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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.
There are special rules about the procedures that must be followed at each stage - if they are not, you may be able to stop or delay the 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.
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.
If you are in arrears, you should try to pay as much as you can on a regular basis, even after court action has been started.
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. 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.
At a court hearing you and your lender will need to be able to prove that you have followed the protocol. If you are unable to reach an agreement with your lender out of court, your landlord may decide to apply to court for a possession order. The court will write to you telling you when a hearing is to take place. This is called a summons.
When you hear from the court, if you have not already done so, you should get advice immediately about what to do next.
It is very important to reply to the court. Failing to reply can harm your case. An adviser may be able to help you: • prepare for the hearing • gather evidence • negotiate with the other side • develop a defence.
At the hearing, the judge is called a Master. The Master will hear evidence from you and your lender or freeholder before making a decision. The Master has a number of options available, including: • striking it out • adjourning the case • allowing you to stay in the property provided you keep to certain conditions, such as repaying the arrears in instalments, or • giving you time to sell your property to avoid repossession, or • deciding that you should be evicted. If your name isn’t on the mortgage, yet you live in the house, you can still be involved in the court proceedings – if this is the case, seek specialist advice. If the Master decides that you have to leave your home, the court order will set a date for you to give up possession.
If you have not left by that date, your lender must apply to the Enforcement of Judgements Office before you have to leave your home.
The earlier you take action the more options you will have and the less you will have to pay in legal costs.
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