The following Restructuring & Insolvency Q&A produced in partnership with Caroline Clark provides comprehensive and up to date legal information covering:
A mortgagee seeking to take possession may choose to do so as mortgagee in possession or by appointing a receiver under the Law of Property Act 1925 (LPA 1925) (commonly referred to as the appointment of a fixed charge receiver or an ‘LPA receiver’).
The powers of a mortgagee in possession are, however, not exactly the same as those of a receiver appointed under LPA 1925. A receiver appointed under LPA 1925 has the power to receive rent under LPA 1925, s 109 and the mortgagee may also delegate powers to the LPA receiver that the mortgagee enjoys under the terms of the charge. This is likely to mean that the receiver will have the power of sale, but this should always be checked as it is the terms of the charge that grant the power of sale, not LPA 1925. A mortgagee in possession will have the powers granted by the terms of the charge, which are likely to include the power of sale. For more information, see Practice Note: Mortgagee in possession.
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