Human rights and mortgage repossession: beyond property law using Article 8

Nield, S. and Hopkins, N. (2012) Human rights and mortgage repossession: beyond property law using Article 8. Legal Studies: The Journal of the Society of Legal Scholars, 33 (3). pp. 431-454. ISSN 1748-121X doi: 10.1111/j.1748-121X.2012.00257.x

Abstract/Summary

Following the Supreme Court decisions in Manchester CC v Pinnock and Hounslow CC v Powell, this article examines the possible impact of Article 8 of the European Convention on Human Rights and Fundamental Freedoms upon protection of the home in creditor repossession proceedings. The central argument advanced is that, although occupiers may not all be protected through property law, they may enjoy an independent right to respect for their home under Article 8, which should be acknowledged in the legal frameworks governing creditor's enforcement rights against the home. The article suggests that the most common creditor enforcement route, through mortgage repossession proceedings, falls short in this regard. It takes as its primary focus the treatment of children in such proceedings to provide an example of the potential for a human rights-based property protection heralded by these two Supreme Court decisions.