Mortgage Repossessions (Protection of Tenants etc) Act 2010

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,

(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

(c) the mortgagee has not given such an undertaking.

(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), or

(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).