Q&As

What steps can an equitable chargee take to enforce their charge?

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Published on LexisPSL on 18/12/2015

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • What steps can an equitable chargee take to enforce their charge?
  • Question scenario
  • Equitable chargee's entitlement to possession
  • Remedies for an equitable chargee
  • Procedure for obtaining an order for sale under court direction

Question scenario

This question considers the option open to someone who has signed and agreed an equitable charge with a part owner of a property. The amount owed under the charge is now in default and the equitable chargee wants to commence possession proceedings. This Q&A considers the available remedies.

Equitable chargee's entitlement to possession

An equitable chargee does not have the remedy of foreclosure or an entitlement to possession (Tennant, Re Lloyd). See Practice Note: Equitable mortgages and equitable charges—general principles and registered land.

As such it is not possible to use the procedure in CPR 55 to bring a claim for possession in respect of an equitable charge.

See the scope of the procedure as set out in CPR 55.2 being limited to:

'(1) The procedure set out in this Section of this Part must be used where the claim includes—

(a) a possession claim brought by a—

(i) landlord (or former landlord);

(ii) mortgagee; or

(iii) licensor (or former licensor);

(b) a possession claim against trespassers; or

(c) a claim by a tenant seeking reli

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