The Court of Appeal has just considered the duties of a mortgage company when dealing with a mortgagor's personal possessions left in a property after repossession.
When a mortgagee repossesses residential property the aim is to obtain vacant possession. Because the possession has been obtained against the will of the legal owner personal possession will often still be in the property on execution. The mortgage's terms and conditions will provide how to store, and ultimately, dispose of these goods. What happens if the mortgagee does not follow the mortgage conditions and disposes of the goods in a different way?
In da Rocha and Another v Mortgage Express Ltd and Another the court confirmed that in this situation the mortgagee in possession was an involuntary bailee and that the test for the discharge of duty was 'had the bailee done what was right and reasonable in the circumstances of the case'?
The mortgagee did not need to precisely follow any procedure set out in the mortgage conditions for dealing with unclaimed personal possessions when discharging that duty.
Property practitioners should note that mortgagees cannot be bound to the contractual terms when other reasonable steps have been taken to liaise with the mortgagor.
Michael Paget appeared on behalf of the mortgagors.'