Home rights defeated by commercial mortgage

Laura Mather

Matrimonial homes have always had a degree of protection from commercial creditors.

However, in an unreported High Court case last month, an order for sale was made despite the property being the family home, which had been specifically purchased so that the defendants' children could attend specialist schools in the area. 

A commercial creditor obtained an order for sale of the defendant's home, despite the defendant's wife having registered a home rights notice. The couple occupied the property with their two children and it was classed as a matrimonial home.

The order was deferred for only twelve months, which gave the occupants of the matrimonial home very little time in which to relocate.

This case should remind solicitors of the advice which should be given to clients in these circumstances.

Solicitors acting for a client when a commercial mortgage is being secured aganist a property, should now always tell clients that registration of home rights is unlikely to defeat the interests of a commercial creditor. If a solicitor fails to provide this risk, there is a risk that they could be sued for professional negligence.

If you are concerned that your matrimonial home is at risk, or if you have been poorly advised about this by a solicitor, contact us for expert advice and assistance.

We give a free initial assessment if you have a matter which is similar to this, and we have flexible funding arrangements available for clients with strong cases.