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If a mortgagee’s receiver sells a property then is that sale subject to Human
Rights Act restrictions? Typically, this issue will arise if it is a residential property
and the defaulting borrower argues that there would be a breach of Article
1 (‘every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one should be deprived of his possessions...’).
The High Court has held that HRA 1998 is of no relevance, because receivers
are acting under purely contractual powers. Accordingly, it would seem
that arguments based on HRA 1998 are doomed to failure. Note, however,
that there still remains the discretion of the court to stay or adjourn
possession proceedings when dealing with residential properties (under s36
Administration of Justice Act 1970). Horsham Properties v Clark [2008] EWHC
2327© Practical Lawyer
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November 2008 |
