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Mortgages - Short Thinking and Shortfalls
Mortgages - Short Thinking and Shortfalls

A recent article in the Law Society Gazette made me smile regarding the obvious pickle senior judges had got themselves into over the limitation period on allowing lenders to pursue shortfalls in mortgage actions.

Isn't it incredible that 25 years after the last major statute on "limitation" the issues of how long a lender has to pursue a shortfall on a mortgage account is being decided.

I think it is a fair assumption that we, the great British public, understand that if you don't pay your mortgage, your home is at risk. Recent figures from the Bank of England show that home owners have borrowed 198bn using mortgage equity withdrawal since the start of 2000, encouraged by rising house prices and low interest rates.

Sherforce Enforcement Officers have now levied on a staggering 23,000+ items in inventories stored on their new database system. From the mundane to the highly unusual, Sherforce Enforcement Officers are making their mark as smooth operators in the field of enforcement.

But what exactly what is the risk if we can't make the monthly repayments and end up in default - and is that risk really spelt out to borrowers?

A spate of recent cases in the Court of Appeal involved decisions where the borrowers had defaulted and homes had been repossessed. A sad scenario. But if repossession is the consequence of default - for whatever reason - the borrower surely needs to know for how long they are on the line for the shortfall.

Confusion as to limitation periods to chase the shortfall and or interest had led to senior Law Lords coming up with various interpretations of the Limitation Act 1980.

But in the case of Bristol & West Plc v Bartlett we now seem to have a definitive decision. The borrower is now faced with a 12 year period in which the lender can chase for the shortfall, which runs from the date of the first default and not from the date of repossession or sale of the property. So far as interest is concerned this runs for a six year period.

So the question then has to be, how is this going to be communicated to borrowers? Does the strap line of "your home is at risk if you do not keep up payments" need to be extended to "your home is at risk if you do not keep up payments and we are entitled to pursue you for 12 years for any shortfall in the amount owed to us from the date of your first failure to make a payment". I know it doesn't quite have the same ring - but it's a lot more sobering - and means we, the great British public, will have a more informed understanding of what it means to default on a mortgage.

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