Q&As

Does a legal chargee have to obtain a court order to enforce an order for sale? The chargor is not in arrears but the whole debt will fall due shortly. Does the chargee have to follow the pre action protocol for possession claims based on mortgage arrears?

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Published on LexisPSL on 20/01/2016

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

  • Does a legal chargee have to obtain a court order to enforce an order for sale? The chargor is not in arrears but the whole debt will fall due shortly. Does the chargee have to follow the pre action protocol for possession claims based on mortgage arrears?
  • Statutory power of sale—can it be exercised without a court order if residential property?
  • Will the pre-action protocol for mortgage arrears apply?
  • Does the fact that the chargee is a charity have any bearing on the procedure?

Does a legal chargee have to obtain a court order to enforce an order for sale? The chargor is not in arrears but the whole debt will fall due shortly. Does the chargee have to follow the pre action protocol for possession claims based on mortgage arrears?

Statutory power of sale—can it be exercised without a court order if residential property?

If the charge is by deed the chargee will have the statutory powers re the power of sale under section 101 of the Law of Property 1925 (assuming that those powers have not been limited). See our Practice Note Legal mortgages and legal charges for more information.

In principle, the mortgagor does not need to take back possession in order to exercise their power of sale. However, from a practical perspective possession is usually sought as a first step in exercising a power of sale to 'enable the mortgagee to realise a better price for the property by being able to offer vacant possession when selling under the statutory or an express power of sale'. At which point a court order is needed so as to avoid civil and criminal offences regarding taking back possession of residential property.

We refer you to Atkins Court Forms Volume 34 paragraph 206 which explains, it is rarely necessary for a legal mortgagee to seek an order for sale, because he

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