Home repossession

When you get a mortgage to buy a property, the property is used as security for the mortgage debt. This means if you can’t pay your mortgage, your home could be repossessed by your mortgage provider and sold to pay the debt.

If you don’t have a mortgage on your home, but you have other debts you can’t repay, your home may be repossessed to cover those debts.

Your lender must apply to court to take possession of your property.

Your lender

If you are having difficulty paying your mortgage, you should talk to your lender as soon as possible. There are codes of conduct for mortgage lenders, which outline the steps your lender must take to deal with any problems you have paying your mortgage. Repossessing your home should be the last option for your lender.

The Money Advice and Budgeting Service (MABS)

The Money Advice and Budgeting Service (MABS) offer advice and support to people facing repossession.

MABS has a Dedicated Mortgage Arrears service and a court mentor service. They run the Abhaile scheme which provides services for people who are in serious mortgage arrears and at risk of losing their home. These services include financial advice, legal advice and insolvency advice.

MABS can also help you to prepare if you have to go to court. They may tell you the type of questions you can expect from the judge and the documentation you need for your case (for example, a statement of income and expenditure).

Legal advice

If you need legal advice and representation, you may be able to get civil legal aid, depending on your circumstances. The Abhaile scheme also covers a certain amount of free legal aid and advice for eligible borrowers.

You can also contact a Free Legal Advice Centre (FLAC) to get advice on legal papers or legal issues.

New Beginning is a not-for-profit organisation which aims to represent people in debt.

Help finding somewhere to live

If your home is being repossessed, you will need to find somewhere else to live. If you meet the criteria, you can apply to the local authority to be housed.

If you rent from a private landlord, you may qualify for Rent Supplement or the Housing Assistance Payment (HAP) to help with the rent.

If you cannot find anywhere to live, our page on housing and other supports for homeless people may be useful.

If you have exhausted all the options open to you, your lender can repossess your home to get back the money you owe.

You can agree to have your home repossessed and sold. But if you do not agree to the repossession, the lender can take you to court.

If you agree to have your home repossessed

You can consent to have your home repossessed. If you are unable to pay your mortgage, you can agree terms with your lender for the sale of the house.

The lending institution must get a court order to repossess or sell your house, unless you consent in writing 7 days before the repossession or sale.

If the issue must go to court, you generally have to pay the costs of the court action.

The lending institution may have difficulty finding a buyer for your home unless there is a well-charging order in place. This is a court order which allows for the sale of the property.

If you don’t agree to have your home repossessed

If you haven’t agreed a repayment plan with your lender, or you have been unable to meet the payments arranged by a repayment plan, the lender may take you to court to repossess your home. You must engage in the legal process if you don’t want your home repossessed.

If your home is being repossessed because you defaulted on a housing mortgage loan, your case must be taken to the Circuit Court first.

A housing loan mortgage is the usual type of mortgage that people take out to build, buy or improve a house. Cases involving repossession for default on other kinds of mortgages can be taken to the Circuit Court or High Court.

The lending institution applies to the court for a possession order, a well-charging order, or both. If they are successful, the possession order will give the lender possession of your property and the well-charging order will allow them to sell the property. The courts will usually give you some time to make arrangements to repay the money owed before making any final orders.

If a possession order or well-charging order is made against you and you do not hand over possession of the property, or comply with other terms of the orders, the orders can be enforced by the Sheriff (in Dublin and Cork), or by the County Registrar in other areas.

Circuit Court procedure for home repossession

Your mortgage provider starts home repossession proceedings

Your mortgage provider issues a civil bill for possession in the Circuit Court Office in the country where your property is located.

The bill is sent to you. It has general information about your case, including the date it will come before the County Registrar. This date is known as the return date. The civil bill must be served on you at least 21 days before the return date.

The bill usually comes with an affidavit setting out the claim being made against you.

You reply to the proceedings

If you want to fight the action taken by the mortgage provider to repossess your home, you must:

• Complete the appearance form attached to the civil bill. File it with the Circuit Court Office within 10 days of being served the civil bill. A copy of this form must also be served on the solicitors representing your financial institution.
• Prepare an affidavit replying to the mortgage provider’s claim. File this with the Circuit Court Office and send a copy to the mortgage provider at least 4 days before the return date.

If you think there are technical errors or serious issues with the proceedings, you can take a further step and prepare a defence.

This is a document which sets out the reasons the court should not make a possession order in favour of your financial institution.

It must be served on the solicitors for your financial institution within 10 days of serving them your appearance form.

You should get legal advice if you are thinking about taking this step.

How does the court decide?

