Property Rights Notes

Character of Property Rights and Early Cases

Re Article 26 and the Health Amendment Bill, 2004

Issue

• Character of Property Rights

Judgment (Murray CJ)

• Anything action which is authorised by Article 43 can not be unjust within the meaning of Article 40.3.2

• In the case of an interference with property rights, compensation will be a material issue and a substantial interference without compensation will rarely be justified.

• In analysing whether legislation is repugnant to the Constitution, the Court should

  • examine the nature of the property rights at issue

    • consisted of right to reclaim money that was wrongfully taken from them,

    • it was assignable right that could be passed to heirs in case of death,

    • despite originating in statute, it is a constitutional property right

  • examine whether the legislation is a regulation of those rights in accordance with the principles of social justice

  • examine whether the legislation is required to delimit those property rights in accordance with the exigencies of the common good.

    • this is an expropriation of property from persons of modest means in the financial interests of the State

    • for this to be justified the State must be able to point to the danger of an extreme financial crisis or fundamental disequilibrium in the public finances

  • in light of the above, decide whether the legislation is an unjust attack on property.

• The Bill is an unjust attack on the right to property.

Buckley v Attorney General (SC 1947)

Facts

1. The honorary treasurers of Sinn Féin in 1924 entrusted the central funds of the Party to the court.

2. The current party began an action against the Attorney General looking to reclaim the funds.

3. The Oireachtas passed the Sinn Féin Funds Act to stop the litigation and redistribute the money to charitable cause.

Issue

• Property Rights

Judgment (O'Byne J)

• If the applicants’ allegations in their statement of claim are correct they would have a right to the money.

• The Act in this context would abrogate all their rights to the funds.

• Art. 40.3.1: Property is a personal right.

• Art. 43: man has the right to property which no positive law can deprive him of, yet these rights may be delimited in the interest of the common good.

• This does not just mean the institution of property, but also individual rights to property.

• The exigencies of the common good is not just for the legislature to decide, but also subject to judicial review, hence its omission from the directive principle of social policy.

• There was no conflict between the common good and the applicants’ rights. Only in the case of addressing such a conflict could this law be saved.

Attorney General v Southern Industrial Trust (SC 1956)

Facts

1. The second defendant purchased a car on a hire purchase scheme from the first defendants and tried to export it to the UK before he had paid off the loan.

2. It was seized by a Customs Officer on the grounds that it had been unlawfully exported from Ireland, and refused to return it to the first defendants who were still the lawful owners of the car.

Issue

• Property Rights – Exigencies of the common good – Role of courts

Judgment (Lavery J)

• The declaration and definition of the right to property in Article 40.3.2 is to be found in Article 43.

• This

  • acknowledges the right to private ownership of external goods

  • guarantees that this right shall not be abolished

  • allows the regulation and limitation of such rights with a view to reconciling their exercise with the exigencies of the common good.

• Confiscation does not amount to an abolition of property rights, as property rights are not absolute.

• Whether the regulation and delimitation of property rights is done in light of the common good falls to the Oireachtas to decide.

• This is distinguishable from Buckley as in that case there was no possibility that the forfeiture was in the interest of the common good.

Blake v Attorney General (SC 1981)

Facts

1. The Rent Restrictions Act of 1960 makes the basic rent(the rent payable under contract with allowance made for ratepayers) for a dwelling based on the net rent on 8th June 1966(tied by earlier legislation to rents charged on the dwelling in 1914 or 1941.)

2. The plaintiffs contended that this was an attack on their property rights.

3. The Attorney General contended that this case fell within the remit of Art 43 and was a measure in the interest of the common good.

Issue

• Property Rights – Rationality of legislation

Judgment (O'Higgins CJ)

• Article 43 is a protection of the institution of property(which is antecedent to positive law), not individual articles of property.

• Southern Industrial Trust(the rights guaranteed in Article 43 are those found in Article 40)rejected.

• The statutory provisions determining the level of rents(Part II of Act), constitute an attack on the property rights of the owners of affected dwellings, by reason of their permanent and mandatory nature, their arbitrariness and the fact that rent is fixed at an uneconomic level.

• This scheme would require some manner of compensation would be required for those adversely affected to make it fair.

• In the absence of compensation these provisions are contrary to s. 40.3 s.2.

• The restrictions on the landlord recovering control of property(Part IV) after the death of a tenant to the detriment of his/her family is not unconstitutional, provided the restrictions are not made on a basis that are constitutionally unfair or oppressive, or have due regard to property rights of landlord and rights to be accorded to the tenant in the interest of the common good.

• As its operation is inextricably linked with the unfairness of Part II above, this part of the Act is also unconstitutional.

Dreher v Land Commission (SC 1984)

Facts

1. The plaintiff's lands were purchased under a compulsory purchase order and he was paid in land bonds.

2. The land bonds subsequently fell in value and he sought to be paid in cash or sufficient land bonds to realise the original amount.

Judgment

1. Walsh J

• The Act sets out...

Buy the full version of these notes or essay plans and more in our Irish Constitutional Law Notes.