Q&As

Can a mortgagee who has not been paid simply sell the property without a court order?

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Produced in partnership with Helen Galley of XXIV Old Buildings
Published on LexisPSL on 19/06/2017

The following Property Q&A Produced in partnership with Helen Galley of XXIV Old Buildings provides comprehensive and up to date legal information covering:

  • Can a mortgagee who has not been paid simply sell the property without a court order?

We are not told what the mortgaged property is but it is assumed that it is real property, ie land.

There is no implied power of sale in favour of a mortgagee, but that does not mean that a mortgagee cannot sell the mortgaged property without seeking a court order to that effect. There may be an express right to sell contained in the mortgage deed or alternatively the mortgagee might rely on the statutory power of sale.

The statutory power of sale is now contained in sections 101 and 103 of the Law of Property Act 1925 (LPA 1925). The statutory power may be extended or varied by the express terms of the mortgage deed. See The Maule. See Practice Note: Mortgagee’s power of sale.

The statutory power contained in LPA 1925, s 101 provides that where a mortgage is made by deed, as will be the case in all legal mortgages, and the mortgage money has become due, the mortgagee has a statutory pow

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