Q&As

An order for sale has been made to enforce a charging order against a debtor who owns the property subject to mortgage absolutely. Possession has been ordered by the court against the defendant by a date which has now expired. However, there are sitting tenants in the property (pre-dating the order) and the order for sale is without prejudice to their rights. What can the creditor do? Should a possession order be sought against the tenants and what would the procedure be?

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Published on LexisPSL on 13/03/2020

The following Property Disputes Q&A provides comprehensive and up to date legal information covering:

  • An order for sale has been made to enforce a charging order against a debtor who owns the property subject to mortgage absolutely. Possession has been ordered by the court against the defendant by a date which has now expired. However, there are sitting tenants in the property (pre-dating the order) and the order for sale is without prejudice to their rights. What can the creditor do? Should a possession order be sought against the tenants and what would the procedure be?

Charging orders may be enforced by an order for sale of the charged property, following the process in CPR 73.10C and CPR PD 73 (paras 4.1–4.5). Appendix A to CPR PD 73 sets out standard forms of order for sale, although these are not prescribed and may be adapted by the court.

The standard order for sale requires the defendant to deliver possession of the property to the claimant by a certain date. A possession order can be enforced by a warrant of possession, entitling the bailiff to evict anyone found on the premises. See: R v Wandsworth county court ex parte Wandsworth London Borough Council and Enforcement of possession orders: Claims to the Possession of

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