## Facts

- Mr. and Mrs. Clark mortgaged their home to secure a loan.
- After defaulting on mortgage payments, the mortgagee, Horsham Properties Group Ltd, exercised its power of sale derived from both the mortgage deed and the Law of Property Act 1925.
- The property was sold to a third party, who sought possession.
- The Clarks contended that the sale and their resulting eviction violated their rights under Article 8 of the European Convention on Human Rights (ECHR).
- The process allowed the mortgagee to sell the property without prior court intervention, subject to statutory conditions.

## Issues

1. Whether the exercise of the mortgagee’s power of sale without prior court oversight is incompatible with the mortgagor’s rights under Article 8 ECHR.
2. Whether lack of judicial scrutiny renders the process unfair or disproportionate and thus contrary to human rights protections.

## Decision

- The Court of Appeal held that the statutory power of sale, as set out in the Law of Property Act 1925, is not incompatible, in itself, with Article 8 ECHR.
- The court determined that the statutory framework was clear and accessible and qualified as “in accordance with the law.”
- The Court found that statutory safeguards—such as the requirement for mortgagees to act in good faith and obtain the best price—provided sufficient protection for mortgagors.
- Judicial review and other remedies were deemed adequate to ensure fairness, and the Human Rights Act 1998 does not mandate prior judicial scrutiny for every interference with a person’s home.
- The court ruled that the interference with Article 8 rights was proportionate to the legitimate aim of protecting mortgagees' contractual rights.

## Legal Principles

- Under the Law of Property Act 1925, a mortgagee can exercise the power of sale without court involvement if statutory conditions are satisfied.
- Article 8 ECHR provides a right to respect for one’s home but permits interference in accordance with law and where necessary in a democratic society.
- The requirement for interference with Article 8 rights to be “in accordance with the law” is met where statutory procedures are clear and accessible.
- Proportionality is assessed by considering both the effectiveness of statutory safeguards and the presence of legal remedies after the event.

## Conclusion

The Court of Appeal confirmed that a mortgagee’s exercise of the statutory power of sale, without prior court intervention, does not, of itself, violate Article 8 ECHR, provided the statutory safeguards are followed and legal remedies are available, thus maintaining the balance between contractual rights and human rights in mortgage law.

Horsham Properties Group Ltd v Clark [2009] 1 WLR 1255