What can the court do?

What can the court do?


If your lender applies for a possession order, it doesn’t necessarily mean that the court will agree to evict you. It’s never too late to get advice – an adviser may be able to help you present your case in court.


After the judge has listened to you and to your lender or freeholder (the claimant) and looked at all the information, s/he will decide to:

  • adjourn the case, or
  • strike out (dismiss) the case, or
  • make an outright possession order, or
  • make a suspended possession order, or
  • make a time order, or
  • make a money judgment.


What does ‘adjourning the case’ mean?


At the first hearing, the judge may feel that the case can’t be decided on the day and that the court’s decision should be delayed. This is called adjourning the case. A case can be adjourned indefinitely or for a fixed period of time.

This might happen because:

  • the judge needs more information or evidence from you or the claimant before making a decision
  • you need more time to raise a lump sum to pay off the arrears
  • you are selling your home and need more time to complete the sale.

If the case is adjourned you may be given a new hearing date. Alternatively, the claimant may have to apply for a new hearing after a fixed period of time or if there is a change of circumstances. If you have mortgage arrears, you may have to pay an amount off the arrears each month as a condition of the case being adjourned. In the meantime, you have the right to remain in your home and you cannot be evicted.


What does ‘striking out the case’ mean?


The judge may decide that your lender’s claim should be ‘struck out’ or dismissed because there is no reason why you should be evicted.

This might happen if:

  • the claimant has not followed the correct procedure for bringing the case to court
  • the claimant or their representative does not attend the hearing
  • the arrears are cleared.

If the judge strikes out the case, you have the right to stay in your home. If the claimant wants to evict you, they will have to start the court process again from the beginning.


What is an ‘outright possession order’?


If there is no prospect of you being able to resolve the matter, or your circumstances are unlikely to improve, the court may decide to grant an outright possession order.  An outright possession order means that you won’t have the right to live in your home after the date of possession given in the order. This is usually 28 days after the court hearing. If you think you need more time, tell the judge at the hearing. You may be given more time if you are in a difficult situation, for example, you are ill or you have young children.

Even if you have been given an outright possession order, you may still be able to negotiate with your lender to persuade them not to evict you. You can also ask the court to suspend an outright possession order.

If you don’t leave by the date in the court order, the claimant can apply to the court for a warrant for the bailiffs to evict you. You can’t be physically removed from the property by anyone other than the court bailiff. It is often only a matter of days before the bailiffs come. They can remove you and your family from the property, but they can’t use violence to do so.

If you have been given an eviction date, you can apply to the court to stop or delay the eviction if there is a strong reason to do so, for example, you didn’t receive the court papers. You can apply right up to the date of eviction, but it’s best to apply as soon as you hear from the bailiffs.  Seek urgent legal advice if you receive a Notice of Eviction from the county court.


What is a ‘suspended possession order’?


In many cases, and depending on your particular circumstances, the court will decide to grant a suspended possession order.  A suspended possession order may be granted if the judge thinks that the claimant is entitled to repossess your home, but it’s not reasonable to do so immediately because of your circumstances. You will be allowed to stay in your home provided you keep to certain conditions. Often it is a condition of a suspended possession order that you keep up with ongoing mortgage payments and also pay an agreed amount each month towards the arrears.

The conditions will be explained to you in the hearing and in the court order. If you don’t keep to the terms of the order, the claimant can apply to the court for the bailiffs to come and evict you. This could happen very quickly. You will receive a letter from the court bailiffs giving you an eviction date and time. You can apply to the court to stop or delay the eviction if there is a strong reason to do so, for example your circumstances have changed and you are now able to make the mortgage payments. You can apply right up to the date of eviction, but it’s best to apply as soon as you can once you hear from the bailiffs.


What is a ‘time order’?


If you have a secured loan or second mortgage, the court may be able to reduce your payments by either:

  • changing the interest rate on your loan, or
  • lengthening the term of the loan.

This is called a time order. You will need to tell the judge at the hearing that you want a time order. A time order can only be granted for certain types of loan, depending on when the loan was taken out and the amount you borrowed. If you are not sure whether you can get a time order, contact a local advice centre.


What is a ‘money judgment’?


The claimant can ask the court for a money judgment to be registered against you. This allows your lender to recover all of the money owed under the mortgage, not just the arrears. A money judgment may make it difficult for you to get credit in the future.


Can the order be changed?


In some circumstances, you can ask the court to cancel the order. This is only likely to be successful if the order should not have been made in the first place.

This might be because:

  • you didn’t receive the court papers,
  • you didn’t know you had a right to defend the case,
  • you didn’t attend the court hearing,
  • you didn’t reply to the court in time and you had a good reason for not replying. If you had replied, the court may have made a different order or made no order at all.

You can also ask the court to change the terms of a suspended possession order if your circumstances change. For example, if you can’t keep up the payments because you’ve lost your job. It will be easier to do this if you have kept to the conditions and the claimant agrees to the change.

To cancel, suspend or vary the terms of an order, you will need to apply to the court by filling in a specific form. You may also have to pay a fee, although if you are claiming benefits or you are on a low income, you may not have to pay. The court will set a hearing date when your application will be considered by the court.  You must attend the hearing.  An adviser can help you fill in the application form.


Will I have to pay court costs?


Probably. If a lender starts legal action because you are in arrears, the lender will normally simply add its legal costs to your mortgage debt. In some circumstances, the court can stop your lender from doing this. Get advice if you are concerned that this may happen.



Phone an adviser

If you have a housing problem, call our expert housing advice helpline
08000 495 495


Email an adviser

If you have a non-urgent problem and would like to speak to an advisor
email us

We are sorry that we cannot provide this information in Welsh, however if you would like to speak to an adviser in Welsh please contact 08000 495 495.


