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Possession obtained - but what about belongings left behind?

The recent Court of Appeal decision in Da Rocha-Afodu & Anor v Mortgage Express Ltd & Anor [2014] clarifies when it is right, and reasonable, to remove and dispose of items that have been left in repossessed properties. This case derived from a mortgage possession claim, but the principles will apply to any landlord and tenant situation.

When the Claimants fell into arrears with their mortgage payments the mortgagee issued Court proceedings and obtained a possession order.  An eviction date was set and notice given to the Claimants informing them that they should vacate and remove all of their possessions from the property by the eviction date.  The Claimants failed to remove all of their belongings from the property. The mortgage terms and conditions stated that in the event of default or repossession, following a seven day notice, if the borrower left goods at the property, the mortgagee could take steps to remove and store the goods and either dispose of them, or return them to the rightful owner, if that person was not the borrower.  Despite a number of notices issued by the mortgagee warning that if the Claimants did not remove all of their belongings within 14 days they would be disposed of, the Claimants still failed to remove all of their belongings.  The mortgagee therefore disposed of the Claimants' possessions.

The Claimants issued proceedings seeking damages for the loss of their personal belongings.  They argued that the mortgage terms and conditions set out a number of events that the mortgagee had to comply with and that they should have stored the goods elsewhere before subsequently destroying them - and that as the mortgagee had not done so, they had acted in a manner that was not right and/or reasonable.   

The case was dismissed at first instance but the Claimants appealed to the Court of Appeal.

The court held that the mortgage terms and conditions were merely a framework within which the duty of care was to operate.  The mortgagee had taken all the right and reasonable steps, having given the borrower access on several occasions, providing several warnings and providing clear notices. The court also recognised that if the Claimants' case had been allowed, it could have led to absurd results and placed unreasonable and unjustifiable burdens on the mortgagee. 

This case is therefore a good example of the Courts taking a common sense approach to the rights and obligations imposed in such situations - as the Court decided it was not constrained by the mortgage terms and conditions in determining whether the mortgagee had discharged its duty to act reasonably.  This will be reassuring confirmation of the position for lenders, landlords and licensors alike who can each find themselves from time to time having to deal with goods left behind by former occupants.

If you would like further advice on the above or any other property disputes, our Property Litigation Department would be happy to have an initial conversation without charge to see if we can help. If you would like to speak to someone in our Property Litigation Department, please call either Sian Gibbon on (0)1392 334101 or Robert Horsey on (0)1884 203086.

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