it exercised

those powers,

Mortgage Repossessions (Protection of Tenants etc) Act 2010 (c. 19)

(b) the applicant has asked the mortgagee to give an undertaking in

writing not to enforce the order for two months beginning with the date

the undertaking is given, and

(5) When considering whether to exercise its powers under this section, the court

must have regard to—

(a) the circumstances of the tenant, and

(b) if there is an outstanding breach by the tenant of a term of the

unauthorised tenancy—

(i) the nature of that breach, and

(ii) whether the tenant might reasonably be expected to have

avoided breaching that term or to have remedied the breach.

(6) The court may make any postponement, stay or suspension under this section

conditional on the making of payments to the mortgagee in respect of the

occupation of the property (or part of the property) during the period of the

postponement, stay or suspension.

(7) The making of any payment pursuant to—

(a) a condition of an undertaking of a kind mentioned in subsection (4)(c),

(b) a condition imposed by virtue of subsection (6),

is not to be regarded as creating (or as evidence of the creation of) any tenancy

or other right to occupy the property.

(8) For the purposes of this section there is an “unauthorised tenancy” if—

(a) an agreement has been made which, as between the parties to it (or

their successors in title), is or gives rise to—

(i) an assured tenancy (within the meaning of the Housing Act

1988), or

(ii) a protected or statutory tenancy (within the meaning of the Rent

Act 1977), and

(b) the mortgagee’s interest in the property is not subject to the tenancy.

(9) In this section “the tenant”, in relation to an unauthorised tenancy, means the

person who is, as between the parties to the agreement in question (or their

successors in title), the tenant under the unauthorised tenancy (or, if there is

more than one tenant, any of them).

2 Notice of execution of possession order

(1) This section applies where the mortgagee under a mortgage of land which

consists of or includes a dwelling-house has obtained an order for possession

of the mortgaged property.

(2) The order may be executed—

(a) only if the mortgagee gives notice at the property of any prescribed step

taken for the purpose of executing the order, and

(b) only after the end of a prescribed period beginning with the day on

which such notice is given.

(3) “Prescribed” means prescribed by regulations made by the Secretary of State.

Mortgage Repossessions (Protection of Tenants etc) Act 2010 (c. 19)

(4) Regulations made by the Secretary of State may prescribe the form of notices

and the way in which they must be given.

(5) The regulations may make supplementary, incidental, transitional or saving

provision.

(6) Regulations under this section may be made only with the consent of the Lord

Chancellor.

(7) Regulations under this section are to be made by statutory instrument.

(8) A statutory instrument containing regulations made under this section is

subject to annulment in pursuance of a resolution of either House of

Parliament.

3 Interpretation

(1) This section applies for the purposes of this Act.

(2) “Dwelling-house” includes any building, or part of a building, that is used as a

dwelling.

(3) The fact that part of the premises comprised in a dwelling-house is used as a

shop or office, or for other business, trade or professional purposes, does not

prevent the dwelling-house from being a dwelling-house for the purposes of

this Act.

(4) “Mortgage” includes a charge, and “mortgagee” is to be read accordingly.

(5) “Mortgagee” includes any person deriving title under the original mortgagee.

(6) “Order” includes a judgment, and references to the making of an order are to

be read accordingly.

4 Commencement, extent and short title

(1) This Act (except this section) comes into force on such day as the Secretary of

State may by order made by statutory instrument appoint (and different days

may be appointed for different purposes).

(2) An order under subsection (1) may make transitional or saving provision.

(3) This Act extends to England and Wales only.

(4) This Act may be cited as the Mortgage Repossessions (Protection of Tenants

etc) Act 2010.

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Annex B: The Dwelling Houses (Execution of

Possession Orders by Mortgagees) Regulations 2010

STATUTORY INSTRUMENTS

2010 No. 1809

LANDLORD AND TENANT, ENGLAND AND WALES

The Dwelling Houses (Execution of Possession Orders by

Mortgagees) Regulations 2010

Made - - - - 13th July 2010

Laid before Parliament 19th July 2010

Coming into force - - 1st October 2010

The Secretary of State makes the following Regulations in exercise of the powers conferred by

section 2(2) to (5) of the Mortgage Repossessions (Protection of Tenants etc) Act 2010(a) (“the

Act”).

