The increasing impact of article 8 ECHR issues on mortgage possession claims

Article 8 of the European Convention of Human Rights (ECHR) provides that everyone has a right to respect for his home. A possession claim by a mortgagee for mortgage default will inevitably interfere with a person’s article 8 rights. The ECHR allows such rights to be lawfully interfered with if it is ‘in accordance with the lawand is necessary in a democratic society in the interests of…the economic well-being of the country, for the preventions of disorder or crime… or for the protection of the rights… of others’.

Section 36 of the Administration of Justice Act 1970 (AJA) (as amended) allows a stay in the execution of a possession order only if it can be established that the borrower is likely to be able to repay sums owed to the mortgagee within a ‘reasonable’ period. Those sums include the arrears that the mortgagor has incurred plus interest, together with any further sums due within the reasonable period. Further, section 36 allows the court to impose conditions with regard to payments by the borrower of ‘any sum’ secured by the mortgage.

If there is little prospect that the borrower can repay the mortgage arrears and ongoing instalments of the mortgage, his application under section 36 will likely fail. Increasingly, borrowers have turned to the wider discretion afforded to the courts by article 8 of the ECHR and the courts have had to consider the application of human rights defences in possession claims…

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