An Ennis barrister says there’s light at the end of the tunnel for struggling mortgage holders.
Clare Colleran Molloy, who’s also a local councillor, has pointed to an EU law which protects homeowners by requiring that the mortgage contract be assessed for fairness.
It was tested last December in the High Court, where it was deemed that “fairness inquiries” are needed, and now Councillor Molloy is appealing to fellow barristers, judges and home owners to make use of the legislation.
Councillor Molloy has been speaking with Clare FM’s Fiona Cahill about how the legislation works:
The ‘fairness inquiry’ triggers the application of certain elements of EU legislation, and allows for a second assessment, called the ‘proportionality test’.
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” says Councillor Molloy.
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.
Clare Colleran Molloy says that “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 enshrined since 2009 and the fact that some homeowners have lost their homes without the benefit of these protections is nothing short of a complete and utter disgrace”.
She believes that 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” she says.
“I like many public representatives have, over the past number of years, 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” concluded Colleran-Molloy.