The Lord Chancellor has consented to the making of these Regulations.

Citation and commencement

1. These Regulations may be cited as the Dwelling Houses (Execution of Possession Orders

by Mortgagees) Regulations 2010 and come into force on 1st October 2010.

Notice of execution of possession order: prescribed step and prescribed period

2. The prescribed step referred to in section 2(2)(a) of the Act is the mortgagee making an

application to the court for a warrant for possession of the property.

3. The prescribed period referred to in section 2(2)(b) of the Act is fourteen days.

Prescribed form of notice of execution of possession order

4. The mortgagee’s notice of execution of the possession order must be in the form set out in

the Schedule to these Regulations.

Manner of giving notice

5.—(1) The mortgagee’s notice under regulation 4 may be given in any of the following

ways—

(a) by sending the notice to the property by first class post or registered post in an envelope

addressed—

(i) to the tenant by name, or

(ii) if the tenant’s name is not known, to “The Tenant or Occupier”;

(a) 2010 c. 19

(b) by leaving the notice at the property—

(i) in an envelope addressed as described in subparagraph (a), or

(ii) affixed to and displayed in a prominent place where its contents can be read by a

person entering the property; or

Signed by authority of the Secretary of State for Communities and Local Government

Grant Shapps

Minister of State

12th July 2010 Department for Communities and Local Government

The Lord Chancellor consents to the making of these Regulations.

Jonathan Djanogly

Parliamentary Under Secretary of State

13th July 2010 Ministry of Justice

SCHEDULE Regulation 4

Notice that your home is at risk

If you are paying rent to live in this property, please read the following carefully.

If you are an owner occupier, please seek advice on your

position as different rules apply

This notice is given under Section 2(4) of the Mortgage Repossessions (Protection of

Tenants etc) Act 2010.

I give you notice that the Lender/the Lender’s Agent has applied/will apply (delete as

appropriate) to the court for a warrant for possession against this property

on:………………………………..

(Insert the date on which the application for the warrant for possession was made or will be

made. The order will only be executed after the end of the 14 day prescribed period.)

At:……………………………………………………………………………….

Tel:………………………………………………………………………………

Address:…………………………………………………………………………

…………………………………………………………………………………...

(Insert the name, address and telephone number of the court at which the application has

been or will be made.)

1. This notice advises you that you could be evicted from your home. For tenants, be

advised that your landlord’s Lender has obtained an order for possession against the

property. It is now seeking to enforce that order through the courts. Please read this notice

carefully. If you need advice you should contact any of the following:

—a Citizens’ Advice Bureau;

—a housing advice organisation, or charity such as Shelter;

—a housing aid centre;

—a Law Centre;

—a solicitor.

2. The law gives certain tenants the right to apply to the Lender to ask it not to enforce the

order for a period of two months. You should contact the Lender or its Agent on the number

given to ask for this delay if you require it. This is to give you time to find somewhere else

to live. If you are unsure whether you may qualify, you should seek advice immediately

from one of the organisations listed, or a similar organisation. If the Lender agrees to your

request, they must confirm this to you in writing. If the Lender refuses your request, or if

you receive no reply, you may be able to make an application to court for a similar delay.

The Lender may make any agreement with you conditional on you continuing to pay to live

at the property. An application to the Lender or to the court should be accompanied by any

evidence you have to prove the existence of your tenancy.

3. This notice is not directed at owner occupiers. If you pay a mortgage to live at the

property, you should urgently seek advice on your position as you have different rights.

4. If you do not ask for a delay, the Lender can go ahead to obtain possession of this

property. Although the warrant for possession cannot be executed earlier than 14 days after

the date on which the Lender sent you this notice you must act quickly if you are seeking

the delay, otherwise you may run out of time.

