Published: Wed, 07 Mar 2018
Ropaigealach v Barclays Bank plc  1 QB 263
Lender entitled to take peaceable entry without seeking possession order
The plaintiff was not residing in the property at the time when the defendant took possession and sold the property at auction. The plaintiff sought the determination of the court on whether the defendant had been entitled to take possession without first having sought and obtained an order of the court.
The court held that section 36 of the Administration of Justice Act 1970 did not require the defendant to obtain such an order for possession. The plaintiff appealed. Section 36 gives the Court the discretion to delay making a possession order to enable a borrower to pay off arrears. On appeal, the plaintiff argued that the clear purpose of this section was the protection of borrowers. This purpose would be frustrated if the lender could resort to alternative self-help remedies and avoid bringing proceedings for possession. All borrowers should be protected whatever method the lender uses to gain possession.
The appeal was dismissed. The Court was not convinced that Parliament had intended section 36 of the 1970 Act to cover the situation in which the lender had exercised its common law right to possession of the mortgaged property. Section 36 was enacted to provide the Court with the power to refuse or suspend an order for possession following the case of Birmingham Citizens Permanent Building Society v Caunt  Ch 883. However, section 36 was not apparently intended to extend to the case where the lender exercised his common law right to take possession by peaceable entry without seeking a possession order from the Court.
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