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12 March 2009 / Edward Peters KC
Issue: 7360 / Categories: Features
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Property: Beg, borrow or steal?

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Edward Peters considers recent cases about mortgage possession and adverse possession

The Council of Mortgage Lenders recently announced that the number of homes repossessed by mortgagees in 2008 rose 54% to 40,000, and that it expects there to be about 75,000 repossessions in 2009. Under s 36 of the Administration of Justice Act 1970, where a mortgagee brings an action for possession of a dwelling, the court has various powers of adjournment, suspension or postponement if it appears to the court that, in the event of its exercising the relevant power, the mortgagor is likely to be able, within a reasonable period, to pay any sums due under the mortgage. The question of how those powers should be exercised has produced a large and still-growing body of case law. A recent case underlines the fact that mortgagors intending to rely on the provisions of s 36 should ensure that they have adequate evidence before the court of their proposed means of repayment, and not expect that the court will be indulgent and grant

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