Served on:……………………………………………………………………….

(Insert address of the property. Address to: “Tenant/Occupier” or name of tenant(s) if

known).

Served by::………………………………………………………………………(“the

Lender”)

Tel:………………………………………………………………………………

Address:…………………………………………………………………………

………………………………………………………………………………….

………………………………………………………………………………… .

(Insert full name of Lender, telephone number and address where enquiries about this notice

can be made.)

If served by Lender’s Agent:

Served on:……………………………………………………………………….

(Insert address of the property. Address to: “Tenant/Occupier” or name of tenant(s) if

known).

Served by:………………………………………………………………………(“the Lender’s

Agent”)

On behalf of:……………………………………………………………………(“the Lender”)

Tel:………………………………………………………………………………

Address:…………………………………………………………………………

………………………………………………………………………………….

………………………………………………………………………………… .

(Insert full name of Lender’s Agent, telephone number and address where enquiries about

this notice can be made.)

Signed………………………………………………….. Date……………………………….

To be signed and dated by the Lender or the Lender’s Agent

EXPLANATORY NOTE

(This note is not part of the Regulations)

The Mortgage Repossessions (Protection of Tenants etc) Act 2010 (“the Act”) empowers the

Secretary of State to make Regulations providing for the giving of notice of execution of

possession orders by mortgagees in relation to dwelling houses. These Regulations, which extend

to England and Wales, provide for a notice of execution of possession order to be given at all

residential properties where the mortgage lender (“the mortgagee”) is seeking to execute a

possession order against the borrower.

Regulation 2 specifies that the prescribed step for the purposes of section 2(2)(a) of the Act is the

making, by the mortgagee, of an application to the court for a warrant for possession of the

mortgaged dwelling house. Regulation 3 prescribes a period of fourteen days after the mortgagee

has given notice of this step at the premises, during which the possession order may not be

executed (see section 2(2)(b) of the Act).

Regulation 4 introduces the Schedule to the Regulations which prescribes a form for the purposes

of giving notice at the property. Regulation 5 prescribes acceptable methods of giving the notice

of execution of the possession order.

An impact assessment has been prepared in respect of the Act. It has been deposited in the Library

of each House of Parliament and is available from the Department for Communities and Local

Government, Eland House, Bressenden Place, London SW1E 5DU or email

kirstin.blagden@communities.gsi.gov.uk.

£4.00

E7465 7/2010 107465T 19585

9 780111 500071

ISBN 978-0-11-150007-1

____________________________________________________________________________________________________________

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of Her Majesty’s Stationery Office and Queen’s Printer of Acts of Parliament.

Annex C: Changes to the Civil Procedure Rules

Part 55 Possession Claims and CCR O.26 Warrants of Execution, Delivery

and Possession

Amendments are made to allow unauthorised tenants living in a mortgaged

property to apply to the court for postponement of the date of delivery of

possession. Amendments are also made requiring a lender to notify all

tenants/occupiers of a property before taking steps to enforce a possession order.

An unauthorised tenant may then apply to the lender for a delay in execution of the

warrant of possession to allow the tenant time to find another home. If the lender

does not agree to an extension of time the unauthorised tenant may apply to the

court for a decision. Note: Form N325 is amended to support this change.

Annex D: Relevant court forms

Page

Form N5: Claim for Possession of Property 31-32

Form N11M: Defence Claim form for Mortgaged Residential Premises) 33-38

Form N325: Warrant for Possession of Land 39

Form N244: Application Notice 40-42

N5 Claim form for possession of property (08.05) HMCS

Claim form for

possession of

property

Court fee

Solicitor’s costs

Total amount

The claimant is claiming possession of :

Defendant’s

name and

address for

service

which (includes) (does not include) residential property. Full particulars of the claim are attached.

(The claimant is also making a claim for money).

Claimant

(name(s) and address(es))

SEAL

In the

Claim No.

