The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank should have taken possession only after court proceedings.
Held: A lender taking possession of a dwelling house under a mortgage without recourse first to court action, was not subject to the restrictions on suspension of possession for those who did apply to court. The statute could not be extended to imply such limits. The court considered the authorities at length. The mortgagee’s right to possession may be exercised out of court provided that the taking of possession does not involve a contravention of the criminal law under section 6 of the Criminal Law Act 1977.
Chadwick LJ said: ‘I find it impossible to be satisfied that Parliament must have intended, when enacting section 36 of the Act of 1970, that the mortgagee’s common law right to take possession by virtue of his estate should only be exercisable with the assistance of the court. In my view, the only conclusion as to Parliamentary intention that this Court can properly reach is that which can be derived from the circumstances in which the section was enacted, the statutory context in which it appears and the language which was used. ‘ The section in the 1970 Act was intended only to correct the problem identified in Caunt.
Henry, Chadwick, Clarke LJJ
Times 06-Jan-1999, Gazette 10-Feb-1999,  EWCA Civ 1960,  QB 263,  4 All ER 235
Administration of Justice Act 1970, Administration of Justice Act 1973 8, Criminal Law Act 1977
England and Wales
Criticised – Remon v City of London Real Property Co Ltd CA 1921
The court was asked whether the plaintiff, a tenant of rooms to which (once enacted) the Act of 1920 applied and who had been excluded from possession by the landlord’s re-entry on the day that the Act came into force following service of a notice . .
Criticised – Cruise v Terrell CA 1922
The plaintiffs stayed at weekends at a cottage let for a fixed term of one year. The contractual term ended on 25 March 1921 and was not renewed. On 7 April, in the absence of the plaintiffs, the defendant sent the local blacksmith to the cottage, . .
Cited – Lavender v Betts 1942
The landlord, served a notice to quit, and obtained entry to the property without force and removed the doors and windows so that it could no longer be used as a dwelling. The plaintiff brought an action for trespass.
Held: After referring to . .
Leave to appeal – Ropaigealach v Barclays Bank plc (1) CA 11-Dec-1997
Application for leave to appeal on issue of whether ‘by necessary implication, the effect of section 36 of the Administration of Justice Act is that a mortgagee must first obtain the leave of the court before proceeding to enforce its right to . .
See Also – Ropaigealach and Another v Cheltenham and Gloucester Building Society CA 20-Mar-1997
The applicants sought leave to appeal against a possession order made for arrears under their mortgage. A possession order had been suspended on an arrangement as to payment. The way the society calculated its payments meant that the arrears . .
Cited – Western Bank Ltd v Schindler CA 1977
The mortgagee sought possession in circumstances in which the mortgagor had allowed a life policy, taken as collateral security, to lapse, but where there had been no default under the mortgage itself. The question arose whether the court could . .
Cited – Birmingham Citizens Permanent Building Society v Caunt 1962
The court considered whether there it had jurisdiction to refuse to order possession in favour of a legal mortgagee under an instalment mortgage under which, by reason of default, the whole money had become payable.
Held: The court made an . .
Cited – Fourmaids Ltd v Dudley Marshall (Properties) Ltd 1957
A necessary consequence of the legal foundation of a mortgage is that the court may not to refuse, or to suspend, an order for possession sought by a mortgagee who was otherwise entitled to enter by virtue of his estate. . .
Cited – Hemmings v The Stoke Poges Golf Club Limited CA 1920
The defendant landlord had entered the demised property, in which the plaintiff and his wife were living, and removed them and their furniture, using no more force than was reasonably necessary to do so. The landlord had an immediate right to . .
Cited – Cheltenham and Gloucester Building Society v Krausz CA 22-Oct-1996
The County court may not suspend a possession order pending an application to the High Court for an order for sale. The court considered the protection given by s15(1) of the 1970 Act, and found the protection to be limited, but nevertheless of . .
Cited – National and Provincial Building Society v Ahmed CA 1995
A mortgagor’s equity of redemption is extinguished when the mortgagee, in the exercise of his power of sale, enters into a contract of sale of the mortgaged property.
Millett LJ said: ‘The purpose of making an order under section 36 of the . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Bank of Scotland v Grimes CA 1986
The court considered the combined effect of both sections. Griffiths LJ said: ‘It is the intention of both sections to give a measure of relief to those people who find themselves in temporary financial difficulties, unable to meet their commitments . .
Cited – Horsham Properties Group Ltd v Clark and Another ChD 8-Oct-2008
The court was asked whether section 101 of the 1925 Act infringes the Convention rights of residential mortgagors by allowing mortgagees to overreach the mortgagor by selling the property out of court, without first obtaining a court order either . .
Cited – Barlcays Bank Plc v Alcorn CA 17-May-2002
Renewed application for leave to appeal. . .
Cited – The Co-Operative Bank Plc v Phillips ChD 21-Aug-2014
The bank had brought possession proceedings against the defendant under two legal charges securing personal guarantees. The proceedings had been abandoned, but the court now was asked whether costs for the defendant should be on the standard or . .
Cited – McDonald v McDonald and Others SC 15-Jun-2016
Her parents had bought a house and granted tenancies to their adult daughter (the appellant), who suffered a personality disorder. They became unable to repay the mortgage. Receivers were appointed but the appellant fell into arrears with the rent. . .
Lists of cited by and citing cases may be incomplete.
Land, Litigation Practice
Updated: 01 November 2021; Ref: scu.88861