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
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