Power of sale

Horsham Properties Group Ltd v Clark [2008] EWHC 2327 (Ch)

The exercise by a mortgagee of the power of sale without an order of the court under s101 of the Law of Property Act 1925 does not breach art 1 of the First Protocol to the European Convention on Human Rights. Any deprivation of possession constituted by the exercise of the power after a relevant default by the mortgagor is justified in the public interest, and requires no case-by-case exercise of a proportionality discretion by the court. It reflects the bargain habitually drawn between mortgagors and mortgagees for nearly 200 years, in which the ability of a mortgagee to sell the property offered as a security without having to go to court has been identified as a central and essential aspect of the security necessarily to be provided if substantial property based secured lending is to be available at affordable rates of interest.