That leave be granted to introduce a Bill entitled an Act to provide that adequate consideration be afforded to the principle of proportionality in the context of proceedings which are directed at the repossession of a mortgaged property in which the mortgagor ordinarily resides, and for that purpose to amend the Land and Conveyancing Law Reform Act 2009; and to provide for related matters.
This Bill is about keeping people in their homes. Its purpose is to ensure the correct application of EU law by the Irish courts when dealing with repossession. Central Bank of Ireland statistics from September 2016 show that of 738,506 mortgage accounts relating to principal dwellings, 79,562 accounts were in arrears, of which 56,350 were in arrears of over 90 days. The figures also show that 43,543 principal dwelling mortgage accounts were in arrears of over one year while 34,500 had arrears over two years. On the week before Christmas there were around 25 repossession cases in Kerry, 50 in Tipperary, 85 in Athlone and more in Waterford. A total of 421 homes were repossessed in the third quarter of 2016 according to the figures from the Central Bank. All this has created real fears of repossession among those in the most vulnerable situations. This has the potential to put unprecedented strain on the housing sector.
The programme for Government of May 2016 states that the Government wants to keep families in their home and avoid repossession in so far as possible and that it will protect the family home and introduce additional long-term solutions for mortgage arrears cases. The Bill provides a viable solution which is completely consistent with the Government's stated objectives and the desire of the Independent Alliance to address these crises. There is no current legislation specifically aimed at providing a framework of evidence to be considered by the courts. In a great many cases, there is no detailed consideration of the debtor or his or her individual circumstances required by EU law. This has led to a situation whereby there is no existing means in the courts to examine on its merits the essential fairness or unfairness of the repossession order. This Bill addresses the gap in the law. While Irish courts give the court registrar a wide discretion, EU law already obliges domestic courts in the EU, including Irish courts, to examine customer contracts, including mortgage contracts before them, of their own motion, for unfair contract terms, although this does not take place in all cases. While the Irish courts have a discretion in granting, adjourning, varying, postponing, suspending or executing possession orders, EU law already requires consideration of additional matters. Once EU law becomes applicable in mortgage cases, under the EU Charter of Fundamental Rights the Irish courts can consider the proportionality of granting, adjourning, varying, postponing, suspending or executing possession orders. This proportionality test is based on proposed legislation. Essentially it means if there is a choice between several appropriate measures to achieve such an objective, rightly pursued by legislation, the courts must adopt the least onerous one and the disadvantage caused must not be unreasonable to the end pursuit.
Everyone in the House knows from people calling to their constituency office and attending their clinics that there are families, mothers, fathers, and children suffering in the nightmare scenario of losing their home. The phone calls, the letters and the court appearances are never ending for them. Many are still working, although not earning as much as they once did, and still are trying to pay some part of the mortgage each month. However, they are still hopelessly falling into arrears. There appears to be no end to the stress and grief that has engulfed these families. In many cases there has been gross interference with the right to a quiet and dignified family private life but very little is being said on their behalf because they are embarrassed into silence. They remain afraid and alone as they dread the prospect of a new letter falling through the letter box each morning, not to mention the trauma and the repetition of the court appearances that take place in unfamiliar surroundings. In many cases, families are afraid to seek help. Very often they attend court without legal representation. They expect a legal system that vindicates their rights. Sadly in many instances this is not happening. It is incredible that nine years after the crash we are still talking about mortgage arrears in this House. The problem remains real and we have been elected by the people to solve the problem. We must act now. The mortgage arrears crisis can and must be resolved. In more recent Irish court judgments, the courts are increasingly turning their attention to the issues I have just raised. The legacy of the housing price crash remains to bear witness to the silent suffering citizens. It is suffering that must be brought to an end and we must show the political will to do so.
I would like to put on the record the names of the people who have helped me with this Bill in addition to my colleagues here. They are Padraic Kenna, Julie Sadlier, Eugene Deering and Sarah Clarke.