Possible defences

Possible defences : how can I argue against repossession?


If your lender has started court proceedings to repossess your home, you might still be able to keep your home if you can show the court that you have a legal defence to the eviction.

Remember: you should talk to an adviser as soon as you can if you’re facing court proceedings.



What is a defence?


A defence is a legal reason why you should not be evicted. You might have a defence if:

  • you don’t agree that you owe as much as the lender says
  • you have repaid the arrears before the hearing
  • the court papers are incorrect or incomplete
  • the lender can’t prove why you should be evicted
  • you took out your mortgage or secured loan based on bad advice.

If you don’t agree with the amount of arrears


If you do not agree with how much the lender says you owe, you should make sure you tell the court.

Show proof of the payments you have made, such as your bank statements or paying-in slips. Your lender should also provide details of payments they claim you have missed.

The judge may adjourn (postpone) the case and set a new hearing date. This allows time for you and your lender to prove the amount of arrears.

If your case is adjourned, you can continue to negotiate with your lender and make payments to reduce the arrears before the case comes back to court.


If you can pay off the arrears before the court hearing


Tell the court if your circumstances have improved recently. Show the judge any evidence of this. For example if you have:

  • found a new job
  • borrowed a lump sum from family or friends
  • inherited some money
  • given up running a car or taken in a lodger to improve your finances

If all the arrears have been cleared by the time of the court hearing, the case will be dismissed. However, you will still have to pay the lender’s legal costs for bringing the case to court. These will be added to your loan.


Is you think the court papers are incorrect


If the lender doesn’t complete the particulars of claim correctly, the judge may not allow them to present any new information at the hearing. In some circumstances, the claim may be dismissed and the lender will have to reapply to the court to evict you. You should not have to pay their legal costs.


If your lender cannot prove the claim


If the claimant cannot prove the reason why they want to evict you, the court will dismiss their claim for possession. You should not have to pay the claimant’s legal costs.


If you were given bad advice


This defence is called ‘undue influence and misrepresentation’. It can only be used in special circumstances. It concerns the way in which the loan was given to you or the advice you were given when the loan was taken out. For example, it may be that you were given bad advice and, had you had correct advice you wouldn’t have taken the loan out.

If undue influence and misrepresentation can be proved, the case may be dismissed. This is a complex area of law, so get advice if you think it could apply to you.


Do I have another defence?


The court may decide to adjourn a case or delay an eviction if:

  • you have an outstanding benefit claim that will clear or significantly reduce the arrears
  • you are selling your home and the proceeds from the sale will clear the arrears, but you need more time to complete the sale
  • you are arranging to clear the arrears soon
  • you are having difficulty finding somewhere else to live
  • you can prove that you will have sufficient funds to clear or significantly reduce the arrears in the near future.

How do I tell the court I think I have a defence?


If you think you have a defence, you should say so when you return your defence form after you receive the claim form from the county court. Contact a local advice centre if you need help filling in the defence form. It’s important to give as much information about your defence as you can. If you don’t, the judge can decide not to allow you to give any new information at the hearing.

You should also make sure you go to your court hearing. You have more chance of keeping your home if you attend.

Take someone with you if you don’t feel able to go alone.



Phone an adviser

If you have a housing problem, call our expert housing advice helpline
08000 495 495


Email an adviser

If you have a non-urgent problem and would like to speak to an advisor
email us

We are sorry that we cannot provide this information in Welsh, however if you would like to speak to an adviser in Welsh please contact 08000 495 495.

Getting ready for court

Getting ready for court action


If you are a homeowner, you can only be evicted if the court makes an order telling you to leave. This section explains what happens once your lender has applied to the court to evict you.

If you’ve had a letter from the court contact Shelter Cymru. It’s important to get advice as quickly as possible about what is happening and what you can do about it. An adviser can explain what will happen in court. They can also check if there’s a good reason why you shouldn’t be evicted from your home (ie whether you have a defence) and continue to negotiate with your lender.



How will I find out about the court date?


After the lender applies to the court for possession of your property, the court will write to you telling you when the court hearing will be and send you the claim form. You should have at least 21 days’ notice of the hearing date, but you may be given more notice. You will also receive the ‘particulars of claim’, which explains why the lender wants to evict you.  If you’ve had a letter from the court you should get advice as soon as possible.


How should I respond?


The court will also send you a ‘defence form’. This is for you to tell the court about:

  • your financial situation
  • any offers to repay the arrears
  • any other information that you think the judge needs to know, e.g. why you missed payments.

It is important that you return the defence form to the court within 14 days. This is your opportunity to tell the court about your situation. Keep a copy of it. An adviser can help you to fill the form in. The judge will look at both the particulars of claim and defence form before the hearing. Even if you do not return the defence form, it is important that you attend the hearing.


What do I need to do before the hearing?


Before the hearing you need to:

  • get advice or see a solicitor. Some courts have court duty help desks on the day of the hearing but you shouldn’t rely on there being one in your court
  • complete the defence form you received from the court
  • keep negotiating with your lender. If you can reach an agreement before the hearing, the case might not go ahead
  • collect together any relevant documents that you think the judge might want to see e.g. pay slips, bank statements, evidence of any lump sum payments due to you which you could use to reduce or clear the arrears
  • prepare a detailed breakdown of your household income and expenditure (use our budget planner to help you)
  • continue to make regular payments and try to reduce your arrears
  • find out where the court hearing is taking place
  • prepare notes of what you want to say at the hearing
  • arrange for a friend, adviser or solicitor to come to the hearing to help you.

