A/HRC/34/51 foreclosure is a common practice for arrears in mortgage payments, regardless of the cause of the arrears and the consequences of foreclosure. Principles of international human rights law requiring, for example, that no eviction take place if it will lead to homelessness, have not generally been properly applied by domestic courts to evictions linked to defaults on mortgages or rent. The Special Rapporteur is concerned that in the area of housing, the “remedy” of eviction from homes is routinely applied in the case of unpaid debts, even though there are many other options available for courts to enforce repayment or restructuring of debts, short of invoking the State power to seize or evict individuals from their home, such as imposing repayment plans or garnishing wages. Foreclosures and evictions have severe effects on health and well-being and may result in the loss of custody of children. 66 Those are unacceptable consequences of default on mortgage or rent payments when other options are available. They are, moreover, generally contrary to international human rights law. 59. In some jurisdictions, foreclosures for mortgage default are not permitted and alternative procedures are limited by statute. Foreclosure was abolished in Ireland following the 2008 financial crisis, with an equivalent procedure to foreclosure provided, however, to the public asset management company, the National Asset Management Agency.67 In Brazil, foreclosures are prohibited by law where residential properties are used by their owners for dwelling purposes, although creditors have developed ways of circumventing those restrictions.68 In China, there are provisions for many other options for collecting outstanding debts, with foreclosure only being permitted when all other options have been exhausted.69 In Spain, however, mortgage arrears are not considered to have been discharged by a foreclosure, which means indebted homeowners are required to continue to make payments on outstanding arrears even after having lost their home. 70 60. In the first case to be considered by the Committee on Economic, Social and Cultural Rights under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, I.D.G. v. Spain, the Committee considered States’ obligations to ensure access to justice in the context of mortgage foreclosure. As a result of a domestic court’s lack of diligence, the author of the communication had not received notification of mortgage enforcement proceedings and received no other communication prior to an auction order. In those circumstances, the Committee found that the author’s right to access to justice to protect the right to housing had been violated. The Committee found that “such notice in respect of a foreclosure application needs to be adequate, in accordance with the standards of the Covenant applicable to the right to housing”.71 The Committee clarified that Spain should ensure that no eviction takes place without due process guarantees, affirming that “the right to housing should be ensured to all persons irrespective of income or access to economic resources”.72 61. In that case, the author was able to remain in her home and the Committee did not address the question of whether foreclosure and eviction from housing, potentially into 66 67 68 69 70 71 72 Colau and Alemany, Mortgaged Lives, pp. 165-167. See Ireland, Land and Conveyancing Law Reform Act 2009 and National Asset Management Agency Act 2009. Bruno Martins, Eduardo Lundberg and Tony Takeda, “Housing finance in Brazil: institutional improvements and recent developments”, Inter-American Development Bank Working Paper, No. 269 (2011), pp. 8-9. Available from www.iadb.org/document.cfm?pubDetail=1&id=36411946. Tien Foo Sing, Yonglin Wang and Daxuan Zhao, “Impact of foreclosure laws on mortgage loan supply and performance”, 10 September 2016. Available from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2837333. Colau and Alemany, Mortgaged Lives, pp. 165-167. See Committee on Economic, Social and Cultural Rights, I.D.G. v. Spain, para. 11.1. See the Committee’s general comment No. 4 (1992) on the right to adequate housing, para. 7. 17