Frank Bowmaker succeeded in an urgent application to set aside a warrant of possession after execution. The Court found that Santander had enforced a possession order in an abusive and oppressive manner and immediately reinstated his client to their home.

The tenant held an AST with the leaseholder of the premises who in turn held a buy-to-let mortgage with Santander. Santander brought possession proceedings against the leaseholder. It used first-class post to serve notice of the proceedings and enforcement to the premises, which, it said, was in strict compliance with Reg 5(1)(a) of the Dwelling Houses (Execution of Possession Orders by Mortgagees) Regulations 2010 (“the 2010 Regulations”).

Santander was, however, aware that the freeholder had been changing the flat numbers in the block. As a result, the tenant’s case was that she had not received any post from the bank and was evicted by bailiffs without notice just before Christmas.

Frank successfully argued that his client’s statutory right to apply for a stay of execution under s. 1 of the Mortgage Repossessions (Protection of Tenants) Act (“MR(PT)A”) 2010 had been frustrated. The purpose of the legislation was to give innocent tenants more time to find alternative accommodation, and Santander’s obligation to “give notice at the property” under s. 2 MR(PT)A had to be construed in this light. First-class post was not “giving notice at the property” because the bank knew that the flat numbers had changed. Instead, it should have considered and attempted the alternative methods of service at Reg 5(1)(b)-(c) of the 2010 Regulations. This failure was not only an abuse of process but manifestly unfair and oppressive.

Frank was instructed by Zoheb Chaudhry of Alexander Shaw Solicitors.