What if I need more time?


If you think you need more time to prepare for the hearing, you must still attend the hearing, but can ask the court to put back the date of the hearing. This is called an adjournment. The court will need a good reason to agree an adjournment.

You might be able to adjourn the hearing if you:

  • have been ill and unable to prepare for court
  • were on holiday when the claim form arrived and you have only had a few days notice of the hearing
  • need more time to get legal advice
  • have had a change of circumstances which will improve, or even resolve, the situation.

If you are in arrears and you cannot clear the arrears in full, or if your lender won’t accept an offer to repay the arrears in instalments, the court hearing will go ahead. You can continue to negotiate with your lender right up until the date of the court hearing



Phone an adviser

If you have a housing problem, call our expert housing advice helpline
08000 495 495


Email an adviser

If you have a non-urgent problem and would like to speak to an advisor
email us

We are sorry that we cannot provide this information in Welsh, however if you would like to speak to an adviser in Welsh please contact 08000 495 495.


Your credit rating

How will my credit rating be affected?


People with a history of debt problems often find it difficult to get a tenancy or mortgage. They usually check your credit history with credit reference agencies such as Experian and Equifax.

You can write to the credit reference agency asking for a copy of the information they hold on you. You normally have to pay a small fee, but may not have to pay if a specialist adviser does this for you. The agency should send you a copy of the information they hold on you within seven working days, and information about how you can change the information if it is not correct. If the agency refuses to change information that is incorrect, get advice.

You may be able to complain to the Information Commissioner’s Office.



Phone an adviser

If you have a housing problem, call our expert housing advice helpline
08000 495 495


Email an adviser

If you have a non-urgent problem and would like to speak to an advisor
email us

We are sorry that we cannot provide this information in Welsh, however if you would like to speak to an adviser in Welsh please contact 08000 495 495.


Repossession by a landlord’s lender

If your home is being repossessed by a landlord’s lender


Your landlord’s lender may try to repossess the property you are renting if your landlord does not keep up with their mortgage payments. Tenants who do not have a tenancy which is binding on their landlord’s lender (see below) are in a weak position in this situation, although, following a change in the law in October 2010, most private tenants do now have the opportunity of applying for the eviction to be postponed for up to two months.


To repossess the property from the landlord, the lender first has to arrange a court hearing and then get a court order.

In every case, lenders must send a notice to the property before the repossession hearing, addressed to ‘the tenant or the occupier’. They have to do this within five days of starting the court proceedings. Always make sure you open post addressed to ‘the occupiers’ – do not assume that it is junk mail!

In many cases, even if the court has already made a possession order, the lender must also send a second notice to the property to inform you that they are going to ask the bailiffs to carry out an eviction.



How can an adviser help?


A housing adviser may be able to help you work out:

  • what stage of the repossession procedure has been reached
  • whether there is any possibility of stopping or delaying the eviction (see below)
  • whether your tenancy is binding on the landlord’s lender (see below)
  • whether you are entitled to help from the council if you lose your home
  • what your alternative housing options are.

If you know that repossession proceedings have been started, do not delay getting advice. You will need to act very quickly to have any chance of keeping your home. Visit advice near you to find your nearest advice surgery.

The Government has produced guidance to inform lenders, landlords and tenants of their new rights and responsibilities.


Can people with mortgages legally grant a tenancy?


Yes. But only if only their mortgage deed says it is allowed and/or they have their lender’s permission. Most mortgage agreements do not allow tenancies to be granted without permission, and many lenders will try to repossess the property if they find out that this has happened.


What about Buy-to-Let mortgages?


If your landlord bought the property through a Buy-to-Let mortgage, you should have been given written notice explaining this at the start of your tenancy. If this is the case, you probably have no right to stay in the property after it is repossessed by the lender.


Is my tenancy binding on the landlord’s lender?


In very limited circumstances, your tenancy may be binding on the landlord’s lender. This means the lender will become your landlord after the repossession and will need a separate court order to evict you. Most tenancies are not binding on the lender, but there are exceptions.

You may have a binding tenancy if:

  • you were already living in the property at the time the mortgage was granted (e.g. as a sitting tenant or when the landlord took out a second mortgage), or
  • the lender specifically agreed to the tenancy, or
  • the landlord’s lender has recognised the tenancy in some way (e.g. by asking you to pay rent direct to them or by accepting rent from you). Most lenders will avoid doing this or will call the payment something other than ‘rent’.

If you are unsure about when the landlord’s mortgage started, ask your landlord, or get advice to find out whether the tenancy is binding. An adviser may be able to confirm this via the court, the lender, and/or the Land Registry.


How does a binding tenancy affect my rights?


If your tenancy is binding, the lender will become your new landlord. You would continue to have the same type of tenancy that you had before, so your rights would remain unchanged. In most cases, this means that you at least have the right to a written notice and court order before the lender can evict you. As your new landlord, the lender is required to follow the correct eviction procedures.


What should I do if I have a binding tenancy?


If you have a binding tenancy, you should:

  • get advice immediately on how to present your argument, and
  • try to provide written proof of the date the tenancy began, such as a written tenancy agreement, and
  • write to the lender to confirm that the tenancy is binding as soon as you find out that repossession is a possibility. Send photocopies of any proof you have.

If the lender refuses to confirm your status, or says that your tenancy is not binding and court action has started, you may be able to ask the court for an adjournment to give you more time to get legal advice.

Get advice immediately to check your rights and find out how to present your argument.

