West Law Report

No interference with property

Posted in Times Law Report by mrkooenglish on November 16, 2008

From The Times
October 29, 2008
No interference with property

Chancery Division
Published October 29, 2008
Horsham Properties Group Ltd v Clark and Another

The exercise of a statutory power of sale under section 101 of the Law of Property Act 1925 was not a deprivation of possessions for the purposes of article 1 of the First Protocol to the European Convention on Human Rights, protecting the right to property.

Mr Justice Briggs so held in the Chancery Division on October 8, 2008, when granting the claimant, Horsham Properties Group Ltd, the present registered proprietor, possession of premises as against the second defendant, Carol Ann Beech, a former registered proprietor of the property.

HIS LORDSHIP said that the main issue to be decided, which had potentially wide-ranging implications, was whether section 101, construed as it and its predecessors had been since 1860, infringed the Convention rights of mortgagors, and residential mortgagors in particular, by permitting mortgagees to overreach the mortgagor’s rights in relation to the mortgaged property by selling it out of court, without first obtaining a court order for possession, or an order for sale.

His primary reason for his conclusion that there had been no relevant deprivation of possessions was that section 101 served to implement rather than override the private bargain between the borrower and the lender.

It was as far removed from the concept of state intervention into private rights through overriding legislation, which lay behind article 1, as it was possible for legislation to get.

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