Defendant(s)

(name(s) and address(es))

This claim will be heard on: 20 at am/pm

At the hearing

• The court will consider whether or not you must leave the property and, if so, when.

• It will take into account information the claimant provides and any you provide.

What you should do

• Get help and advice immediately from a solicitor or an advice agency.

• Help yourself and the court by lling in the defence form and coming to the hearing to make sure the court

knows all the facts.

Issue date

Click here to clear all fields

Click here to print form

Claim No.

Grounds for possession

The claim for possession is made on the following

ground(s):

rent arrears

other breach of tenancy

forfeiture of the lease

mortgage arrears

other breach of the mortgage

trespass

other (please specify)

actual or threatened anti-social behaviour

actual or threatened use of the property for

unlawful purposes

Anti-social behaviour

The claimant is alleging:

Does, or will, the claim include any issues under the Human Rights Act 1998? Yes No

See full details in the attached particulars of claim

Statement of Truth

(I believe)(The claimant believes) that the facts stated in this claim form are true.

I am duly authorised by the claimant to sign this statement.

signed

(Claimant)(Litigation friend (where the claimant is a child or a patient))(Claimant’s solicitor)

delete as appropriate

(if signing on behalf of firm or company)

Full name

Name of claimant’s solicitor’s firm

position or office held

date

Is the claimant claiming demotion of tenancy? Yes No

Is the claimant claiming an order suspending the right to buy? Yes No

Claimant’s or

claimant’s solicitor’s

address to which

documents or payments

should be sent if

different from overleaf.

Postcode

fax no.

e-mail

DX no.

Tel. no.

Ref. no.

if applicable

Click here to print form

Defence form

(mortgaged residential premises)

Name of court Claim No.

Name of Claimant

Name of Defendant

Date of hearing

Personal details

Please give your:

Title Mr Mrs Miss Ms Other

First name(s) in full

Last name

Date of birth

Address (if different from the address on the claim form)

Postcode

D D M M Y Y Y Y

Disputing the claim

Do you agree with what is said about the property and the

mortgage agreement in the particulars of claim?

If No, set out your reasons below:

Do you agree that there are arrears of mortgage repayments as

stated in the particulars of claim?

If No, state how much the arrears are:

Yes No

£ None

N11M Defence form (mortgaged residential premises) (04.06) HMCS

✔

Click here to print form

Click here to reset form

If the particulars of claim give any reasons for possession

other than arrears of mortgage repayments, do you agree with

what is said?

If No, give details below:

(Only answer these questions if the loan secured by the mortgage (or part

of it) is a regulated consumer credit agreement)

Do you want the court to consider whether or not the terms of

your original loan agreement are fair?

Do you intend to apply to the court for an order changing the

terms of your loan agreement (a time order)?

Arrears

Have you paid any money to your mortgage lender since the

claim was issued?

If Yes, state how much you have paid and when:

Have you come to any agreement with your mortgage lender

about repaying the arrears since the claim was issued?

I have agreed to pay £ each (week)(month).

If you have not reached an agreement with your mortgage

lender, do you want the court to consider allowing you to pay

the arrears by instalments?

How much can you afford to pay in addition to the current

instalments?

£ per (week)(month)

Yes No

10.

£ date

About yourself

State benefits

Are you receiving Income Support?

Have you applied for Income Support?

If Yes, when did you apply?

Does the Department of Social Security pay your mortgage

interest?

Dependants (people you look after financially)

Have you any dependant children?

If Yes, give the number in each age group below:

under 1

1 11-15 16-17 18 and over

Other dependants

Give details of any other dependants for whom you are

financially responsible:

Other residents

Give details of any other people living at the premises for

whom you are not financially responsible:

Yes No

11.

12.

13.

14.

15.

16.

17.

Money you receive

Usual take-home pay or income if self-employed £

including overtime, commission, bonuses

Job Seekers allowance £

Pension £

Child benefit £

Other benefits and allowances £

Others living in my home give me £

I am paid maintenance for myself (or children) of £

Other income £

Total income £

Weekly Monthly

Bank accounts and savings

Do you have a current bank or building society account?

