Mortgage in Debt or in Arrears

Section 97 of the Land and Conveyancing Law Reform Act 2009 stipulates that a mortgagee(lender)is unable take possession of registered or unregistered land unless there is a court order to do so.

The only exception to this is if the mortgagor(borrower) consents in writing to possession.

Section 101(1) of the 2009 Act does provide several forms of protection to property owners who are struggling to repay their mortgage.

It provides the following:

  1. An application for a court order and without prejudice to the generality of Section 97(2) 100(3) where it appears to the court that the mortgagor is likely to be able within a reasonable period to pay the arrears including interest due under the mortgage or to remedy any breach of obligations arising under it, the court may:
     – Adjourn the proceedings.
     – On making the order or at any time before enforcement or the implementation of such order,
            i.  Stay the enforcement into implementation.
           ii.  Postpone the date of delivery of possession to the mortgagee, or
          iii.  Suspend the order.

For such a period as it thinks is reasonable and if an order is suspended the court may subsequently review it.

All of the above protections greatly help a mortgagor who may be in difficulty paying with their mortgage re-payments.

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