Home-loan debtors and the fear factor

 

Sir, – John McDaid, chief executive of the Legal Aid Board, sets out the range of State measures to address mortgage repossession cases (Letters, February 1st). The dedication, commitment and hard work undertaken by all those in Money Advice and Budgeting Service, Abhaile and the Legal Aid Board providing invaluable assistance for those in mortgage distress are clearly making progress, particularly through the insolvency arrangements.

Nonetheless, the vast majority of home-loan debtors appearing before Irish courts have no legal representation. One study of court lists in 2018 showed some 70 per cent of households in that situation facing corporate institutions with full legal representation. The blanket assertion that home-loan debtors have no defence is particularly troubling. Many mortgage contracts being enforced by ECB-supervised institutions in Irish courts contain unfair contract terms, and breach EU consumer law. Indeed, we saw similar State agency deference before the full extent of the 40,000 tracker mortgage scandal emerged. This State agency position may be at odds with constitutional rights on the dwelling, and especially Article 47 of the EU Charter of Fundamental Rights. Significantly, the position of tenants in buy-to-let properties in mortgage enforcement proceedings seems to be outside the Abhaile remit.

Of course, the insolvency arrangements do not work for everyone, such as those with low incomes, and those who are unable to pay any mortgage costs. But there are proposals to extend these options, which enable a court to have regard to the overall proportionality of any application for a repossession order, the circumstances of all those resident in the property and any proposals which would enable the borrower to remain in the property. Where the institution seeking possession was not the original mortgagee, a court could be empowered to examine the amount the institution actually paid for the mortgage. This would end the uncertainty and fear facing those at risk of home loss and free up much court time.

It might be true to say that those at risk of losing their home on account of mortgage arrears have nothing to lose by making contact with Abhaile, but surely we should aim for a better outcome than this. How about a commitment that every effort will be made to ensure no-one will lose their home as a result of mortgage arrears arising from poverty, illness or personal difficulties, and the State will ensure that courts are fully informed of existing EU law that protects consumers, the personal circumstances of all those in the household, and the effects on all those people of a loss of home?

The Programme for a Partnership Government (May 2016) stated: “The new Government wants to keep families in their homes and avoid repossessions insofar as is possible. We will protect the family home and introduce additional long-term solutions for mortgage arrears cases . . . Essentially we are seeking to create a framework that removes fear and brings predictability to a difficult process.” – Yours, etc,

Dr PADRAIC KENNA,

Director Centre for Housing

Law, Rights and Policy,

NUI Galway.