If Yes, is it

in credit? If so, by how much? £

overdrawn? If so, by how much? £

Do you have a savings or deposit account?

If Yes,what is the balance? £

Money you pay out

Do you have to pay any court orders or fines?

Give details if you are in arrears with any of the court

payments or fines:

Do you have any loan or credit debts?

Loan/credit Balance Instalments

from owing paid

Give details if you are in arrears with any loan / credit

repayments:

Yes No

Court Claim/Case Balance Instalments

number owing paid

18.

19.

20.

21.

22.

23.

Total instalments paid £ per month

Regular expenses

(Do not include any payments made by other

members of the household out of their own income)

What regular expenses do you have?

(List below)

Council tax £

Gas £

Electricity £

Water charges £

TV rental & licence £

Telephone £

Credit repayments £

Mail order £

Housekeeping, food, £

school meals

ravelling expenses £

Clothing £

Maintenance payments £

Other mortgages £

Other £

Total expenses £

Priority debts

This section is for arrears only. Do not

include regular expenses listed at Question 24.

Council tax arrears £

ater charges arrears £

Gas account £

Electricity account £

Maintenance arrears £

Others

(give details below)

24.

25.

Weekly Monthly

Statement of Truth

(I believe)(The defendant believes) that the facts stated in this defence form are true.

I am duly authorised by the defendant to sign this statement.

signed

(Defendant)(Litigation friend(where defendant is a child or a patient))(Defendant’s solicitor)

delete as appropriate

(if signing on behalf of firm or company)

Full name

Name of defendant’s solicitor’s firm

position or office held

date

Give details of any events or circumstances which have led to your being in arrears with your mortgage (for

example divorce, separation, redundancy, bereavement, illness, bankruptcy). If you believe you would suffer

exceptional hardship by being ordered to leave the property immediately, say why.

27.

If an order for possession were to be made, would you have

somewhere else to live?

If Yes, say when you would be able to move in:

Yes No

26.

Click here to print form

Request for Warrant of Possession of Land

To be completed and signed by the claimant or his solicitor and sent to the court with the appropriate fee

You should provide a contact number so that the baili can speak to you if he/she needs to:

Daytime phone number: Evening phone number (if possible):

Contact name (where appropriate):

Defendant’s phone number (if known):

If you have any other information which may help the baili or if you have reason to believe that the baili may encounter

any diculties you should write it below.

1. Claimant’s

name and

address

2. Name and

address for

service and

payment

(if dierent

from above)

Ref/Tel No.

3. Defendant’s

name and

address

4. Warrant details

(A) Balance due at the date of this request

(B) Amount for which warrant to issue

Issue fee

Solicitor’s costs

Land Registry fee

TOTAL

If the amount of the warrant at (B) is less

than the balance at (A), the sum due

after the warrant is paid will be

5. Property/land details

Date of judgment/order

Date of possession

Describe the land (as set out in the particulars of claim)

In the

County Court

Claim No.

For court use only

Warrant No.

Issue date:

Warrant applied for at o’clock

Foreign court code/name (execution only):

I certify that

(1) 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 the

balance now due is as shown)

(2) notice has been given in accordance

with The Dwelling Houses (Execution

of Possession Orders by Mortgagees)

Regulations 2010.

Signed

Claimant (Claimant’s solicitor)

Dated

* delete unless defendant is in arrears with the suspended

possession order or judgment

† delete unless warrant is to issue for execution also

IMPORTANT

You must inform the court immediately of any

payments you receive after you have sent this

request to the court

If there is more than one defendant and you are

not proceeding against all of them, enter here

the name(s) of the defendant(s) you wish to

proceed against

N325_1010.indd 1 24/08/2010 15:48:20

Application notice

Name of court

Claim no.

Warrant no.

(if applicable)

Claimant’s name

(including ref.)

