ADVICE GUIDE: Rita Jackson explains what happens if you break the terms of a mortgage possession order. For Rita’s guide to what to do if you are struggling with your mortgage read HERE.
If you break the terms of a suspended order – for example, you are late or miss a payment or you are still in occupation after the date for possession expires – the lender can apply to court for a possession warrant – an order entitling a bailiff to evict you and change the locks. You should get a notice in the post.
Dealing with a possession warrant
If a warrant has been issued and the lender will not agree in writing to withdraw it then you should apply to court as soon as possible on form N244.
Ask for an order to
- ‘Stay the execution of the warrant pending the hearing of the application’ – this effectively stops the bailiff visiting to change the locks while the Court is trying to find time to hold a hearing;
and - ‘Vary the terms of the possession order’ to reflect your new payment/sale proposal or to give you more time to leave; or
‘renew the terms of the suspended order’, use these words if you can afford to go back to your previous arrangement; or
‘set aside the possession order’. For example, if it was obtained without your knowledge and the arrears are very low
Use the statement space on the form to explain:
- what went wrong with your payments since the case last was in court;
- why you are making the application;
- why you think that there are new terms that will enable you to clear the mortgage and arrears within a reasonable period of time; and
- explain if you have children or a disabled household member if this makes it harder to find a new home or to move quickly.
Do attach your budget or other evidence to support your application.
It is better to attend the court to issue your application rather than posting it. The court clerk may be able to give you a date for the hearing and will confirm the correct fee for the application. You can download form EX160 & the civil fees guide from the court service website. These explain about court fees, exemptions and refunds. Courts are very strict about proof of income and require original payslips, benefit awards and bank statements that are not more than a month old. If you cannot produce them they will insist you pay the fee and apply for a refund at a later date.
Attending Court
You will need to attend the hearing for your application unless your lender writes to tell you the warrant has been withdrawn. Prepare in the same way as preparing for a possession hearing only this time you will be asked to speak first. Do make regular payments while you wait for a hearing and take proof to court.
What happens if the bailiffs come?
Bailiffs executing a warrant for possession can break in even if you are not in the property when they call. They may send for the police if they meet resistance.
If bailiffs visit while you are waiting for your hearing to suspend a warrant you should ask them to call the court to confirm you have an application in process. They should then go away.
If you have not made an application by the time the bailiffs visit then the court is not likely to set aside a warrant after the locks have been changed unless you can show there has been ‘oppression’ – for example, the lender did not contact you to inform you a bailiff was being instructed and you did not get a letter from the court, or you have in fact been making payments, or the eviction has gone ahead despite you paying all of the arrears beforehand.
Access to your home
You do not have to leave until your lender has executed a bailiff’s warrant. Afterwards you won’t be able to retrieve your belongings without your lender’s permission. Lenders have different policies: some may agree one or two visits in the days and weeks after the eviction but with their agent present to make sure you only remove your belongings and do not attempt to move back in or cause damage. They will want to clear the property as soon as possible to enable resale. They may dispose of what appears to them to be rubbish or not worth the cost of storage especially if they cannot easily contact you to discuss what to do. If they do remove or store your belongings you are likely to get the bill and they don’t need to shop around to find a good deal.
Is it too late to save your home?
At this stage if you want your home back you are going to need to redeem the mortgage – i.e., clear the mortgage arrears and legal costs – before the lender has a chance to exchange contracts with a new buyer. You are going to have to make sure the lender and their solicitor are kept fully informed and agree a timescale or you may find a sale goes ahead despite your best efforts.
More information about your lender’s right to sell the property and pursue you for any shortfall is available on the National Debtline website. The Shelter website has information about steps your lender may take to collect rent from a tenant pending repossession and sale.
