Q&As

A property was sold at auction. However, the day prior to the sale at auction the lender obtained a possession order. Is the auction sale void?

Produced in partnership with Alistair Cantor of Cornerstone Barristers

Published on: 12 March 2024

This Q&A assumes that the mortgage is a legal mortgage; and that the mortgagee has taken no steps to enforce the possession order or to enforce a power of sale.

The remedies available to a mortgagee (ie the lender) in the event of default by the mortgagor (ie the borrower) include the right to enforce possession against the mortgagor, and to sell the property. While usually exercised in conjunction, they remain distinct remedies. In theory, a mortgagee can sell a mortgaged property without first obtaining possession of it. However, most purchasers will insist on vacant possession, and so any mortgagee selling without first having obtained vacant possession would risk breaching the contract

Alistair Cantor

Barrister, Cornerstone Barristers

Alistair came to the Bar after a career in the City of London at a major investment bank. He has practised extensively in property since the outset of his legal career and has gained wide-ranging experience in all types of disputes in the County Court, High Court, and Residential Property and Land Registration Chambers of the First-Tier Tribunal. His experience in the field includes: residential and commercial landlord and tenant; possession claims; civil fraud, misrepresentation and rescission; rent arrears and debt claims; forfeiture; trusts over land, co-ownership and ToLATA claims; service charge disputes; boundary disputes; nuisance; and dilapidations claims.

His past work in this field includes:

• The non-contentious drafting written statements of occupation contracts for a large number of major Welsh landlords following the implementation of the Renting Homes (Wales) Act 2016

• Mayor and Burgesses of the Brent London Borough Council and another v Malvern Mews Tenants Association Ltd [2020] All ER (D) 192 (Apr); [2020] EWHC 1024 (Ch): Alistair represented the successful respondent. The case raised an important point as to the position of defendants to and evidential burdens in claims for negative declarations as to the absence of legal rights.

• Providing non-contentious advice to a major private landlord on its standard tenancy documents and procedures.