Defendant’s name

(including ref.)

Date

What is your name or, if you are a solicitor, the name of your rm?

3. What order are you asking the court to make and why?

4. Have you attached a draft of the order you are applying for?

Yes No

How long do you think the hearing will last?

Is this time estimate agreed by all parties?

5. How do you want to have this application dealt with?

at a hearing without a hearing

at a telephone hearing

For help in completing this form please read

the notes for guidance form N244Notes.

Hours Minutes

Yes No

7. Give details of any xed trial date or period

8. What level of Judge does your hearing need?

9. Who should be served with this application?

Claimant Defendant Solicitor

Other (please specify)

2. Are you a

If you are a solicitor whom do you represent?

Click here to print form

Click here to reset form

Applicant’s address to which documents about this application should be sent

If applicable

Phone no.

Fax no.

DX no.

Ref no.

E-mail address

Postcode

10. What information will you be relying on, in support of your application?

the attached witness statement

the statement of case

the evidence set out in the box below

Statement of Truth

(I believe) (The applicant believes) that the facts stated in this section (and any continuation sheets) are true.

Signed Dated

Applicant(’s Solicitor)(’s litigation friend)

Full name

Name of applicant’s solicitor’s rm

Position or ofce held

(if signing on behalf of rm or company)

11. Signature and address details

If necessary, please continue on a separate sheet.

Signed Dated

Applicant(’s Solicitor)(’s litigation friend)

Position or ofce held

(if signing on behalf of rm or company)

Click here to print form

Paying the court fee

A court fee is payable depending on the type of

application you are making. For example:

• To apply for judgment to be set aside

• To apply to vary a judgment or suspend enforcement

• To apply for a summons or order for a witness

to attend

• To apply by consent, or without service of the

application notice, for a judgment or order.

No fee is payable for an application by consent for an

adjournment of a hearing if it is received by the court

at least 14 days before the date of the hearing.

What if I cannot afford the fee?

If you show that a payment of a court fee would

involve undue hardship to you, you may be eligible for

a fee concession.

For further information, or to apply for a fee concession,

ask court staff for a copy of the combined booklet and

form EX160A - Court fees - Do I have to pay them?

This is also available from any county court ofce, or a

copy of the leaet can be downloaded from our website

www.hmcourts-service.gov.uk

Completing the form

Question 3

Set out what order you are applying for and why;

e.g. to adjourn the hearing because..., to set aside a

judgment against me because... etc.

Question 5

Most applications will require a hearing and you

will be expected to attend. The court will allocate a

hearing date and time for the application. Please

indicate in a covering letter any dates that you are

unavailable within the next six weeks.

The court will only deal with the application ‘without a

hearing’ in the following circumstances.

• Where all the parties agree to the terms of the

order being asked for;

• Where all the parties agree that the court should

deal with the application without a hearing, or

• Where the court does not consider that a hearing

would be appropriate.

Application Notice (Form N244) – Notes for Guidance

Telephone hearings are only available in applications

where at least one of the parties involved in the case

is legally represented. Not all applications will be

suitable for a telephone hearing and the court may

refuse your request.

Question 6

If you do not know how long the hearing will take do

not guess but leave these boxes blank.

Question 7

If your case has already been allocated a hearing

date or trial period please insert details of those dates

in the box.

Question 8

If your case is being heard in the High Court or a

District Registry please indicate whether it is to be

dealt with by a Master, District Judge or Judge.

Question 9

Please indicate in the box provided who you want the

court to send a copy of the application to.

Question 10

In this section please set out the information you

want the court to take account of in support of the

application you are making.

If you wish to rely on:

• a witness statement, tick the rst box and attach

the statement to the application notice. A witness

statement form is available on request from the

court ofce.

• a statement of case, tick the second box if you

intend to rely on your particulars of claim or defence

in support of your application.

• written evidence on this form, tick the third box

and enter details in the space provided. You must

also complete the statement of truth. Proceedings

for contempt of court may be brought against a

person who signs a statement of truth without an

honest belief in its truth.

