Some of the biggest property developers in the country have written to the Minister for Housing saying that unless he “engages meaningfully” with them over plans to ban no-fault evictions for large landlords from next month, they may take him to court.
The letter was written by David Daly of October Investments and has the support of Michael Stanley, the chief executive of publicly listed home builder Cairn Homes, Sean Mulryan of Ballymore Group, Pat Crean of Marlet Property Group and Dublin housebuilder Bernie Carroll.
This all-star cast has warned Minister for Housing James Browne that his proposal is an “unjust attack” on a large landlord’s property rights under the Constitution. It would also be in breach of the right to property of Article 1 Protocol 1 of the European Convention on Human Rights.
They then go on to warn: “In the unlikely event that you refuse to engage with us, then quite obviously, it follows that we expressly reserve all of our rights. We trust this will not be necessary and look forward to engaging with you.”
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Despite the Don Corleone “offer that can’t be refused” undertone, it may well be a bluff. Property developers relying on the European Convention on Human Rights must be a first. Either way Daly and his fellow travellers are very much poking a bear and may regret it.
There is no right to a home or housing in Irish law. The Constitution provides for very strong property rights tempered by a requirement that they are exercised in a way compatible with “the principles of social justice” and “the exigencies of the common good”.
In theory, this gives the courts a lot of scope to limit property rights, but they have historically been very reluctant to do so – as you might expect in a state where a campaign for land rights were at the core of its independence movement.
Things changed dramatically during the Covid pandemic and lockdowns. After decades during which governments of every stripe said the Constitution prevented them from interfering with the rights of landlords, they were suddenly able to freeze rents and ban evictions. And the courts did not demur.
The election of Catherine Connolly as President is proof of underlying discontent and what a united political left can achieve. The basic framework for a campaign to enshrine a right to housing already exists but is moribund
To a certain extent, the cat is now out of the constitutional bag when it comes to landlords’ rights. On balance, the no-fault eviction ban for large landlords coming in next month should survive a constitutional test.
Things can go one of two ways now. Browne can accede to meeting the developers to discuss their concerns about the impact of the changes and the “imperative that banks, investors and foreign funds have a high degree of certainty and confidence around the valuation of their investments”.
He should assure them that anyone investing in Ireland can have a high degree of certainty and confidence that – as is the case of other stable, rich democracies that they invest in – there is no guarantee that the state can or will prefer their financial interest over the needs of its citizens, although it has a pretty good track record of doing so. In effect he will be putting it up to Daly et al to sue him.
Or else he could cave and postpone the measure for a few years which tends to be the preferred option in Irish politics when principle conflicts with pragmatism. It would be a gift to the opposition.
Whichever option he chooses is thus fraught with political danger but the first is the better one.
Ireland is overdue a national cathartic moment hooked on a constitutional referendum. We have not really had one since the 2018 referendum on abortion. Both it and the earlier marriage referendum tapped into a disconnect between the public mood and the existing constitutional position.
The potential for another such upheaval over the right to housing is certainly there. The election of Catherine Connelly as President is proof of underlying discontent and what a united political left can achieve. The basic framework for a campaign to enshrine a right to housing already exists but is moribund.
Home for Good, a coalition of housing charities including the Simon Community and Focus Ireland, was established in 2021 to campaign for a referendum on the right to housing but appears to have fizzled out. Likewise, Raise the Roof, a trade union-led campaign for housing rights, has been on the go since 2018 but seems to have withered on the vine.
Nothing would reinvigorate these campaigns and unite the left like a full-on constitutional battle over the right of large landlords to get rid of tenants when they want. Even if the Government won the case, it would bolster the argument for a referendum to clarify the situation. If the Government lost it would make the case for a referendum all but unanswerable.
If and when Browne meets Daly and his colleagues, he might want to walk them through the consequences of all this for them before showing them the door.
