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United Kingdom: Court dismisses mortgage default rights complaint

A woman, thrown out of her rented home after her landlord parents defaulted on mortgage repayments, has lost her human rights fight against the United Kingdom.

In its 29 November decision in the case of F.J.M. v. the United Kingdom (application no. 76202/16) the European Court of Human Rights unanimously declared the application inadmissible. The decision is final.

The case concerned a possession order against a tenant after the landlords, who were also her parents, defaulted on their mortgage payments.

The applicant complained under Article 8 (right to respect for private and family life and the home) that the UK courts had refused to carry out a balancing exercise between her rights as a tenant to not lose her home and the mortgagee’s right to be repaid.

The European court reiterated that losing one’s home was an extreme interference with one’s rights which in principle should lead to a weighing up of the competing rights involved by an independent tribunal.

However, in a judgment concerning Croatia, the court had recently clarified that there is a distinction between public authority landlords and private landlords. In particular, where possession is sought by a private individual or body, the balancing of the parties’ competing interests can be embodied in domestic legislation, and it is not, therefore, necessary for an independent tribunal to weigh up those interests again when considering a claim for possession.

The court confirmed this distinction in the present case, finding that the domestic legislation had taken account of the competing interests at stake and that the finance company (as mortgagee) and the applicant (as the mortgagor’s tenant) had entered voluntarily into a contractual relationship in respect of which the legislature had prescribed how each of their convention rights were to be respected.

Indeed, if a private tenant such as the applicant could require an independent tribunal to conduct a balancing exercise before making a possession order, the resulting impact on the private rental sector would be wholly unpredictable and potentially very damaging.

The authorities had therefore been entitled to regulate tenancies such as the applicant’s through legislation intended to balance the Convention rights of the individuals concerned.

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