Housing crisis: There is no constitutional block to rent freezes in Ireland

Labour and Sinn Féin have committed to rent freezes in their general election manifestos. Fianna Fáil stated that on foot of legal advice that a general rent freeze would be unconstitutional, it would not support such a measure. The Government frequently states that constitutional property rights prevent the adoption of various responses to the current housing crisis. In response, critics (including the Green Party in its manifesto) call for a referendum to alter the Constitution’s protection of property rights and/or to include an individual right to housing.

Property rights are perhaps unique among individual rights in their exclusionary nature

In reality, the barriers that the Constitution poses for legislative measures that control how property can be used are not as clear as is often made out. There is significant scope in our existing constitutional order for property rights restrictions, the extent of which can be uncovered only through the introduction and testing of new measures.

Property rights are perhaps unique among individual rights in their exclusionary nature: the essence of my right ‘to have’ is everybody else’s duty to ‘keep off’. Where constitutions protect property rights, judges are called upon to review policy decisions on the basis that such decisions ‘take away’ property rights, either outright through processes such as compulsory purchase, or through controlling how property can be used.

Common good

At the same time, legislatures must be able to act to secure the common good. The Irish constitutional protection for property rights does both these things: it protects individuals and recognises the collective interest in the distribution and use of resources.

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Specifically, it requires the State to maintain a private ownership system and to ensure that it is open to everyone (precluding, for example, the kinds of rules against owning property that at various times in our past applied to women and Catholics). It empowers the State to restrict the exercise of property rights to secure the common good and social justice.

This means that no distribution of property is frozen for all time by the Constitution.

The courts usually apply this protection by assessing whether a legislative interference with an individual’s property rights is proportionate, considering the impact on the individual in light of the relevant public interest. In their decisions, they generally give significant leeway to the political branches of government in making decisions about the distribution and use of resources.

Three high-profile Supreme Court decisions from the 1980s and 1990s have attracted a lot of attention, as these suggested a more interventionist approach, appearing to prohibit property rights restrictions that are not generally applicable but rather burden some individuals or groups to secure a public good.

Two of these decisions concerned rent control. However, the core legislation involved in those cases was very outdated, producing extreme results that were blatantly unfair. The courts in both decisions were not satisfied that the State had established a clear justification, rooted in social justice and the common good, for the interference with property rights that was involved in those rent-control measures.

On balance, there is ample scope within the current constitutional framework to introduce measures that restrict the exercise of property rights

Furthermore, the Supreme Court has repeatedly upheld the constitutionality of legislation that targets some groups in society with distinct burdens designed to secure the public interest, most notably in relation to austerity measures introduced during the economic crisis. It has also suggested that those who make profits from the use of their property may be required to make contributions to securing the public interest that go beyond general taxation requirements.

Clear objective

Taking this together, where a clear objective is identifiable for a restriction on the exercise of property rights that plausibly secures the common good and social justice and is procedurally fair, there is every chance of such legislation surviving constitutional challenge. There is no absolute right to begin or continue any profitable use of property guaranteed by the Constitution.

Irish constitutional property law is complex, and not always entirely consistent. This is not surprising – we require judges to make difficult decisions about the fairness of the distribution of the benefits and burdens of collective life. Faced with this challenging task, they often defer to solutions to complex social problems that are arrived at through the democratic process.

On balance, there is ample scope within the current constitutional framework to introduce measures that restrict the exercise of property rights, for example to respond to the current housing crisis. This is already seen in recent changes such as rent pressure zones, vacant site levies, and restrictions on the use of properties for short-term letting.

It is only through such experimentation – which always creates potential for constitutional challenges – that we can learn how our courts today view the balance between the interests of the individual and the wider community, and the ideas of the common good and social justice, that are enshrined in our Constitution.