The Impact of the Right of Access to Adequate Housing on the Enforcement of Mortgage Agreements and Other Credit Agreements

Journal of Contemporary Roman-Dutch Law, Vol. 75, p. 632-657, 2012

26 Pages Posted: 4 May 2013

Date Written: November 2, 2012

Abstract

A natural person consumer who enters into a mortgage agreement with a credit provider-mortgagee enjoys significant protection under the National credit Act (NCA). This protection is not only of a substantive nature such as capping of interest rates, but entails elaborate procedural compliance by a credit provider who wishes to enforce a mortgage agreement. As such the NCA requires compliance with certain pre-enforcement procedures and also requires that further procedural requirements be met when the matter serves before court. It is submitted that further procedural protection is also afforded to a consumer by virtue of section 130(4) which sets out specific powers of a court when it adjudicates a credit agreement matter. In addition to the extensive procedural protection afforded to a natural person mortgagor by the NCA, the Act also provides extensive debt relief remedies to distressed natural person consumers who are over-indebted and/or to whom reckless credit has been extended. These remedies also bring with them another layer of significant procedural compliance to be observed by credit grantors. Where successfully applied for, these debt relief remedies may have a variety of alleviating consequences, ranging from a temporary moratorium on debt enforcement, to debt restructuring and /or suspension, to partial or complete setting aside of the rights and obligations of the consumer.

Keywords: right to housing, mortgage agreements, credit agreements

Suggested Citation

Van Heerden, C. M., The Impact of the Right of Access to Adequate Housing on the Enforcement of Mortgage Agreements and Other Credit Agreements (November 2, 2012). Journal of Contemporary Roman-Dutch Law, Vol. 75, p. 632-657, 2012, Available at SSRN: https://ssrn.com/abstract=2259652

C. M. Van Heerden (Contact Author)

University of Pretoria ( email )

Physical Address Economic and Management Sciences
Pretoria, Gauteng 0002
South Africa

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