When deciding whether to take action, remember that the court may order you to pay legal costs, which can be expensive. It is probably worth trying to use the rights a binding tenancy gives you if:

  • you have a regulated tenancy or an assured tenancy as these give you stronger housing rights that are worth protecting, or
  • you need more time to find alternative accommodation.

But if your tenancy gives you little protection from eviction (e.g. an assured shorthold tenancy) you will only be able to delay the eviction (rather than stop it) as the lender will not need to prove a legal reason in order to evict you. In this situation, you may not feel that taking action to stay on is worthwhile.


What if my tenancy is not binding?


Lenders are often unaware that a property has been rented out to tenants, so in the past it was common for the lender to instruct the court bailiffs to repossess the property before the tenants were even aware that there was a problem, giving them very little time to find alternative accommodation.

However, most tenants should now become aware of the problem much earlier as lenders must send a notice to the ‘occupier/tenant’ to let them know they have started a claim for possession, and again when they apply to the court for the bailiff to carry out an eviction (see below).  If your tenancy is unauthorised, ie not legally binding on the lender, you can apply for the eviction to be postponed for up to two months if you need more time to find somewhere else to live.


Am I protected by the changes to the law?


Most private tenants with tenancies that are not binding on the landlord’s lender will be protected by this new law. The only exceptions are:

  • if you live in tied accommodation, or
  • if you are an excluded occupier (e.g. if you are a lodger in your landlord’s home), or
  • if you are an occupier with basic protection (this may be the case if you live in the same building as your landlord, you don’t pay any rent, or you live in a holiday let).

What notice does the lender have to give me?


If you have an assured shorthold tenancy, an assured tenancy or a regulated tenancy, the lender must:

  • Send a notice to the property before the repossession hearing informing ‘the tenant or occupier’ (i.e. everyone living there) of the date of the hearing. They have to do this within five days of the hearing date being confirmed by the court. Never assume that post addressed to ‘the tenant or occupier’ is junk mail.
  • Send a second notice to the property by first class post, recorded delivery or by hand, to inform you that the lender is going to ask the bailiffs to carry out an eviction. This will only happen if the court has already made a possession order. A special form must be used for this notice. The bailiffs cannot evict you for at least 14 days after the landlord has given this notice.

You can ask for the repossession to be delayed for up to two months at any one of these points in the process:

  • at the repossession hearing
  • after the court has made an order for possession
  • at the warrant stage.

It is important to be aware that in some cases the court hearing may have already taken place before your tenancy started. If this is the case you will only receive one notice (the second one). It is therefore advisable to take action to delay the eviction as soon as you receive anything in writing. If you cannot work out what stage of the repossession procedure has been reached, get advice.


What should I do if I receive a notice from the lender?


As soon as you become aware that repossession is a possibility, you should contact your landlord’s lender and ask them to delay repossession for up to two months to give you more time to find somewhere to live.

If the lender does not agree to give you more time, you should then contact the court to request that they order the lender to delay possession to give you time to find alternative accommodation.

You must have asked your landlord’s lender first (and your request been refused, or not received any response) before you ask the court to make an order.


How do I apply to the court to request a postponement?


If you want to ask the court to delay the date you have to leave the property, you will need to complete form N244, which you can download here. You should send the form to the county court where the hearing will be/has been held – their contact details should be on any notices you’ve received.

You should try to provide any relevant documents and information that will help the court to understand your situation, including:

  • a copy of your tenancy agreement (if you have one)
  • any proof that you have of rent payments (e.g. a rent book or details of payments)

For some households, it may be particularly difficult to find somewhere else suitable – e.g. if you need wheelchair access or a large property. If you are in this situation, you should explain your circumstances and confirm any steps you have already taken to find somewhere (e.g. signing up with letting agencies or applying as homeless to your local council).

The court will also consider:

  • your personal circumstances (e.g. if anyone in your household is vulnerable and/or if the type of accommodation you need is difficult to find quickly)
  • whether you have broken any of the terms and conditions of your tenancy (e.g. if you have rent arrears, have behaved anti-socially or have caused damage to the property)
  • whether the lender will suffer hardship as a result of delaying the eviction.

The court may decide to delay the eviction but impose conditions. For example, you may have to pay rent directly to the lender as a condition of delaying the repossession. This does not mean that your tenancy becomes binding on the lender.


What other options do I have?


In addition to seeking a 2 months’ delay in the lender obtaining a date for eviction, you may be able to:

  • persuade the lender to take over as landlord and/or give you more time to find another place to live. For example, if you have a fixed term tenancy, they may be willing to allow you to stay until the end of the fixed term, although they are not legally required to do so.
  • use publicity – local and national media may be interested to hear about tenants who are the innocent victims of repossession. Publicity may encourage the lender to allow you to stay on.

Can I get compensation from the landlord?


You can seek compensation from the landlord but should bear in mind that this may involve paying some legal costs, although the landlord may be ordered to pay these for you if you are successful. However, as the landlord may not have much money left after the mortgage has been repaid, it may be difficult to enforce any order the court makes.

If you do decide to seek compensation, the court can award damages for loss of the tenancy and/or for storage and emergency accommodation costs. The court cannot order that you should be allowed to move back into the property.


Where can I get more help and advice?


If you are a tenant and you know that repossession proceedings have been started, do not delay getting advice. Visit advice near you to find a Shelter Cymru advice surgery in your area or call our helpline 08000 495 495.



Phone an adviser

If you have a housing problem, call our expert housing advice helpline
08000 495 495


Email an adviser

If you have a non-urgent problem and would like to speak to an advisor
email us

We are sorry that we cannot provide this information in Welsh, however if you would like to speak to an adviser in Welsh please contact 08000 495 495.


