Steps required before court action

This content applies to England only.

Housing laws vary between England and Scotland. This page applies to England only. Get advice relating to Scotland

Lenders should follow the steps outlined in a special 'pre-action protocol' before they consider taking you to court to repossess your home because of mortgage arrears. If the pre-action protocol is not followed, you may be able to ask the court for an adjournment – this has the effect of delaying the repossession process until it has been complied with.

What is the purpose of the pre-action protocol?

The pre-action protocol aims to ensure that lenders take all reasonable steps to avoid repossession and only take homeowners to court over mortgage arrears as a last resort. It encourages lenders to explore all the available options for paying off arrears and avoiding future payment problems.

What steps should my lender take?

Before starting a court claim for possession, your lender should:

give you information about the total amount of arrears, the outstanding balance on the mortgage, and any interest or charges that you have to pay
discuss the reason for your arrears, your financial circumstances, and whether the situation is temporary or long-term
consider any requests you make to change the regular date of payment or method of payment
discuss your proposals for repayments of the arrears
if your proposals are not accepted, give reasons in writing within 10 working days and allow you a reasonable amount of time to consider any proposal made by them
advise you to contact the council’s housing department for advice
refer you to an independent debt adviser if necessary.

From 1 October 2009, lenders are also legally required to:

complete a checklist to show that they have followed the pre-action protocol
notify the housing department of the local council within five days of receiving notification of the date of the court hearing, so that the council will be aware of your situation if you need to apply as homeless
notify everyone living at the property (including tenants, if the landlord has rented out the property) of the date and time of the repossession hearing.

What steps should I take?

You are also expected to take reasonable steps to discuss your situation with your lender. These discussions are likely to focus on whether the causes of your arrears are temporary or long-term and whether the arrears can be repaid within a reasonable period of time. Your lender should communicate with you in a way that is clear and easy to understand. It is essential that you attempt to negotiate with your lender - ignoring their calls and letters will make matters much worse. They may be able to help you in a variety of ways, for example by making changes to your mortgage to reduce your monthly costs, or offering assistance through the Homeowners Mortgage Support scheme.

If you do not keep to any agreement that you make, your lender should give you 15 working days notice in writing before starting a claim for possession. As soon as you receive any such notice you should get advice - contact Shelter's dedicated homeowner helpline on 0300 3300 515 or use our directory to find face-to-face advice services in your area.

You may also be entitled to legal aid and to be represented by solicitor.

When should legal action be postponed?

Your lender should consider not starting a possession claim if:

you have made a genuine complaint to the Financial Ombudsman Service (FOS) regarding the potential possession claim
you have made a claim under a mortgage payment protection policy and you are likely to get a payment. If the policy is not likely to cover the full installments, you will need to be able to show that you can meet any shortfall.
you have applied for support for mortgage interest (SMI), it is likely that you will receive a payment and you will be able to pay any shortfall yourself
you are taking active steps to sell the property at a realistic price.

What do I have to do if the lender agrees to postpone possession while I try to sell my home?

If your lender agrees to postpone a possession claim while you attempt to sell your home, you should provide your lender with:

the home information pack
the particulars of sale
details of your estate agent and solicitor (or other licensed conveyancer).
details of any offers received.

You should also authorise the estate agent and solicitor (or other licensed conveyancer) to communicate with your lender about the progress of any sale.
If your lender refuses to postpone legal action they should give their reasons at least 5 working days before starting proceedings.

What happens if the pre-action protocol is not complied with?

Both you and your lender may be required by the court to explain how they have complied with the protocol. If the pre-action protocol has not been followed then it may be possible to ask for an adjournment. Get advice before the court date if you think this might be the case. Contact Shelter's dedicated homeowner helpline on 0300 3300 515 or use our directory to find face-to-face advice services in your area.

Alternatives to court action

It may be possible to avoid repossession by reaching a settlement with your lender. In addition to reaching an agreement about repaying the mortgage arrears, it may be possible to discuss other options such as:

extending the term of your mortgage (which will reduce your monthly payments)
changing the type of mortgage you have, for example by converting a repayment mortgage to an interest only mortgage
deferring interest payments due under your mortgage, or
adding your arrears onto your mortgage, this is known as 'capitalising' the arrears.

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