This presentation outlines procedural rights and defences to home reposession proceedings in Ireland

1. DEFENCES TO HOME
REPOSSESSION*
20 November 2017
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

2. Personal rights
Consumer
protection
Debt
collection

3. UNCERTAINTY HAS LEAD TO AN
UNPRECEDENTED SITUATION IN IRISH
HISTORY
Legal landscape
Political
landscape
Popular outrage
and activism

4. LEGAL
LANDSCAPE
Consumer Rights
Legal System
Under Pressure
Attitudes of the
Courts
Human
(personal) Rights

5. POLITICAL
LANDSCAPE
Adoption of
legislation
Scale of the
problem
Bank
bailouts
Banking
scandals

6. POPULAR
OUTRAGE AND
ACTIVISM
Support for lay
litigants
End of shame
Protests
Media and political
commentary

7. Summary Judgment for Plaintiffs
Civil Bill for Possession
Communication from Bank/ CCMA
Arrears
Unless…

8. … you can raise a reasonable defence

9. Unfair terms in consumer contracts
Cancellation of Contracts
Proportionality of repossession
Tracker mortgages

10. UTCC
• The European Communities (Unfair Terms in
Consumer Contracts) Regulations (SI 27/1995)
• Consumer protection: “natural person buying
goods/ services for personal consumption”
• Correct imbalance between parties: Good faith.
Ambiguity is construed in consumer’s favour.
• Core terms exception (clear, intelligible)
• Effect of finding of unfair term? Strike out

11. UTCC
• No set list. Grey list – indicative only
• Examples (per Central Bank):
terms unreasonably limiting the liability of the trader or
regulated financial services provider to the consumer; terms
unreasonably restricting the rights of the consumer
terms unreasonably allowing the trader or regulated financial
services provider to terminate or alter the contract or alter the
product/services to be provided under the contract without
recourse to the consumer
terms that are not expressed in plain, intelligible language

12. UTCC
• Aziz (ECJ) judgement upheld here in AIB v Counihan:
own motion assessment by court
• Case by case – subjective to individual circumstances
at the time of signing the contract
• Limitations: not an absolute obligation – consumer
must engage
• Several test cases before courts on a number of terms
• EBS Ltd. V Kenehan & Ryan (Oct 2017) – appeal
against repossession order successful as EBS did not
put Circuit Court in a position to examine terms of
mortgage

13. RIGHT TO CANCEL DISTANCE CONTRACTS
AND OFF-PREMISES CONTRACTS
• S.I. No 224/1989 – European Communities
(Cancellation of Contracts Negotiated Away from
Business Premises) Regulations 1989; applies to
contracts signed pre-2013
• Only apply to contract between a trader and a
consumer
• Protects consumers approached at work, home –
caught off guard, at great risk of succumbing to
pressure tactics
• Twice as many requirements for off-premises selling
as on-premises, including cooling-off period of 7 days

14. RIGHT TO CANCEL DISTANCE CONTRACTS
AND OFF-PREMISES CONTRACTS
• Section 4 of SI No 224/1989:
• Contract is not enforceable against Consumer unless
he received a “cancellation notice”.
• “A statement that the consumer has a right to cancel
the contract if he wishes and that this right can be
exercised by delivering or sending a written
cancellation form to the person mentioned in
paragraph 4 within a period not being less than 7 days
following the making of the contract.”
• Format for cancellation form is set out in SI.

15. RIGHT TO CANCEL DISTANCE CONTRACTS
AND OFF-PREMISES CONTRACTS
• A contract is outside the scope of the
Directive on Contracts Negotiated Away
from Business Premises if the visit was at
the express request of the consumer, and
the contract was for goods and services
that the consumer knew was part of the
trader’s commercial activities.

16. RIGHT TO CANCEL DISTANCE CONTRACTS
AND OFF-PREMISES CONTRACTS
• If this is the case both sides are bound to return
the situation as if the contract never existed
• i.e. the Bank is entitled to receive the sum that it
loaned to you

17. RIGHT TO A HOME AND PROPORTIONALITY
• EU Charter of Fundamental Rights - Article 7:
• Respect for private and family life
Everyone has the right to respect for his or her private
and family life, home and communications.

18. RIGHT TO A HOME AND PROPORTIONALITY
• European Convention on Human Rights, Article 8:
• Right to respect for private and family life
• 1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
• 2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others.

19. RIGHT TO A HOME AND PROPORTIONALITY
• A house is not a home!
• Definition of home:
• “…‘Home’ is an autonomous concept which does not depend on
classification under domestic law. Whether or not a particular
premises constitutes a ‘home’ which attracts the protection of Article
8(1) will depend on the factual circumstances, namely the existence of
sufficient and continuous links with a specific place….Thus, whether a
property is to be classified as a ‘home’ is a question of fact and does
not depend on the lawfulness of the occupation under domestic law”
• The meaning of ‘home’ in this context is not
dependent on any private property rights in the
property that comprises one’s home. (Brady & anor v
Wicklow Co Co, Barrett J.)

20. RIGHT TO A HOME AND PROPORTIONALITY
• Not an absolute right – balance between interests of
parties
• Factors to be considered include:
• Level of arrears
• Level of payments being made
• Rights of children/disabled/elderly
• Alternative accommodation
• Interests of the bank – did they buy the loan at a
discount?

21. DATA PROTECTION REQUESTS
• Using Data Protection Law to request all personal
data that a bank in connection with the mortgagors
• Includes information on how the bank is accounting
for mortgage loans – material in assessing
proportionality of bank’s claim
• Banks are interpreting request narrowly – only where
a person’s name is attached to the data
• Complaint to Data Protection Commissioner who has
powers to compel banks to provide personal data

22. RIGHT TO A HOME AND PROPORTIONALITY
• Caselaw –
• Zehentner v. Austria (ECtHR, 2009) – Loss of home
“extreme form of interference … proportionality of
the measure determined by an independent tribunal
in the light of the relevant principles under Article 8”
• “efficient proceedings” not sufficient justification
for the sale of the sale of the debtor’s home
• Shoreline DAC v Hayes (Nov 2017) – PIA rejected by
investment fund for low interest rate; Baker J. “not a
bank”

23. TRACKER MORTGAGES
• Banks were motivated to get people off loss-making
tracker mortgages … borrowing became very
expensive for banks
• Central Bank October 2015 – “broader examination of
tracker mortgage-related issues covering ...
transparency of communications with and contractual
rights of tracker mortgage borrowers”
• Roughly 30,000 mortgage holders and their families
affected; all major players involved
• Practice Direction of Waterford County Registrar

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