000			03227cad a22003615a 4500
001			L146362
008			090112e20081008xxk f v 000 0 eng d
035			_a(Sirsi) u146362
041	0		_aeng
245	0	0	_aHorsham Properties Group Ltd v Clark & Ors _h[electronic resource]
260			_c2008
520			_a[2008] EWHC 2327 (Ch), 8 October 2008. The court found that the Law of Property Act 1925 S101 did not impact the rights of mortgagors under the European Convention on Human Rights 1950 by permitting mortgagees to sell properties prior to obtaining a court order for possession. Interpreted as a whole, the Act put into place the private bargain between mortgagor and mortgagee, as opposed to overriding this mechanism. Claimant company (H) claimed possession of a property belonging to defendants (B), who had defaulted on mortgage payments. H appointed a receiver to sell the property at auction and at the point of sale, the property was transferred to H. B was still in immediate possession of the property, with H instigating an instant claim. It fell to the court to determine whether the European Convention on Human Rights had been breached, with B submitting that the Law of Property Act could only be compatible with the Convention if it was construed as requiring a mortgagee to obtain an order for possession or an application requiring sale. Held: judgement for claimant. B had lost the right of redemption to the property and the receiver's power to sell derived purely from the mortgage contract and as such, the issue for determination never actually arose. Regardless, an important legal matter had arisen that deserved to be answered - on the flexibility of the 1925 Act. The court found that the exercise of statutory power of sale under S101 of the Act after default by the mortgagor was not a deprivation of possession under the Convention and neither was the sale of the property. Any deprivation of possession was justifiable in the public exercise and a test of proportionality by the court was deemed inappropriate. The right of the mortgagee to sell a property was historically established as part of the bargain between lenders and borrowers and was deemed as an essential aspect of lenders' ability to issue mortgages at fair rates of interest.
521			_aAdvanced
590			_aKA
650	2	4	_aLAND REGISTRATION ACT 1925
650	2	4	_aLAW OF PROPERTY ACT 1925 S101
650	2	4	_aSHAWS (EAL) LTD V PENNYCOOK
650	2	4	_aROPAIGEALACH V BARCLAYS BANK
650	2	4	_aWILSON V FIRST COUNTY TRUST LTD (NO. 2)
650	2	4	_aWOOD V UNITED KINGDOM
650	2	4	_aHORSHAM PROPERTIES GROUP LTD V CLARK & ORS
650	2	4	_aBARCLAYS BANK PLC V ALCOM
650	2	4	_aADMINISTRATION OF JUSTICE ACT 1970
650	2	4	_aBIRMINGHAM CITIZENS PERMANENT BUILDING SOCIETY V CAUNT
650	2	4	_aCONVEYANCING ACT 1881
650	2	4	_aFOUR-MAIDS LTD V DUDLEY MARSHALL (PROPERTIES) LTD
650	2	4	_aHARROW LBC V QAZI
650	2	4	_aJAMES V UNITED KINGDOM
651		4	_aEngland and Wales _y1543-
690			_aPROPERTY AND LAND LAW-RESIDENTIAL
856	4	0	_uhttps://www.bailii.org/ew/cases/EWHC/Ch/2008/2327.html _zView the item free of charge online at www.bailii.org...
942			_n0
999			_c109137 _d109137