Paying off mortgage debt

Paying off your mortgage shortfall


If the money from the sale of your home isn’t enough to cover your mortgage debts, you will still owe the outstanding amount to your lender. You might be able to negotiate a repayment plan with your lender but they may decide to take you to court to get the money back. This has to be done within a certain amount of time.



How will I know if I have debts and, if so, how much?


When the property is sold, your lender will probably send you a detailed final financial statement. This will tell you whether any debt is still outstanding, and should include a detailed breakdown of all the costs involved.

You may be contacted soon after the repossession to ask how you intend to repay the debt, although they may give you time to get back on your feet first. It is quite common for several years to pass before legal action to get back the money you owe is started. It is very important to get independent advice before you reply to any letters asking how you intend to pay off your debt.


Mortgage indemnity guarantee


If you had to pay for a mortgage indemnity guarantee when you took out your mortgage, it will pay all or part of the shortfall to your lender. However, this doesn’t mean that your debt has been paid – it has simply been transferred from your lender to the insurer. The insurer can take legal action against you to get back any money it had to pay out. Your lender may take legal action on behalf of the insurer, or the insurer can do so itself.


When can action be started?


If the court made a money judgment when the possession order was made, there is no time limit on when legal action has to be started.

If the court did not make a money judgment, your lender has to start any legal action within a maximum of twelve years. However, the Council of Mortgage Lenders (whose members include all the main high street lenders) and the Association of British Insurers (which represents many mortgage indemnity guarantee insurers) expect their members to start action within six years.

If your lender or insurer contacts you after the six years has ended, get advice. You may not have to pay and you may be able to complain to the Financial Ombudsman Service.


How can the debt be repaid?


Your debts can be repaid over a number of years. It is usually possible to negotiate how this will be done, but you should get advice first. An adviser can help you to work out the best way to deal with your debt. Even if it’s impossible for you to pay off everything you owe, you may be able to:

  • ask your lender to write off all or part of your debt
  • pay a lump sum as a full and final settlement – your lender may accept an amount which is less than you owe
  • make arrangements to pay off all or part of the debt in instalments over an agreed period
  • declare yourself bankrupt.

Writing off the debt


It is very unlikely that your lender will agree to write off all your debt. This usually only happens in extreme situations, where there is very little chance that your situation will improve in future. However, some lenders will agree to write off part of the debt if you can make arrangements to pay off the remaining debt through a lump sum payment or regular instalments.


Lump sum payments


If you can afford it, you can offer to pay a lump sum on the condition that the rest of your debt will be written off. You may be able to do this by selling valuable belongings (such as a car) or by borrowing money from friends or family. You may also be able to take out a new loan to pay off your debts, but you should get advice first, and avoid loans with high interest rates.

Even if you can’t afford the full amount, your lender may agree to accept a lump sum payment as ‘full and final settlement’. If you want to do this, get independent advice first. If it’s not done in the correct way, through a formal agreement, your debts may not be cleared.


Paying by instalments


Your lender may allow you to pay off all or part of your debt in regular instalments over a number of years (usually within the original term of your mortgage). If you do this, your lender may be willing to write off part of the debt. It’s important not to agree to pay more than you can realistically afford.


Bankruptcy


Depending on your situation, you may decide to declare yourself bankrupt. If you do this, any assets you have can be used to pay off your debts during a period of two or three years. After this time, any remaining debts you have will be written off, and you will probably be discharged from bankruptcy. However, bankruptcy will have a big impact on your ability to get credit in future, so it is essential to get advice before doing this.


Where can I get help?


The best option for dealing with your debts will depend on your personal circumstances. A specialist debt adviser can help you to work out the most realistic way to deal with your debts. Call Shelter Cymru’s expert housing advice helpline on 08000 495 495 or email our debt advice team. If you prefer, click here to see if there is one of our free, specialist, independent, confidential debt advice service surgeries in your area.

An adviser may be able to help you:

  • manage your income and expenditure and work out your options
  • explain the reasons for your financial problems to your lender and/or insurer
  • explain the steps you have taken to keep your debts to a minimum
  • produce a detailed summary of your finances to show that you have very little money available to repay the debt
  • organise and prioritise payments of any other debts you have.


Phone an adviser

If you have a housing problem, call our expert housing advice helpline
08000 495 495


Email an adviser

If you have a non-urgent problem and would like to speak to an advisor
email us

We are sorry that we cannot provide this information in Welsh, however if you would like to speak to an adviser in Welsh please contact 08000 495 495.


Sale by mortgage lender

If your home is sold by the mortgage lender


After repossession your lender can sell your home to pay off your debt but the sale price might not cover all you owe.



Do I have to pay the mortgage until my home is sold?


Yes. If your home is repossessed or you hand over the keys to your lender, you will still be responsible for your mortgage payments until it is sold.

This will include:

  • any arrears
  • ongoing mortgage and interest payments
  • buildings insurance
  • penalty charges for missed payments.

Selling may take a long time, so the amount you owe could increase considerably even though you are no longer living in your home. Your lender shouldn’t delay the sale if doing so would mean that your debt would increase. Contact an adviser immediately if you are in this situation. They may be able to help you negotiate to keep penalty charges to a minimum.

The person or company who was given possession of your home has a responsibility to look after the property until it is sold. This includes dealing with essential repairs. It may also deal with basic maintenance, but doesn’t have to. Any costs involved will normally be added to your debt.


How will the lender sell the property?


Your home may be put on the market in the normal way, but some lenders sell repossessed properties at auction. Most will get at least one valuation to ensure they get a fair price, but it may not be as much as you would get if you sold it yourself. This is because your lender’s main concern is getting back the money you owe as quickly as possible.

