Barrett v Halifax Building Society

Barrett v Halifax Building Society (1996) 28 HLR 634

Sale of property ordered where borrowers in negative equity

Facts

A possession order granted to the respondents over the applicant’s home was suspended to allow the applicants time to find a purchaser for the property. The applicants found buyers for the property, but the respondents were not amenable to the proposed sale as the applicants were in negative equity. The applicants applied for an order directing the sale of the property under section 91(2) of the Law of Property Act 1925.

Issues

The applicants contended that the order for the sale of the property should be granted because if the respondents were to take over the sale, then there would be further delay before the sale could be completed. They also provided expert evidence, which demonstrated that a lower price is usually obtained where a property is sold after repossession by a lender.

Decision/Outcome

Section 91(2) gives the Court the discretionary power, at the instance of the borrower, to order the sale of mortgaged property against the wishes of the lender if justice requires it. The only reason advanced by the respondent lender as to why the proposed sale should not proceed in this case, was that it would break with their established policy not to permit borrowers in negative equity to conduct the sale of their own property. The Court did not consider this to be a valid consideration, which should be taken into account in deciding whether or not to order the sale of the property. Accordingly, the Court made the order as requested by the applicants.

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