Generic selectors
Exact matches only
Search in title
Search in content
Post Type Selectors
Filter by Categories
Allocation
ASB
Assured Shorthold tenancy
assured-tenancy
Benefits and care
Deposits
Disrepair
Homeless
Housing Conditions
Housing law - All
Introductory and Demoted tenancies
Leasehold and shared ownership
Licences and occupiers
Mortgage possession
Nuisance
Possession
Regulation and planning
right-to-buy
secure-tenancy
Succession
Trusts and Estoppel
Unlawful eviction and harassment
By J
01/07/2011

Time is on my side (except in mortgage possession proceedings)*

Jayashankar v Lloyds TSB, Romford County Court, June 29, 2011.

A short – and important – point on mortgage possession proceedings. It appears that Mr Jayashankar had a mortgage over his property in favour of Lloyds TSB. He fell into arrears (about £14K at the time of the hearing), a possession order was made and, in due course, Lloyds issued a warrant. Mr Jayashankar applied to suspend the warrant (see ss 36 and 8, Administration of Justice Act 1970 and 1973), but the DDJ dismissed the application on the basis that he was not satisfied that Mr Jayashankar could pay the arrears within a reasonable period of time.

The warrant was executed and, after execution, Mr Jayashankar applied for permission to appeal on the basis that he now had additional evidence which, he said, showed he could pay the arrears within a reasonable period.

HHJ Platt noted that Cheltenham & Gloucester BS v Obi (1996) 28 HLR 22 was authority for the proposition that no power existed to stay or suspend under ss.36 and 8 once the warrant had been executed. On the face of it, this is a significant hurdle. However, Mr Jayashankar had a cunning argument to get around this. CPR 52.10 provides that the appeal court has all the powers of the lower court. So, since the lower court could have suspended the warrant, it must follow that the appeal court could.

HHJ Platt was not persuaded. Legal certainty favoured following the approach in Obi. In any event, CPR 52.10 was expressed to be subject to any other enactment (CPR 52.1). Sections 36 and 8 were such enactments. Permission to appeal granted, but appeal dismissed.

The Judge noted that this was not an entirely straight-foward question and (politely) suggested that the Court of Appeal might want to have a look at it at some stage. He also left open whether he might have come to a different view if the appeal had been lodged before the warrant was executed.

*as the Rolling Stones didn’t say.

 

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

0 Comments

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.