Lenders have a legal responsibility to get the best price for the property that can reasonably be obtained.

If you think your lender has failed to get a fair price, you can complain to the Financial Ombudsman Service who will investigate how the property was valued and marketed.


Can I sell the property myself instead?


It may be possible to sell your home yourself, even after you have been evicted. You may want to do this if you think that the price your lender has accepted is too low. If you can show that you have received a better offer from a serious buyer, the courts may be willing to make an order allowing you to sell the property yourself (an order for sale). This will prevent your lender from selling the property for a limited amount of time. If you think this might be possible, contact a solicitor immediately or call the Civil Legal Advice Helpline on 0345 345 4 345.


What happens to the money from the sale?


When the property is sold, your lender is entitled to use the money from the sale to recover what you owe. This will include any outstanding debts and any money your lender has to spend when selling your home,

such as:

  • legal fees
  • estate agents’ and/or auctioneers’ fees
  • bills for any repairs that are needed.

If you have other debts that were taken out with your home as collateral (such as a second mortgage), these creditors may be entitled to a share of the proceeds, but your debt to your mortgage lender will be paid first. Any money left over after everything you owe to your creditors has been paid will be yours.

If you are on means-tested benefits, any money you get from the sale will be counted as capital, and your benefits will probably be reduced.


What if the proceeds aren’t enough to cover my debts?


When your home is sold, the money from the sale may not cover everything you owe. This might be the case if your arrears are very large, or if the value of the property has fallen since you bought it (negative equity). If this happens, you will still be responsible for repaying the difference (the shortfall).

If you had to pay for mortgage indemnity insurance when you took out your mortgage, it will pay all or part of the shortfall to your lender. However, you are still responsible for the money and can be asked to pay it back after the property is sold. Your lender may take legal action on behalf of the insurance company, or the insurer can do so itself.

If you are facing long-term debts, you should get specialist advice. Contact one of the following organisations who may be able to help you:

  • Call Shelter Cymru’s expert housing advice helpline on 08000 495 495. You could also email our debt advice team, or, if you prefer, go to one of our free, specialist, independent, confidential debt advice service surgeries across Wales
  • the National Debt Adviceline
  • the Insolvency Helpline


Phone an adviser

If you have a housing problem, call our expert housing advice helpline
08000 495 495


Email an adviser

If you have a non-urgent problem and would like to speak to an advisor
email us

We are sorry that we cannot provide this information in Welsh, however if you would like to speak to an adviser in Welsh please contact 08000 495 495.


Accommodation after repossession

Finding a home after a repossession


If your home is repossessed and you can’t delay or stop the eviction, you will need to find alternative accommodation. If you lost your home because of mortgage arrears or other debt problems, it may be more difficult to find a place to rent or buy.

If you need help, contact Shelter Cymru. We will be able to talk through your options and give you details of your local council’s offices, in case you need to make a homelessness application.



What are my options?


Even if you may be able to stay with family or friends for a while, you will also need to find long-term accommodation that you can afford.

Your options may include:

  • buying another property
  • applying to your local council as homeless
  • renting from a private landlord
  • applying for a permanent council or housing association place
  • moving into a housing co-op or supported housing.

If you are on a low income and you move into rented accommodation, you may be eligible for housing benefit or universal credit housing costs.


Can I buy another property?


If you buy another property while you still have an outstanding debt to your previous lender, it may be able to put a charge on your new home and claim part of the proceeds when it is sold. If the court made a money judgment when your previous home was repossessed, there is no time limit for when your previous lender can do this.

You will have to tell any lender that you apply to that your last home was repossessed, so getting a new mortgage may be difficult. It may be worth applying to a few different lenders, but you will have to tell them if your previous application was refused. A specialist mortgage broker may be more likely to find a lender who is willing to give you a mortgage. However, in many cases you will have to provide a larger than normal deposit, and may be charged higher than normal interest rates.

Alternatively, you may be able to get a smaller mortgage and/or buy a place through a home-ownership schemes. These include :

Ask your housing association or local council about the schemes that are available locally.

Contact the council or a local advice service to find out whether there are any schemes in your area.


Can I get help from the council?


Local councils have legal duties to help and advise people who are homeless or about to lose their homes. They may be able to help prevent you from becoming homeless, provide emergency accommodation and, in some cases, help you find longer term accommodation.

The rules on what sort of help the council must give you are complicated. Your rights depend on your personal circumstances.  Read our pages on homelessness for more information.

If the council tells you that you are intentionally homeless because you didn’t pay your mortgage, the council will only have to help you for a limited time.  If this happens contact Shelter Cymru immediately.

An adviser may be able to help you persuade the council that you did everything you could to keep your home. Most councils are more likely to accept this if you had difficulty paying your mortgage because you lost your job, split up with your partner or became ill.

In some circumstances, where your household includes children or young people, the council may also have a duty to secure accommodation even if they have decided that you are intentionally homeless.

Some people can get help from social services, even if the housing department won’t help them. An adviser can check whether this applies to you.


Can I rent from a private landlord?


Privately rented accommodation varies widely throughout Wales. In some areas it is cheap and plentiful, and it may be possible to find a suitable place and move in quite quickly. In other areas it can be difficult to find, and may be in poor condition. Rents can also be expensive. There is no legal limit concerning how much landlords can charge to begin with, but there are rules about how often they can increase the rent.

Many private landlords run credit checks on prospective tenants. If your home was repossessed because of mortgage arrears, it may be more difficult to find a landlord who is willing to rent to you.

