Mortgage Possession Pre-Action Protocol

An updated version of the Mortgage Possession Pre-Action Protocol has been issued and will be in use from 6 April 2011, bringing it into line with MCOB Rules.

The most significant amendments to the Pre-Action Protocol are those that now require the parties to take certain steps, rather than merely recommend they should do so. This manifests itself within the updated version where the use of the word “should” is replaced by “must”.

Also under Part 7, the heading “Alternative Dispute Resolution” is now replaced by “Further Matters to Consider Before Starting a Possession Claim”, to strengthen the emphasis that possession is very much a last resort and that a claim for possession must not be started unless all other reasonable attempts to resolve the position have failed. A fifth option for consideration is now added, this being “to make use of any Government forbearance initiatives in which the lender chooses to participate” which is in addition to the four existing options, these being;

  • Extend the term of the mortgage
  • Change the type of a mortgage
  • Defer payment of interest due under the mortgage
  • Capitalise the arrears

It is not anticipated that there will be any changes to the existing checklist. The onus on being able to demonstrate compliance remains, but given most Lenders are already complying with the Protocol in full, these changes should not require adjustment to the possession process.

Michael Bond, Associate Director