Taking action to repossess a property involves a number of stages, which can take a few weeks or months. You may be able to stop the process at any stage, so get advice immediately and keep negotiating with your lender.
Reasons for repossession
There has to be a legal reason for your home to be repossessed. The most common reason is if you don't pay your mortgage or other secured loan taken out against your home. Leaseholders can also to be evicted by their freeholder if they break the conditions of their lease, such as not paying ground rent or service charges, but this is unusual.
If you have been declared bankrupt, the trustee in the bankruptcy or the Official Receiver can take steps that lead to the repossession of your home.
The only other way in which you can be made to leave your home is if the Housing Executive or another public body makes a 'compulsory purchase order' to buy your home.This normally only happens if a major local development, such as a road widening scheme, is planned. If you are in this situation you will be entitled to compensation.
Notice from your lender
Firstly, your lender or their solicitor should contact you, asking you to put the problem right. If they are not happy with your response, they should write to you, warning you that they are going to start court action. You should not ignore this contact. If you communicate with your lender, you may be able to stop or delay the start of legal proceedings.
Your lender will need to apply to the court for a possession order to start the proceedings.
What your lender must do before taking court action
There are certain steps that your lender should take before submitting a possession claim to the court.
These steps are outlined in the Pre-action Protocol for Possession Proceedings and apply to all residential mortgages. The protocol, however, doesn’t apply to ‘buy-to-let’ mortgages.
The Pre-action protocol basically sets out what the court expects from your lender and you before any court action is taken. The steps are there to ensure that you and your lender act fairly and reasonably with each other and make reasonable effort to reach an agreement before going to court.
Although there are no penalties for not complying, the court will want to see that the lender has adhered to the protocol. The court may expect, for example, that:
- you and your lender discuss the cause or the arrears, your financial circumstances and proposals for repayment
- your lender advises you to contact the Housing Executive and refer you to get independent debt advice
- your lender considers your suggestions for repayments, such as changing the date or method of your mortgage payment
- your lender gives you reasonable time to consider their repayment proposal.
If a party to proceedings unreasonably fails to comply with the Protocol, the court may take this into consideration when arriving at a decision on the outcome of the case or on the award of legal costs.
A summons from the court
If you are unable to reach an agreement with your lender out of court, your lender may decide to apply to court for a possession order. If this happens, you will receive a Summons in the post. This explains that your lender is seeking an Order for Possession of your property. The lender's solicitor will apply for a date for the hearing a few weeks after you receive the summons. You will receive a copy of the lender's Grounding Affidavit which sets out the details of the mortgage. This will be accompanied by a Notice of Hearing which will tell you the date and time of the hearing.
Get advice immediately about what to do next if you receive any legal paperwork from your lender.