Land And Conveyancing Law Reform Act 2009

Power of sale.

100.— (1) Subject to subsection (3) and sections 101 to 107 , a mortgagee or any other person for the time being entitled to receive, and give a discharge for, the mortgage debt may sell or concur with any other person in selling the mortgaged property provided—

[CA 1881, ss. 19(1)(i), 20, 21(4), 21(6) and (7)]

[CA 1911, s. 5(2)]

(a) following service of notice on the mortgagor requiring payment of the mortgage debt, default has been made in payment of that debt, or part of it, for 3 months after such service, or

(b) some interest under the mortgage or, in the case of a mortgage debt payable by instalments, some instalment representing interest or part interest and part capital is in arrears and unpaid for 2 months after becoming due, or

(c) there has been a breach by the mortgagor, or some person concurring in the mortgage, of some other provision contained in the mortgage or any statutory provision, including this Act, other than a covenant for payment of the mortgage debt or interest,

and provided in each such case 28 days’ notice in the prescribed form has been served on the mortgagor warning of the possibility of such sale.

(2) The power of sale shall not become exercisable without a court order granted under subsection (3), unless the mortgagor consents in writing to such exercise not more than 7 days prior to such exercise.

(3) At any time after expiration of the 28 days’ notice given under subsection (1), a mortgagee may apply to the court for an order authorising exercise of the power of sale and on such application the court may, if it thinks fit, grant such authorisation to the applicant on such terms and conditions, if any, as it thinks fit.

(4) An application under subsection (3) may be made with an application under section 97 (2) and, in such case, both may be heard together.

(5) A mortgagee is not answerable for any involuntary loss resulting from the exercise or execution of the power of sale under this Chapter, of any trust connected with it or of any power or provision contained in the mortgage.

(6) Once the power of sale becomes exercisable, the person entitled to exercise it may demand and recover from any person, other than a person having in the mortgaged property an estate or interest in priority to the mortgage, all deeds and documents relating to the property, or its title, which a purchaser under the power of sale would be entitled to demand and recover.