Hard-pressed home owners struggling to pay their mortgages could be helped by a little-known EU law, that’s according to Fianna Fáil councillor and practising barrister Clare Colleran-Molloy.
According to Cllr Colleran-Molloy, EU law protects mortgage holders by requiring that the mortgage contract be assessed for fairness. “This was tested first explicitly last December in the High Court when Justice Max Barrett said such ‘fairness inquiries’ about mortgages are needed.”
Cllr Colleran-Molloy is now appealing to legal professionals, judges and home owners in difficulty to help ensure they keep their homes by using the EU legislation. The Fianna Fáil councillor explains: “The ‘fairness inquiry’ triggers the application of certain elements of EU legislation, and allows for a second assessment, called the ‘proportionality test’.
“This is the crucial part. A proportionality test considers whether the eviction of families, parents and their children, from their homes because of mortgage difficulties is to be allowed at all. To my mind, the application of the ‘proportionality test’ will require judges to balance the potential legal necessity of eviction and repossession with the mortgage-holder’s rights as contained in the EU Charter on Fundamental Rights.
“The judicial system will be required to decide whether repossessions and evictions are in compliance with EU law which requires that such drastic action be ‘in pursuit of a legitimate aim and necessary in a democratic society’. The relevant aspects contained in the EU Charter of Fundamental rights include rights of accommodation, privacy, family life, the right to a settled and secure place in the community, the rights of children of the homeowner, and the rights of disabled members of the family.
“Anyone at risk of losing their home should be confident that the protections enshrined under EU law are enforced fairly. These EU regulations have been in place since 1993 and the Fundamental rights have been enshrined since 2009. The fact that some homeowners have lost their homes without the benefit of these protections is nothing short of a complete and utter disgrace.
“This has devastated families and has left the State exposed to damages for failure to safeguard fundamental rights. Families, parents and their children are entitled to a just and fair process. EU legislation presents a real opportunity for such fairness, which if grasped will end the unspeakable trauma, stress and woeful injustice that too many people are forced to endure.
“Like many public representatives, over the past number of years, I have received calls for help from distressed homeowners. This unused, but important application of EU Law could be the difference between a family losing their home or not. Now is the time to test it out, and take a stand on behalf of those at risk,” said Cllr Colleran-Molloy.