Article 1 of the first protocol to the European Convention on Human Rights provides that
- every natural or legal person is entitled to the peaceful enjoyment of its possession.
- no one shall be deprived of its possessions except in the public interest and subject to the conditions provided for by law and 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 secure the payment of taxes or other contributions or penalties.
Laws commonly provide for the compulsory acquisition of property. Short of actual acquisition that may provide for mandatory easements and rights in favour of public authorities or adjoining land. For example, there may be provision for putting through pipes, drains and wires through land.
Traditionally compensation has been paid on account of the direct taking of property or substantial interference with property rights. See the section on the Irish Constitution’s guarantees on property rights. In contrast, land regulation in the public interest has rarely attracted compensation. The planning legislation formerly allowed for generous compensation, but this has been significantly restricted since the early 1990s.
Exceptionally regulation short of direct interference may be so significant as to amount to a deprivation of the property rights in which event compensation may be required under the Convention\’s principles.
The European Court of Human Rights has expressly allowed for controls on the use of property which might reduce its value without compensation. Generally, the grant of planning permissions and even their withdrawal without compensation may be permissible. The reformed Irish planning legislation retains compensation for the withdrawal of permission.
The legislation restricts the freedom of landowners in relation to the use of their land. There has been longstanding legislation in relation to public health issues, such as sanitation, water supply, and removal of nuisances and dangerous buildings. In modern times, planning law significantly restricted the freedom of landowners in relation to the use of their property and the undertaking of any work on it.
Where the regulation amounts in effect to expropriation, the European Court has held that compensation may be required. If, however, a use remains even significantly less profitable use than it might have been assumed, it appears that compensation is not required under the Convention. It may be difficult, however, to judge at what point the restriction becomes so significant as to become tantamount to expropriation.
A French law which compelled landowners to allow hunting on their lands for the purpose of improving the organisation of hunting was found to be a breach of the protocol. It was held to be incompatible with the applicant\’s beliefs and to place a totally disproportionate burden on him, which was not justifiable.
In a case involving military aircraft, severe noise nuisance was found to breach the applicant\’s rights and was held, potentially, to be a partial expropriation, such that land might become unusable or unsaleable.
In a UK case on squatter’s rights, it was found that squatter\’s rights were not a deprivation of the owner’s property rights. There had been an initial opinion to the contrary and the UK had reformed its law in consequence.
In a case involving Austria, rental control legislation which interfered with contractually agreed rents constituted an interference with the landlord\’s property rights. The rent control was particularly severe as the landlord was unable to regain control of the property. Other legislation, from time to time provides rent freezes and extensions. Tenants’ rights and limitations on the right to eviction have been found to be consistent with the Convention.
The right of a mortgagee to repossess property has been found consistent with the Constitution as necessary to protect the proprietary rights of the lender.
The development of public sector infrastructures such as waste sites and major industrial development involves a balancing of private rights and public interest. States are allowed a very wide measure of latitude in balancing rights.
Where the level of nuisance and interference is overwhelming, the court may find that its fair balance has not been struck and that the Convention’s protections have been thereby breached. In some cases where an individual must bear an unreasonable burden relative to the whole community, the payment of compensation may make the position fair.
The Convention protection applies not just to real property but to rights associated with real property, personal or movable property and intangible rights. The latter includes such things as shares, licenses, goodwill, intellectual property, rights, planning permission, ownership of debts, and rights to take legal actions as well as legitimate expectations in relation to property rights.
Difficult questions can arise as to the nature of certain types of assets. Licences and franchises may have significant capital value. Formerly taxi licenses had significant value in Ireland because of a restriction on the number which could be created. Pub licenses once had very high value but the liberalisation of rules at the start of the Century has led to a significant diminution in their value.
The European Convention has been interpreted to cover quasi-property rights such as pension rights and even contributing state pensions and similar benefit schemes. This carries the potential that the Convention would apply to limitations and processes which may lead to limitations of such rights.
Article 8 provides that everyone has the right to respect for his private and family life, his home and correspondence. It provides that there should be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society, in the interests of national security, public safety, the economic well-being of the country, for the prevention of disorder or crime for the protection of health or morals, or for the protection of rights and freedom of owners.
In the present context, the Article is discussed in relation to home and housing issues. In this context, the home includes a conventional dwelling house and also other places which are used and treated d as a home. It has been held that the Convention that interference with the home is permissible in the context of rent restrictions and suspension.
Provision for social housing is permissible and the procedures and policies in relation to allocation should comply with fair procedures. Generally, the enforcement of planning law in a proportional manner would be compatible with the Convention. In the United Kingdom, procedures to evict travellers were held to be fair when they were coupled with offers of alternative accommodation in the case of eviction from unlawful sites.
The (Irish) State does not create direct rights to housing. In some limited categories of cases, housing may be required to be provided to avoid breach of the obligation, to avoid inhuman and degrading treatment. If a person suffers from special needs, in certain circumstances, issues of rights under the Convention may arise. The failure to provide a home and accommodation may adversely impact the person’s privacy and dignity.
The English courts have held that in failure to provide housing for a prolonged period, a housing authority breached the applicant’s Article 8, right for suitable accommodation. The applicant was disabled, wheelchair-bound and housed in temporary accommodation such that her living space was severely confined. The accommodation was such as failing to provide reasonable privacy of family life for her family.
However, it does not follow persons are entitled to a home by law under the Convention. The case turned on its very particular circumstances and the lack of respect for the individual\’s private family life. Only in such exceptional circumstances is it the case the Convention may require a positive act to provide housing.
The failure on the part of a local authority to landlord take action against other tenants who are acting in a seriously antisocial manner or causing a nuisance may constitute a breach of the conventions. The authority will have a significant margin of discretion in making its decision.
The fair procedures protections of the Convention are relevant in the context of termination of tenancies in public providing housing. Traditionally, legislation has allowed for summary eviction of public authority tenants.
The question of legal aid in this context may also arise. The European Court of Human Rights held in the context of Irish applicants that civil legal aid is required in certain cases to assert and defence certain key human rights.
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