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Sponging the blot on the law

Having your home repossessed by your mortgagee is not, one imagines, a happy experience, and not one which would incline you to act charitably towards your bank. Few are the defaulting borrowers who treat their houses to a spring clean on their final day before the order for possession is executed, apologising to the bailiffs that they don’t seem able to put their hands on any tea bags. Or indeed the kettle. It’s all been packed, you see.  A commoner experience is to find that at least some belongings have been left behind. A bin bag here, a wonky shelving unit there. There’s nothing like losing your home to make you reassess the stuff which surrounds you, and decide whether now might be a good time to de-clutter your life. And why go to the expense of hiring a skip when you can leave your mortgagee with the cost of doing it for you?

But what if, instead of leaving behind the things in your life which don’t really matter, you leave behind everything? Absolutely everything: from your bedroom furniture to your groceries cupboard to your daughter’s graduation photographs; your house left like Prince Albert’s study, everything exactly as it was when you walked, or were bundled, out the door. How is the mortgagee supposed to deal with that?

The answer is that it all simply goes to landfill. And it happens more often than you might think, the borrower convinced that his absence from the home will be temporary whilst he either arranges alternative finance, or continues to challenge the lawfulness of the warrant of possession. Challenges to this process are surprisingly rare, but this year saw two such challenges. The first, DaRocha-Afodu v Mortgage Express [2014] EWCA Civ 454; [2014] 2 P. & C.R. DG10, was heard by the Court of Appeal in March this year. The second, Campbell v Redstone Mortgages [2014] EWHC 3081 (Ch), by the High Court in September. Mr DaRocha-Afodu, a solicitor, suffered execution of an order for possession of his family home in spite of a series of legal challenges, which continued after the warrant had been executed. Optimistic of successfully overturning the warrant, and confident that he would soon be restored to possession, he failed to heed the bank’s warnings about what would happen to all his family’s belongings should he not remove them, and save for a few suitcases of items hastily taken away for immediate use, the house was left as it was. Five weeks after the warrant had been executed, everything in it was removed and disposed of.

Miss Campbell’s downfall was even more dramatic. She ran an animal sanctuary from her property and after innumerable applications to suspend the mortgagee’s warrant of possession (including on the grounds that she was a finalist on X-Factor and had secured financial support for her voluntary work from Simon Cowell) the warrant was finally executed by bailiffs undeterred by the barricades manned by protestors, including Miss Campbell’s daughter standing on the roof dressed as a chicken. Just like Mr Da Rocha-Afodu, she ignored the notices subsequently posted warning that her belongings would be removed if not collected, and even disregarded an order granting her permission to attend the premises for the purposes of clearing it, instead taking the opportunity of barricading herself in and refusing to leave.

Both Claimants sued their respective banks for conversion of their goods, both arguing that the failure of a mortgagor to remove all his belongings from his property when it was repossessed was a predictable eventuality, and it was not right to describe the bank in such circumstances as a truly involuntary bailee, subject only to the limited duties which attend such a person. It can never therefore be right to permit the bank in such a situation simply to cart an entire houseful of belongings off to landfill, without first preparing an inventory of what was present and at the very least removing the borrower’s goods into storage first.

The difficulties of an involuntary bailee’s position are rightly described in Palmer on Bailment as ‘a blot on the law’. For years the courts have struggled to chart a sensible course between the common law of conversion which often involves strict liability for loss or damage to others’ chattels, and the reasonable expectation of respect for property. Generally an involuntary bailee will discharge his duty to the owner of goods provided he does everything which is right and reasonable in all the circumstances (Elvin & Powell v Plummer Roddis [1933] Sol Jo 48). In the case of a mortgagee entering into possession, that, as the trial judges in both Da Rocha-Afodu and Campbell found, was perfectly capable of encompassing a wholesale removal and disposal of an entire family’s personal possessions provided sufficient notice had been given of the need for those possessions to be removed.

In Da Rocha Afodu the Court of Appeal had rejected the argument that mortgagees in possession occupy some special position which imposes on them a stricter duty of care, by virtue of being in the business (at least on occasion) of taking possession of property pursuant to their power of sale. The fact that a mechanism for what was to happen in such an event was provided for in the bank’s mortgage conditions did not have the effect of re-classifying a mortgagee from involuntary bailee to consensual bailee.

The fact that in that case the mortgage conditions had provided the bank with the power to do as they had was not the end of the enquiry. Any of the trigger events in the mortgage conditions is merely a starting point. The court has to go on and ask whether what the mortgagee did was, in the particular circumstances of the case, what was right and reasonable.

Of course mortgage conditions are drawn in different ways, and both DaRocha-Afodu and Campbell are important not because of their interpretative findings, but for the relief which must be felt in the mortgage industry that the business of lending can continue without the fear it may not be possible to realise their security until the borrower’s possessions have been expensively stored pending a collection which may never happen.