Mortgage possession claims: rights, duties, mortgagor defences, tenant protections, pre-action protocol and procedure (England and Wales)

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Practice notes

FORTHCOMING CHANGE

On 27 October 2025, the Renters’ Rights Act 2025 obtained Royal Assent. For guidance on the Act’s effect on residential tenancies in England, see Practice Note: Renters’ Rights Act 2025—key provisions. This Practice Note sets out mortgagee possession claims, including the mortgagee’s right to seek possession and their duties once in possession, the mortgagor’s right to request time to pay under the Administration of Justice Act 1970, the position of any tenants of the mortgagor, the pre-action protocol, and the process for bringing a claim. For guidance on the range of remedies available to mortgagees, see Practice Note: Mortgages and land—enforcement of mortgages and legal charges over land.

The right to possession

Where a mortgagor has fallen into default, the mortgagee will often wish to sell the property and may first need to secure possession. However, it is also possible to:

sell without taking possession: a sale subject to a tenancy can be especially attractive for a commercial property let at a level above market rent
take possession without selling: the mortgagee may let a vacant property or collect the rent on a tenanted one

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Web page updated on 21/05/2026

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