Preventing court action

This content applies to England only.

Housing laws vary between England and Scotland. Get advice relating to Scotland

Lenders can take legal action to get back any money you owe them, for example if you have mortgage arrears. If your property is leasehold, the freeholder can also take you to court if you break one of the conditions of your lease.  

In either situation, it may be possible to prevent court action and avoid going to court if your lender or freeholder wants to evict you and repossess your home.

Where can I get help?

If you need help, you can use our directory to find face-to-face advice services in your area. Our advisers may be able to help you to negotiate with your lender or freeholder to avoid losing your home as well as saving you the time and expense of going to court.

You may be entitled to legal aid and to be represented by solicitor. Use the Community Legal Advice Directory to find legal advisers in your area.

What can I do if my lender is trying to evict me?

If you are having problems paying your mortgage, your lender should follow the steps outlined in the pre-action protocol for mortgage arrears cases before they consider taking you to court.

Lenders should only start court action to repossess your home as a last resort. They usually prefer to sort out your payment problems in other ways. Your options will probably depend on: 

  • what type of mortgage you have
  • how far behind you are with payments
  • the reasons for your arrears (such as losing a job) and whether your financial difficulties are likely to be temporary or ongoing for the foreseeable future.

Letters from your lender

If you fall into arrears with your mortgage your lender should write to you giving details of the arrears and the total amount outstanding on your loan. Your lender should also indicate whether interest or charges will be added to the arrears. The letter from your lender will also normally ask you to contact them to discuss:

  • your financial circumstances, and
  • your proposals for catching up on the missed payments.

Responding to your lender

You should always respond to letters or phone calls from your lender about arrears. If you ignore letter from your lender, they will be much more likely to take you to court.

If your lender has not yet started possession proceedings, you should write a ‘holding letter’ to your lender immediately. This will give you time to speak to an adviser. The letter should outline why you have gone into mortgage arrears, explain that you are making every effort to clear the arrears and say that your adviser will write to them again with a more specific proposal in the near future.

If you are not sure how to respond, use our directory to find face-to-face advice services in your area. They may be able to help you come up with a proposal to control, and perhaps reduce the level of your arrears to allow you to keep your home.

Once you have written to your lender with a specific proposal for paying off the arrears, your lender will normally respond quickly. It is very important that any proposals you make are realistic for you in your circumstances. If your proposals are accepted then no further action should be taken unless you breach the agreement.

Selling your home to pay your mortgage

In some circumstances, making/or catching up with repayments on your mortgage in the future may not be realistic. Rather than handing your keys to the lender or facing repossession proceedings, it may be advisable for you to try to sell your property yourself to get the best price possible. Before taking this decision it is important to get advice. An adviser may be able to discuss alternatives and/or negotiate with your lender.

Lender’s response to your proposals

If the lender does not agree to your proposals then they should write to you with reasons why, within 10 workings days. At this stage your lender may suggest an alternative proposal for paying the arrears, or tell you that they have referred the matter to their solicitors to start repossession proceedings.

It is always best to attempt to negotiate with your lender before solicitors are involved. Use our directory to find face-to-face advice services in your area.

Letters from your lender's solicitor

When solicitors get involved, they will send you a letter giving you seven days to pay off all your arrears or make a proposal for doing so. If they are not satisfied with your response, they can usually start court action without any further warning.

It is definitely still worth trying to negotiate at this stage. Even if you can't come to an agreement, the court is more likely to be sympathetic if you have made an effort to sort things out before legal action is started. An adviser can help you do this - use our directory to find an adviser in your area.

What can I do if the freeholder is trying to evict me?

It is very rare for a freeholder to evict a leaseholder. This can only happen if you break one of the conditions of your lease (such as not paying the service charges or ground rent) and if your lease has a clause that says that it can be ended (forfeited). In any event a freeholder cannot evict you without first sending you a formal demand for payment and then obtaining a possession order from the court.

If the court action has not yet started, it may even be possible in some cases to put the problem right by paying off what you owe and avoid having to pay court costs as well.

You should get advice immediately if your freeholder threatens you with repossession. If your freeholder tries to evict you without following the correct procedure, it may be a criminal offence.

What should I do if the case does go to court?

If you have not been able to stop your lender or freeholder from starting court action, this doesn't necessarily mean that you will lose your home, but it's still worth trying to negotiate a solution before the hearing as the lender or freeholder may agree to withdraw their court action. At the hearing, the court will listen to both sides and will decide what should happen to your home.

You should get advice before the case goes to court. The available options may depend on the reasons why you have been threatened with repossession. An adviser can explain your options and whether the court is likely to allow you to stay in your home.

Aren't there any simpler options?

If you are faced with repossession, it is very important to be cautious and always get independent advice before you make any decisions. There are other options to repossession. Although these may sometimes seem like a good idea, this is not necessarily the case. For example:

  • if you sign up to a private sale and leaseback schemes (where your home is bought by a company which then rents it back to you) will usually make problems worse in the long run. You will become a tenant with few rights, and you can easily be evicted. 
  • Government-run sale and leaseback schemes (where you sell a percentage of the value of your property to a housing association) are generally safer but this may not be suitable for everyone who is faced with repossession - and you will no longer own all of your home.
  • giving your keys back to your lender, will nearly always make your problems worse in the long run as you will continue to be liable for the mortgage until the property is sold.

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