Financial difficulties can be overwhelming, and if you have fallen behind on your mortgage payments, your lender may seek possession of your property. However, lenders must follow certain legal procedures before taking such action, and homeowners have rights that can be exercised in defence of a possession claim. At Muldoon Britton, we provide expert legal advice to help you navigate this challenging process and protect your interests.

When Can a Lender Make a Claim to Possess Your Property?

A lender may initiate possession proceedings when a borrower has defaulted on their mortgage repayments. The legal basis for possession claims typically arises under the terms of the mortgage agreement and the Administration of Justice Acts 1970 and 1973, which provide courts with discretion to grant time for borrowers to resolve their arrears.

Lenders must usually apply to the court under Part 55 of the Civil Procedure Rules (CPR) for an order for possession. The Mortgage Repossessions (Protection of Tenants etc.) Act 2010 also provides certain protections if tenants are residing in the property.

 

What Pre-Action Conduct Must the Lender Comply With?

Before issuing a possession claim, the lender must adhere to the Mortgage Possession Pre-Action Protocol (MPAP), which requires them to:

• Provide clear information on the arrears and the outstanding mortgage balance.
• Discuss alternative repayment options with the borrower.
• Consider a reasonable request for a payment plan to clear the arrears.
• Provide details of free independent debt advice agencies.
• Give sufficient notice before issuing court proceedings.

Failure to follow these steps may result in the court adjourning the case or striking out the claim.

However, this only applies to residential properties, and failure by the lender to comply with the protocol will not prevent them from obtaining a possession order.  They would be penalised for any failure by the Court refusing to allow them to recover their costs of the proceedings, normally automatically recoverable under the terms of the mortgage.

 

Defences to a Possession Claim

Borrowers facing possession proceedings may have several defences, including:

1. Breach of Pre-Action Protocol – If the lender has not followed the protocol, the claim may be challenged.
2. Unfair or Irresponsible Lending – Under the Consumer Credit Act 1974, a borrower may argue that the mortgage was granted irresponsibly.
3. Unreasonable Charges – If excessive charges have contributed to the arrears, this may be challenged under the Unfair Terms in Consumer Contracts Regulations 1999.
4. Right to Time to Pay – The court has discretion under Section 36 of the Administration of Justice Act 1970 to allow the borrower time to pay if there is a realistic prospect of clearing the arrears.
5. Possession Not Proportionate – Under Article 8 of the European Convention on Human Rights, the court must consider whether eviction is a proportionate response.

What Orders Can the Court Make?

Once a possession claim reaches court, the judge has several options, including:

• Outright Possession Order – Requiring the borrower to leave the property within a specified period.
• Suspended Possession Order – Allowing the borrower to stay if they comply with a repayment plan.
• Adjournment or Dismissal – If the lender has not followed the correct procedure or the borrower has a valid defence.
• Time Order – Under the Consumer Credit Act 1974, the court can reschedule payments if the mortgage is a regulated credit agreement.

How Muldoon Britton Can Help

At Muldoon Britton, we have extensive experience in defending possession claims and advising borrowers on their rights. Our team can:

• Assess whether your lender has complied with all legal requirements.
• Help negotiate a repayment arrangement to prevent possession.
• Represent you in court to challenge an unfair possession claim.
• Advise on alternative solutions, such as mortgage rescue schemes.

If you are facing the threat of possession proceedings, seek legal advice as early as possible. Contact Muldoon Britton today to discuss your case and protect your property.