Mortgage arrears eviction – can you delay Eviction? Practical Help for Homeowners in Mortgage Arrears

March 30, 2026

When a warrant for eviction is imminent, the law can give owner‑occupiers an opportunity to obtain time and an orderly resolution. Section 36 of the Administration of Justice Act 1970 permits the Court, in mortgage possession proceedings involving a residential home, to pause or delay enforcement (i.e repossess the property) where it appears likely that the owner can, within a reasonable period, pay the sums due or remedy the default.

This article explains the factors the Courts take into account in exercising that discretion.

What is Mortgage Arrears?

This means missed mortgage payments.

If you do not pay your mortgage on time, the unpaid amount becomes “arrears.” It is the total sum you owe to the lender because the monthly payments have not been made.

What the Law Says

Cheltenham & Gloucester Building Society v Norgan [2001] EWCA Civ 1717 is the seminal authority on what constitutes a “reasonable period to delay an eviction.” The Court of Appeal established a practical and structured approach: the appropriate benchmark is normally the outstanding contractual term of the mortgage. The Court must assess whether arrears can be cleared by affordable instalments over that period, using full, realistic financial evidence. Judges were warned against repeated short-term adjournments which merely defer the inevitable and not help a property owner if it achieves little other than increasing costs the owner has to pay.

LBI HF v Stanford (Ch D, 4 September 2015, unreported) illustrates the breadth of the court’s discretion under s36. The High Court reaffirmed that postponement may be granted even where the original mortgage term has expired if there is a viable route to redemption, such as a realistic sale or refinancing plan. The decision emphasises the court’s willingness to impose substantive conditions designed to protect the mortgagee’s security while permitting the mortgagor a genuine opportunity to remedy the default.

Taken together, these authorities require a balanced exercise of discretion: the Court protects the lender’s security interest and treats the homeowner’s prospects realistically and rigorously.

The legal test the court applies when there are arrears during a mortgage term

  1. Likelihood of remedying the mortgage arrears — the homeowner must demonstrate a realistic prospect of putting the account back on an agreed footing within a reasonable period.
  2. Reasonable period — ordinarily the arrears should be repaid during the remaining mortgage term but exceptional circumstances are considered.
  3. Sustainability of the plan — the proposal must be durable, not a short-term stopgap.
  4. Protection of the lender’s security — the court will weigh prejudice to the mortgagee and may impose conditions (timed payments, sale deadlines, or provision for enforcement if terms are breached).

The court’s discretion is wide but often governed by these structured considerations.

If an Eviction Is Looming: Act Fast.

If you are in mortgage arrears, have received Court proceedings, a Court hearing or eviction date we can assist. Time is critical once a warrant is contemplated. A focused, evidence-led application under s36 is more likely to succeed than informal negotiations alone.

How we can help

We specialise in defending evictions; preparing robust s36 applications, compiling documentary evidence, drafting sustainable repayment proposals, and negotiating enforceable postponement terms with lenders and the Court. If a warrant is imminent, seek an urgent assessment so that a strategic, legally grounded plan can be advanced to protect your home. Please contact us to speak to a member of our Dispute Resolution team.

Daniel Leitao
Solicitor, Dispute Resolution
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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