Question 11

The application must be signed and include your

current address and contact details. If you agree that

the court and the other parties may communicate with

you by Document Exchange, telephone, facsimile or

email, complete the details

Before returning your form to the court

Have you:

• signed the form on page 2,

• enclosed the correct fee or an application for fee

concession,

• made sufcient copies of your application and

supporting documentation. You will need to submit

one copy for each party to be served and one copy

for the court.

Court Staff cannot give legal advice. If you need

information or advice on a legal problem you can

contact Community Legal Service Direct on

0845 345 4 345 or www.clsdirect.org.uk, or a

Citizens Advice Bureau. Details of your local ofces

and contact numbers are available via their website

www.citizensadvice.org.uk

Annex E: Lenders step-by-step checklist

1. Compliance with Mortgage Pre Action Protocol

Possession proceedings:

2. Completion of claim form N5: Claim for Possession of Property.

3. Service of documents on mortgage-holder (landlord) (including defence form).

4. Defendant should complete and return defence form to the court within 14 days.)

5. Notice of commencement of possession proceedings sent to tenant/occupier

(within five days of the lender receiving hearing date).

6. Notice of commencement of possession proceedings served on the Head of

Housing (Homelessness) Service of the local authority within which the property is

located.

(This notice must contain the same information in the notice to the tenant/occupier

and must state the full address of the property).

[Possession hearing takes place].

Enforcement proceedings:

7. Completion of claim form N325: Request for Warrant of Possession of land form.

8. Notice of Execution of Possession Order sent to tenant/occupier allowing 14

days between service of the notice and the date of execution of the warrant of

possession. (NB: if the online request form is used the lender can certify the notice

of Execution has been served, if a paper request the lender will need to file a

certificate of service (the legal requirement to send the notice is applicable to all

properties whether owner occupied, containing authorised or unauthorised

tenants.)

Annex F: Contact details (implementation partners and

advice agencies)

Council of Mortgage Lenders

The Council of Mortgage Lenders is the trade association for the mortgage lending

industry, and their members account for around 94 per cent of UK residential

mortgage lending. CML are not able to answer consumer or non-member

enquiries.

For information on mortgages and the home buying process, please see:

http://www.cml.org.uk/cml/consumers

For other advice please see:

http://www.cml.org.uk/cml/consumers/conslinks where you can find contact details

for organisations that may be able to help.

The Building Societies Association

The Building Societies Association (BSA) is a trade association, representing

mutual lenders and deposit takers in the UK including all 49 UK building societies.

http://www.bsa.org.uk/consumer/index.htm

Community Legal Advice

Community Legal Advice is a free and confidential advice service paid for by legal

aid. Telephone: 0845 345 4 345.

Community Legal Advice centres and networks are opening through England and

Wales. See:

http://www.communitylegaladvice.org.uk/en/directory/directorysearch.jsp

Community Legal Advice is also available on digital interactive television.

http://www.communitylegaladvice.org.uk/en/about/website.jsp

Citizen’s Advice Bureaux

Citizens Advice provides free, confidential and independent advice from over 3,000

locations including bureaux, GP surgeries, hospitals, colleges, prisons and courts.

Advice is available face-to-face and by telephone; and some also provide email

advice.

http://www.citizensadvice.org.uk/index/getadvice.htm

Shelter

Shelter has a free housing advice helpline available on 0808 800 4444 (calls are

free from UK landlines and main mobile networks).

http://england.shelter.org.uk/

DirectGov

http://www.direct.gov.uk/en/HomeAndCommunity/index.htm

Communities and Local Government – for policy background to the

legislation

Andrew Gough: 0303 444 3772 andrew.gough@communities.gsi.gov.uk

Kirstin Blagden: 0303 444 3761 kirstin.blagden@communities.gsi.gov.uk

Department for Communities and Local Government

ISBN: 978 1 4098 2574 6

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