“But I’ve done nothing wrong!” says the young woman between floods of tears. “I’ve paid my rent on time and I still have three months to go on my agreement. You can’t throw me out on the street just like that.”

“Unfortunately I can and I have no choice,” says the judge. He is right.

This scenario is repeated on an almost daily basis up and down the country. With all the protection there is for tenants against unscrupulous landlords, how can it be that an innocent tenant can be summarily thrown out of their accommodation? Actually, it has less to do with the landlord than the manner in which the landlord acquired the property in the first place.

There are two types of residential mortgage — a straightforward one where the borrower intends to live in the property themselves; and a buy-to-let mortgage, often at a higher rate of interest, where the borrower intends to let out the property as an investment. It is the former type that causes problems.

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• Death and the law

Virtually every straightforward mortgage contains a clause that requires the borrower not to "assign, sublet or part with possession" of the property. In other words, the borrower is prevented from granting a tenancy of the property to someone else without the consent in writing of the lender.

Breach of this condition would alone justify the lender in seeking a possession order against the property. However, where it more commonly arises is when the borrower gets into arrears with the mortgage. Usually, unknown to the lender, the borrower has indeed sublet the property to someone else and is pocketing the rent rather than paying part or even all of the mortgage payments. Where does that leave the poor old tenant as far as the lender is involved? Up the creek, without paddle.

Noticing the arrears, the lenders start possession proceedings and then discover that someone other than the borrower or his or her family are living in the premises. As far as the lenders are concerned, the tenant is an "unlawful occupier" and there is nothing the tenant can do to prevent the lender from taking possession of the property following a court order for possession.

It may seem unfair, but lenders would simply not lend money if they found that they could not realise their security in the event of default because a tenant who they did not sanction is sitting in the property claiming rights to remain. The tenant has to go with virtually no notice.

A notice of possession proceedings against the borrower is sent by the court, addressed to “all occupiers”, before the proceedings are heard, but it is just about the only notice the tenant will get. Can the tenant do anything about it? As far as keeping them in the property is concerned, the short answer is no. They could sue the landlord for damages for breach of the tenancy agreement but I have never seen it done.

There is not likely to be a change in the law that would allow the tenant to remain in the property on terms, as this would kill the mortgage market stone dead. However, what about a change to make any agents who acted for the landlords as liable in damages as the landlord? What about imposing an obligation on both agents and landlords to disclose whether there is any borrowing on the property that may affect the proposed tenancy? Making it a criminal offence to sublet premises in breach of a mortgage agreement? Anything, really, to avoid the misery suffered by hundreds of innocent tenants every year.

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