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The impact of Horsham Properties Group v Clark & Another - Essay Example

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In 2008, Shelter principal solicitor John Gallagher was quoted by some newspapers to have remarked “It is quite incredible in the 21st century that the law allows the lender to choose whether or not to take possession proceedings and that the borrower then becomes a trespasser in his or her own home.” …
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The impact of Horsham Properties Group v Clark & Another
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The case of Horsham Properties Ltd v Clark & Another EWHC 2327 seeks to settle the issue as to whether s. 101 of the Law of Property Act 1925 violates a mortgagor’s rights over his property. The aforesaid provision grants the mortgagee the power, among others, to sell the mortgaged property in the event the mortgagee falls in arrear in the payment of his loan without prior court order of possession.
In this case, the defendants obtained a loan from GMAC with their property located in Walderslade Road as security. When the defendants failed to pay their obligations, GMAC immediately assigned two receivers to handle the sale of the property subject of the mortgage. The property was subsequently purchased by Coastal Estates Ltd, which also sold the same to Horsham on the same day. Horsham immediately initiated court proceedings to dispossess the defendants of the property subject of the mortgage on the ground that their presence in the property is a trespass considering that the legal right of the property had already been transferred to Horsham by virtue of the sale.
Although the fact that they were in arrears in the payment of their loan was not disputed, the defendants nevertheless, believed that the mortgagee had no right to dispossess them of their property and sell it without first obtaining any court order for the reason that this infringes their rights under the Human Rights Act of 1998 and the European Convention on Human Rights, particularly Article 1 of the First Protocol....
ssess them of their property and sell it without first obtaining any court order for the reason that this infringes their rights under the Human Rights Act of 1998 and the European Convention on Human Rights, particularly Article 1 of the First Protocol (A1FP hereafter). A1FP guarantees peaceful enjoyment of one’s possessions and prohibits their deprivation except in the public interest and with due process as provided by laws. The defendants argued that the relevant provisions of the LPA 1925 must be construed in such a way that they are made compatible with Convention rights and that therefore, the rights of the mortgagee under the LPA, particularly those laid down in s. 101, must be tempered by prior acquisition of corresponding court orders before they can be fully exercise. If this cannot be had, the defendants would like the court to issue a declaration of incompatibility. The Court refuted the defendants’ position and ruled in favor of the claimant. It held, inter alia, that the sale of the property subject of mortgage by the mortgagee in a case where the mortgagor has defaulted does not engage Convention rights under A1FP and ss. 6 and 8 thereof. According to the Court, the right under A1FP is underpinned by “state intervention into private rights through overriding legislation,” which is not the case in the sale of mortgaged property by the mortgagee in the case when payments of the principal loan are in arrears. The sale in this case merely functions to implement the contract between and the expectations of the mortgagor and the mortgagee and does not amount to state intervention. The Court also pointed out that s 101(4) reinforces this implication by providing that the applicability of the provision is subject to a contrary term expressly provided by ...Download file to see next pages Read More
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