The County Registrar will decide your case based on what is in the affidavits. You cannot give oral evidence, except in specific circumstances. However, you can cross examine the person who swore the affidavit. To do this, you must have given notice that you want this person to be present.

What can the court decide?

The County Registrar can:

• Grant the order for possession – giving the financial institution possession of your property
• Dismiss the case
• Adjourn the case – giving you and your financial institution time to reach an agreement

If you did not file an appearance form, the County Register can make an order for possession, and a well-charging order.

If you filed an appearance form and affidavit, but your affidavit did not show any obvious defence, the County Registrar can also make an order for possession.

If you filed an appearance and your affidavit shows a proper defence, the case must be sent to be heard by a judge.

The judge can then grant or refuse the possession order.

The procedure in the Circuit Court is governed by the Rules of the Circuit Court, which are set out in the Circuit Court Rules (Actions for Possession and Wellcharging Relief) 2009.

High Court procedure for home repossession

The procedure for home repossession in the High Court is similar to that in the Circuit Court. The Master of the High Court has a similar role to the County Registrar in the Circuit Court.

The lender applies to the High Court for a possession order and, if necessary, a well-charging order. They issue a special summons, which is first dealt with by the Master of the High Court.

The Master of the High Court sets a return date which cannot be less than 7 days after the summons is issued. The summons must then be served on you at least 4 days before the return date.

The lender must file an affidavit setting out the facts of the claim in the Central Office of the High Court. The hearing may be on affidavit only or oral evidence may be given.

The Master may grant or refuse the orders requested, or may forward the case for hearing by a High Court judge.

The procedure is set out in Order 38 of the Rules of the Superior Courts.

Court procedure for forcing the sale of a property to recover a debt

A mortgage suit is a court procedure which is taken by your mortgage lender, to recover a debt by forcing the sale of the property. If a mortgage suit is successful, the court issues a well-charging order. A well-charging order usually includes:

• A declaration by the court that the debt owing to the person or institution taking the case is “well charged” on the property in question. This debt includes any interest and costs.
• A direction that the property be sold. Usually the court gives you time to pay the amount due before the order for sale becomes effective.
• A direction that the Examiner’s Office take an account of all claims on the property and make an inquiry into their respective priorities. For example, this can happen if you have more than one mortgage on a property, or there is an arrangement that some of the proceeds of sale of the house must be used for other purposes.

The arrangements for the sale are also generally agreed through the Examiner’s Office. The sale is usually by public auction.

If the sale price is greater than the amount you owe, then the excess is paid over to you. If it is less, you are still liable to repay the shortfall.

If you manage to make a settlement with the lender and agree repayment terms, then the lender may apply to the court to discharge the well-charging order.

If you owe money for any reason and the creditor is trying to get repayment, they can create a judgment mortgage on your property.

A judgment mortgage has broadly the same effect as a conventional mortgage on your home and can be enforced by way of a mortgage suit.

First the creditor gets a judgment order. Then they get an execution order usually called a fi fa order. If the execution order doesn’t result in payment of the debt, the creditor can get a judgment mortgage on your property.

Judgment order

The creditor must first get a court to decide that you owe them money. This is called a judgment order.

To get a judgment order, the creditor will take their case to the District Court, the Circuit Court or the High Court.

The court they apply to depends on the amount of money involved. You can contest the case. If it is established that you owe the money in question, a judgement order is made.

The person who is owed the money is known as the judgement creditor. They have 12 years to enforce the judgment order.

Enforcing a judgment order

Once the creditor has the judgment order, they have to get an order to execute the judgment.

The execution order allows the creditor to enforce the judgment. The legal term for enforcing the judgment is execution.

A number of execution orders are available. Generally, execution orders remain in force for a year, but may be renewed.

Fi fa order

The execution order most commonly used to enforce a High Court judgment for a specific amount of money is an order of fieri facias. They are generally called orders of fi fa. These orders are issued by the Central Office of the High Court.

This order entitles the creditor to direct the sheriff or County Registrar to seize and sell property belonging to the debtor.

If this fails because there is no property to seize, then the sheriff or County Registrar reports that no goods could be found to be seized.

Judgment mortgage

A judgment mortgage is often created when the order of fi fa fails to deliver any property. However, a judgment creditor can create a judgment mortgage instead of looking for a fi fa order.

Creating a judgment mortgage involves registering the judgment as a mortgage against your property. Effectively, the judgment is converted into a mortgage and this is registered in the Land Registry or Registry of Deeds.

Registration of the judgment mortgage does not have any automatic immediate effect until the judgment creditor decides to either:

• Force a sale
• Claim entitlement to the proceeds of a sale by the judgment debtor

A judgment mortgage has broadly the same effect as a conventional mortgage and can be enforced with a mortgage suit.