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What are Possession Proceedings?

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  • Written By: M. Lupica
  • Edited By: John Allen
  • Last Modified Date: 05 November 2016
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    Conjecture Corporation
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“Possession proceedings” is a general term used to describe any court hearing whose end is to settle a dispute over a piece of property. It can be used to describe an action over the dispute of ownership of any object, but it is most commonly used to describe the proceedings dealing with the division of property after divorce. In the United Kingdom (UK), mortgage possession proceedings are the hearings in a court action where a lender forecloses on a home upon default by the mortgage-holder.

One of the main issues to be decided in a divorce is the division of property accrued by the former husband and wife during their marriage. Though the rules of division upon dissolution of a marriage vary from jurisdiction to jurisdiction, they are typically complex and turn on the details of how and when each piece of property was purchased. The hearings in which the court decides how the property is to be divided are called possession proceedings.

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At these divorce possession proceedings, several things are to be considered. Each party is to present evidence of how and when the items were acquired and argue, based on that evidence, how the law states that property should be disposed. Disposition may be made in whole or in part to either party or, if the nature of the item makes it impractical to divide it in part, by sale and division of proceeds. Further, the possession proceedings are where courts consider the parties’ prenuptial or postnuptial agreements, if either exists. At the end of these hearings, the court will issue a decree describing the method of division of the marital property.

In the UK, the term “possession proceedings” takes on a different meaning in the context of mortgages. Lenders may bring an action for mortgage possession proceedings in the event the mortgage-holder defaults on his or her loan payments. Typically, this will be a relatively quick hearing whereby the lender will summon the delinquent party to court to argue for foreclosure. In the interest of public policy, the mortgage-holder will be able to present reasons for his or her delinquency on payment of the loan and make the case that he or she will be better able to make payments in the future.

These mortgage possession proceedings could have one of two outcomes. If the mortgage-holder is able to show his or her inability to pay the loan is temporary, the court will likely mandate that the parties work out a payment plan. However, if the mortgage-holder cannot show that he or she will be able to pay off all back payments as well as make the future schedule of payments in a reasonable amount of time, foreclosure will likely be granted.

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