If you find a place, you will probably have to pay rent in advance and a deposit. If you are on benefits or have a low income, you might be able to apply to the social fund for a budgeting loan to cover any rent in advance.

Since November 2016, all landlords of privately rented properties must be registered with Rent Smart Wales.  They must also obtain a licence, or if they use an agent to manage their property, the agent must have a licence.

For more information about renting from a private landlord in Wales, click here.


Can I get a council or housing association place?


In most areas, you can only get a council or housing association place through a waiting list (the housing register). Some people are not eligible to apply, including some people from abroad, or people who are guilty of serious unacceptable behaviour (for example, anti-social behaviour or serious rent arrears).

To apply to go on the waiting list you’ll need to fill in an application form, which you can get from the council’s housing department, and provide ID and other documents. If you have problems applying, get advice.

Waiting lists are often very long. How much priority your application is given will depend on your circumstances and how much accommodation is available in the area. In some areas there is a lot of accommodation available, but in other areas you may have little realistic hope of being offered a place at all.  You will probably need to look at other options, such as renting from a private landlord, particularly if you need to find somewhere quickly.

For more information about applying for a council or housing association place in Wales, click here.


What other long-term options are there?


You may want to consider other accommodation options such as supported housing or living in a housing co-operative. Contact Shelter Cymru to find out what is available in your area and how to apply.

You can find more information on all of your accommodation options in our section on finding a place to live.



Phone an adviser

If you have a housing problem, call our expert housing advice helpline


Email an adviser

If you have a non-urgent problem and would like to speak to an adviser
email us

We are sorry that we cannot provide this information in Welsh, however if you would like to speak to an adviser in Welsh please contact 08000 495 495.

Ordered to leave

If the court orders you to leave your home


If the court has ordered you to leave your home, and you haven’t spoken to an adviser yet, do so immediately. Contact a solicitor, Citizens Advice Bureau or Shelter Cymru adviser who can help you work out your options. It may not be too late to delay the eviction or, in some circumstances, to stop it altogether. An adviser may be able to help you take your case back to court, or if the eviction can’t be stopped, to help you find alternative accommodation.


If the court orders a repossession, it will set a date by which you have to move out. If you don’t leave by that date, your lender or freeholder can ask the bailiffs to evict you. Even at this stage, it may be possible to stop the eviction from going ahead, so it’s always worth getting advice to see if there is any action you can take to try and keep your home.



When will the bailiffs come?


The bailiffs will come to your home and leave a form informing you of the date and time of the eviction. They may ask if any special arrangements need to be made because of your personal circumstances, for example if you need help because you have children, are elderly or are disabled. If they don’t ask this but you think you will need help, get advice or contact the bailiffs’ office at the court.

The amount of notice you get depends on your local bailiffs’ office, but you should have at least a few days’ notice. There are no rules about what time during the day they can come, but it will normally be within normal working hours.


Can I stop or delay the eviction?


It may not be too late to save your home. Depending on your circumstances, you may be able to stop or delay the bailiffs from coming to evict you. However, you have to apply to the court to do this, and need to take action quickly.

You have to fill in a form to request a court hearing, explaining your circumstances and the reason you want the bailiffs’ visit to be stopped or delayed. The court will arrange for the hearing, which might even be set for the date of the eviction itself.

If the eviction hasn’t taken place yet, get advice straightaway!


What happens if I apply to stop or delay the bailiffs?


When you fill in the form for the court hearing, you will be given a date and time for a hearing to take place.  If you want a representative to attend the court hearing with you to help you explain your situation to the court, contact a specialist advice centre or a solicitor as soon as possible.  You must attend the hearing so that the court can listen to why you think the eviction should be stopped or delayed.

At the hearing, the judge may agree to stop or delay the eviction if:

  • you are ill or have young children, and need more time to find somewhere else to live
  • your circumstances have changed (such as if you have a new job) and you are likely to be able to pay off what you owe if you are given more time
  • there is a good reason why you haven’t done anything to stop the eviction earlier (such as if you have been away and were not aware of the situation and court proceedings)
  • your lender or freeholder got the possession order by fraud or didn’t follow the correct procedure.

In very rare situations, the court may agree to let you stay in the property until your lender sells it. This is only likely to happen if your lender (or freeholder) doesn’t need the property until after the completion date and you are willing to co-operate when the sale goes ahead.

If the judge decides to stop or delay the bailiffs’ visit, you should contact the bailiffs’ office at the court to make sure that they are aware that the eviction has been stopped or delayed. If the judge doesn’t agree to this, the eviction will go ahead. Contact a local advice centre if you need help finding alternative accommodation.


What happens when the bailiffs arrive?


The bailiffs can physically remove you from your home. They can use necessary force to enter the property and can remove anyone living there. The bailiffs have to act reasonably, and mustn’t use unreasonable force. The locks will normally be changed to ensure you can’t get back in. This will happen even if you are not in the property when the bailiffs arrive.

The bailiffs can ask the police to be present if they think you might try to stop them from getting in. The police aren’t allowed to help the bailiffs with the eviction but are there in case there is any disturbance. The police can arrest anyone who is violent. Your lender’s (or freeholder’s) solicitor or estate agent will also be present at the eviction, and will then have the keys to the property.


What will happen to my belongings?


The bailiffs won’t remove any of your furniture or belongings unless the court has decided they should do so. The bailiffs will usually watch while you do this yourself. If you don’t remove your belongings, they will be left locked inside. You will need to make arrangements with your lender or freeholder to collect them later.

You normally have to remove everything within a short period of time, for example, two weeks. If you can’t do so and don’t make other arrangements, your lender or freeholder may be able to dispose of them.


