Q&As

What is the practical procedure for mortgagees obtaining possession following arrears, where: a) property is residential and b) property is commercial?

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Produced in partnership with Georgia Whiting of 4 King’s Bench Walk
Published on LexisPSL on 27/07/2017

The following Property Q&A Produced in partnership with Georgia Whiting of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • What is the practical procedure for mortgagees obtaining possession following arrears, where: a) property is residential and b) property is commercial?
  • Residential property
  • Commercial property

This Q&A considers the procedure to be followed by a lender wishing to obtain possession of a property where the borrower is in arrears. In particular, it considers any differences in the procedure to be followed in respect of residential and commercial properties.

A mortgagee holding a legal mortgage has a right to possession of the property, although this right can be limited by contract or statute. Unless the mortgage excludes the right to possession, the right arises as soon as the mortgage is entered into.

Residential property

In terms of the practical differences between obtaining possession, the key difference is the requirement in a residential context to follow the Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property (the Protocol). See Practice Note: Pre-action protocol—possession claims based on mortgage or home purchase plan arrears in respect of residential property.

The Protocol applies to:

  1. first charge residential mortgages and home purchase plans regulated by the Financial Services Authority under the F

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