Housing & ECHR

Protection of Property

Traditionally Constitutions and human rights documents protect  political and property rights. The European Union and the European Court of Human Rights has come to recognise socio-economic rights.

Arguments in favour of socio-economic enforceable against the State are countered by the argument that, judges are not in the best position to make socio-economic policies. Where there are limitations on resources, choice and allocation are matters for policy, set by elected representatives rather than by the courts.

The Universal Declaration of Human Rights guarantees the right to a standard of living adequate for the health and well-being of himself and his family…. including housing. Article 11.1 of the UN International Covenant on Economic Social and Cultural rights 1966 provides

“the state parties to the present covenant recognise the rights of everyone to an adequate standard of living for himself and his family including adequate food, clothing and housing and the continuous improvement of living conditions. The states parties shall take appropriate steps to ensure the realisation of this right recognising …. the essential importance of international cooperation based on free consent.”

ECHR & Property

Article 1 of protocol 1 of the European Convention on Human Rights guarantees the right to property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

There is no right to accommodation or housing under the European Convention on Human Rights. Article 8 provides for protection of private and family life. Cases have been decided under Article 6 in relation to balancing of landlord and tenant rights in relation to eviction procedures and rent control.

Private Life / Home

Article 8 provides that everyone has a right to respect for his private and family life his home and correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security or public safety or the economic well-being of the country for the prevention of disorder or crime, protection of health or morals or for the protection of the rights and freedom of others.

The concept of a home under the Article is broad and covers different types of tenure as well as caravans and mobile homes. However, in cases where matters of public housing regulation have come before European Court of Human Rights, it has indicated that states have a wide margin of appreciation, given the complexity social and political nature of the subject matter.

The Court and the Council of Europe has indicated in its guidance that in particular where general social and economic policy considerations arise in the context of Article 8, the scope of the margin of appreciation will depend on the context of the case with particular significance attaching to the extent of the intrusion into the personal sphere of the Applicant. This is because Article 8 concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and to a person’s settled and secure place in the community.

The margin will vary according to the particular matters in play. Because the loss of a home is an infringement on the right, procedural guarantees have been scrutinised. The earlier Irish provisions on the recovery of social housing did not meet the requisite standard.

Rent Controls

Rent controls have been considered under the European Convention on Human Rights. The starting point is the states’ considerable margin of appreciation in relation to implementing social and economic policy.

The courts have upheld the power of states to interfere  with the private rental market, provided that legislation does not severely reduce below the level of market rent. It accepted that legislation must be general and that it would be difficult to make situation specific. The court did not interfere with the states actions, notwithstanding that the rent reductions were significant.

CPO Ground Rents

Challenges to legislation providing for the compulsory acquisition of ground rents have been rejected. The court upheld the statutory scheme notwithstanding that it may have the effect of transferring assets to wealthy persons at the expense of persons who were less wealthy.

Where there is a statutory scheme of general application under which a great number of properties are intended to be included and certain criteria are decided by the Oireachtas for eligibility in the scheme, it is reasonable that a certain level of margin of appreciation be permitted in relation to the manner in which the scheme is devised. In such scheme there will inevitably be premises which are for one reason or another, covered by the scheme even though the particular category was not the intended target of legislation.

It may be  impossible to avoid such a situation arising no matter how carefully the criteria for eligibility into the scheme are crafted.

Enfranchisement

In a challenge to freehold enfranchisement in Norway the court held legislation as inconsistent with the Convention which compulsorily acquired interests of freeholders for a fraction of their value. Property prices dwarfed the original leasehold rents and a statutory right to redeem the lease was granted to lessees. It was in general terms and was potentially applicable to cases of hardship as well as no hardship.

The court distinguished between ordinary tenancy relationships and ground leases which were different in nature. In an ordinary leasehold arrangement, the tenant leases the building provided by the landlord. In the case of a ground rent the tenant invest in building the  property with the landlord deriving rent from the value of the land. The court accepted that the balancing of rights was legitimate notwithstanding the dramatic difference between the market value and the price of acquisition.

Nonetheless the stark contrast between the market value of the ground and the value for acquisition meant that the burden of achieving social policy fell disproportionately unfairly on landlords. The scheme allowed indefinite renewals and was applicable to all classes of housing including holiday homes.

UK Enfranchisement

A challenge to the UK  compulsory acquisition / leasehold enfranchisement legislation in residential cases by owners of leasehold reversions on substantial properties in London was rejected by the European Court of Human Rights. The court rejected the claim.

The  elimination of  what are judged to be social injustices is a fundamental function of the democratic legislature. Modern societies consider housing of the population to be a prime social need, the regulation of which cannot be left entirely to market forces.

The margin of appreciation is wide enough to cover legislation aimed at securing greater social justice, notwithstanding that it interferes with existing contractual relations between private parties and confers no direct benefit on the State or community at large. Therefore, the aim pursued by the leasehold reform legislation was a legitimate one.