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

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

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 relief from forfeiture.

(Where a demotion claim or a suspension claim (or both) is made in the same claim form in which a possession claim is started, this Section of this Part applies as modified by rule 65.12. Where the claim is a demotion claim or a suspension claim

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