Can I get back into the property after the eviction?


Apart from collecting any personal belongings that have been left in the property with your lender’s agreement, it is not usually possible to get back into the property. However, the court may agree to allow you to return, if you can show that:

  • the possession order was obtained through fraud
  • the correct legal process wasn’t followed.

It may also be possible if you can raise the money to pay off your mortgage debt soon after the eviction. You would have to apply for an injunction to stop the sale of your home while the arrangements are made. If contracts have already been exchanged with a buyer, you can’t stop the sale from going ahead.


What can I do if the bailiffs treat me unfairly?


If you believe the bailiffs have acted unreasonably, you may be able to make a complaint. This might be possible if the bailiffs:

  • use violence, or threaten to do so
  • harass you or other people living in the property
  • threaten to arrest or imprison you (unless you have assaulted the bailiff)
  • use offensive language
  • take away or cause damage to your belongings
  • carry out the eviction when only children are in the property.

You normally have to complain to the local bailiffs’ office at the court first. They should be able to explain how to do this. If you are not satisfied with the outcome, you may be able to complain to the Association of Civil Enforcement Agents if the bailiff is a member. If this is not successful, you can take the matter to court, but will probably need help from a solicitor.



Phone an adviser

If you have a housing problem, call our expert housing advice helpline
08000 495 495


Email an adviser

If you have a non-urgent problem and would like to speak to an advisor
email us

We are sorry that we cannot provide this information in Welsh, however if you would like to speak to an adviser in Welsh please contact 08000 495 495.


Can the court let me stay in my home?

You may be entitled to stay in your home


Whether you can stay in your home will depend on the type of decision the court makes at the County Court possession hearing. You may be able to stay if the court decides to strike out or adjourn the case, or to make a suspended possession order.


If you have already been to court but you are not sure what the order said, you can ask the court office. If you don’t understand what it means, get advice from Shelter Cymru. Ring or email our expert housing advisers, or, if you prefer, find out where your nearest Shelter Cymru advice surgery is here.



The case was struck out


If the judge decided to strike out or dismiss your lender’s claim, it probably means that your lender didn’t have the right to evict you, or didn’t follow the correct legal procedure. This means you can stay in your home and your rights and responsibilities will be the same as before. However, your lender or freeholder can ask the court to evict you again in future if it gets new evidence and follows the correct procedure.


The case was adjourned


If the judge has adjourned your case, it means that the case couldn’t be decided at the hearing.

This may have happened because:

  • the judge needs more information to make a decision
  • you need time to raise a lump sum to pay off all or some of your arrears
  • you are selling your home and need time to complete the sale.

If you have mortgage arrears, you may have to pay a certain amount each week or month as a condition of the case being adjourned. It is very important to stick to these conditions. If you don’t, the judge is more likely to order a date for you to leave the property when your case goes back to court. The judge should explain the conditions to you, and you will get written confirmation of the order in the post. If the order isn’t clear, get specialist advice.

Your case may have been adjourned indefinitely or for a fixed period of time. In either situation, you have the right to stay in your home until a final decision is made or you pay off the money you owe. You may have been given a date for another hearing when the case was adjourned, or your lender may have to apply for a new hearing after a certain amount of time or if circumstances change.

Contact a local advice centre if your case has been adjourned and you need advice about what you should do next.  The sooner you seek specialist advice the better, so don’t delay.


The court made a suspended possession order


If the judge made a suspended possession order, you can stay in your home as long as you keep to certain conditions as ordered by the court. The conditions should be explained in the order, but if it isn’t clear, get advice. In many cases, the order will say that you have to pay a certain amount off your arrears each month on top of your monthly mortgage payments. When you have paid off the arrears, you simply need to continue to pay your normal monthly payments when they are due.

If you don’t keep to the conditions of a suspended possession order, you can be evicted very easily. For example, if you miss even one payment, or pay less than the sums ordered, your lender can apply to the court for a bailiff’s warrant straight away. There isn’t normally another hearing and you may only get a few days’ warning before the bailiffs arrive to evict you. If you receive a letter from the court bailiff, get advice immediately. There may still be time to stop the eviction from going ahead.

If you think you are likely to have problems sticking to the conditions of a suspended possession order, you should contact your lender and/or get advice immediately. Don’t put off dealing with the situation, as your lender (or other creditor) may be able to evict you very quickly if you don’t come to an agreement.

Even if the situation seems hopeless, an adviser may be able to help you find a solution. For example, if you have lost your job it may be possible to get the conditions of the order changed to make the repayments more manageable for you until your circumstances improve. If you want to change the conditions of an order, you will need to apply to the court and may have to pay a fee. However, if you are claiming benefits or you are on a low income you may be able to get help with these costs but you will need to show the court evidence of your low income when you make your application.


Avoiding payment problems in future


If you are worried that you may have ongoing problems affording your mortgage payments, you should get advice to stop your arrears from increasing. If your lender or its solicitor contacts you about your arrears, don’t ignore their letters or phone calls. If you don’t respond, your lender is much more likely to take you to court.

If you are having financial problems, contact the Shelter Cymru’s debt advice service. They might be able to help you deal with your lender and come to an achievable solution. For example, it may be possible to negotiate with your lender to reduce your monthly payments by extending the term of your mortgage or switching to a different repayment method.

You can also use our online budget planner



Phone an adviser

If you have a housing problem, call our expert housing advice helpline
08000 495 495


Email an adviser

If you have a non-urgent problem and would like to speak to an advisor
email us

We are sorry that we cannot provide this information in Welsh, however if you would like to speak to an adviser in Welsh please contact 08000 495 495.