Housing & Constitution

Irish Constitution and Housing.

There is no express right to housing under Irish Constitutional law. The importance of a dwellinghouse is implicitly recognised in the Constitution. Article 40.5 protects the inviolability of the dwelling house as a place of repose and refuge from the World. These principles have been used in the context of challenges to local authority summary powers to obtain possession without sufficient due process.

The government requested the Housing Commission to consider a referendum on housing. As of May 2024, it appears that this is unlikely to happen in the life of the current government.

The proposal for a housing referendum is party driven by the claimed effect of the property rights protections in the Constitution. This has been the subject of considerable debate for many years. It has been pointed out that the courts have indicated in Constitutional cases that the State has a considerable margin of appreciation to meet the common good.

The Protection for Property

Article 40.3.2 provides the State shall in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.Article 43 guarantees that

1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.

2     1° The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.

2° The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.

Case Law

The case law of the Irish Supreme Court has shown itself open to counterbalance to property rights. The court have indicated that in reconciling the property protections with the exigencies of the common good, that the objective of the impugned provision must be of sufficient importance to warrant overriding the Constitutionally protected right. It must relate to concerns that are pressing and substantial in a free and democratic society.

The means chosen must pass a proportionality test. They must be rationally connected to the objective and not be arbitrary unfair based on irrational considerations. The means should impair the right as little as possible and be such that their effects on rights should be proportionate to their objectives. – Heaney v Ireland  1994 Costello J

In the reference to Supreme Court of the Employment Equality Bill the Supreme Court found provisions unconstitutional effectively because it placed the burden of particular social issues on a limited class group of people. In that case, employers were to be expected to take substantial steps to accommodate disabled employees. The Supreme Court indicated that  to transfer the cost of solving one of society’s problems to a  particular group by requiring the employer to bear the cost of special facilities which the disabled person may require was unconstitutional.

Kenny Report

The Kenny report in 1973 chaired by Mr Justice John Kenny proposed measures for controlling the price of development land. In particular it proposed that the  compensation payable in respect of the acquisition of development land would be  agricultural value +25%. It sought to secure that a substantial part of the increase in value of land referable to infrastructure and services would be secured for the benefit of the community.

The majority report proposed that local authorities be given the right to acquire undeveloped land at existing use value +25% by designating them in designated areas schemes. It argued that the local community had a legitimate interest in the profits from serviced land referred to as betterment. The minority report recommended that areas would be designated by the local authority in which local authority would have the first option to purchase land for sale. A levy of 30% could be charged on the disposal of land.

The regulation of building land price was claimed by many including two minority report members who were civil servants in the Department, to be an infringement of private property rights protected by Article 40.3.2 and Article 43.2. However, the majority report argued that the rights had to be balanced with the State’s like to delimit by law the exercise of these rights in accordance with the exigencies of the common good.

Report Conclusions

The Report discussed the Constitutional right to private property. It referred to a number of Supreme Court cases which had been had decided since the 1937 Constitution allowing for a significant governmental limitation of the rights. In particular, it referred to Central Dublin Development Association v Attorney General, in which Kenny J. summarised the right to private property as follows

• The right of private property is a personal right;
• In virtue of his rational being, man has a natural right to individual or private ownership of worldly wealth;
• This constitutional right consists of a bundle of rights most of which are founded in contract;
• The State cannot pass any law which abolishes all the bundle of rights which we call ownership or the general right to transfer, bequeath and inherit property.
• The exercise of these rights ought to be regulated by the principles of social justice and the State accordingly may by law restrict their exercise with a view to reconciling this with the demands of the common good.
• The Courts have jurisdiction to inquire whether the restriction is in accordance with the principles of social justice and whether the legislation is necessary to reconcile this exercise with the demands of the common good.
• If any of the rights which together constitute our conception of ownership are abolished or restricted (as distinct from the abolition of all the rights), the absence of compensation for this restriction or abolition will make the Act which does this invalid if it is an unjust attack on the property rights.

In light of these criteria, the majority report did not consider that the proposals infringed the Constitution. In particular, the measure of compensation for land compulsorily acquired was not limited to the market price. It indicated that the Constitution did not prohibit giving local authorities a right to acquire property at a price less than market value provided the legislation is just.

Rent Control

The Rent Restriction Acts 1960 and 1966 were found unconstitutional in 1981. Legislation had frozen rents on certain historical dates which by the late 1970s had become significantly, less than market value. The legislation had originally been enacted during World War I. In some cases, the rents were fixed by prices 70 years earlier or very little relationship to the market rent.

It was difficult to impossible to repossess these properties. The landlord had responsibility for repairs in some cases. The Supreme Court indicated that the absence of rent review was inherently unjust. There was no compensation where  rental income was frozen regardless of the very significant diminution in the value of money.

The court decided that the restriction of the property rights of one group of citizens for the benefit of another was unconstitutional. It was done without compensation and without regard to the financial capacity needs of either group. There was no limitation of the period of restriction. It was found to be unfair and arbitrary and therefore an unjust attack on property rights of landlords of controlled dwellings, contrary to Article 40.3.2 of the Constitution.

The government prepared the Housing (Private Rented Dwellings) Bill 1981 which was referred to the Supreme Court by the President under Article 26 of the Constitution. This provided for graduated rent increases increasing to the full market rent over five years. It was found unconstitutional. The properties subject to rent restriction were arbitrarily chosen and had the effect of benefiting one group of persons at the expense of another.

Rent pressure zones were introduced in 2016 providing for rental increases of 4% per year. This was later amended to refer to consumer price index.