Sunday 18 August 2019

Tim Ryan: 'We must swap caution for courage to fix housing crisis'

Building anger: People protest in a ‘Raise the Roof’ rally outside the Taoiseach’s office at Government buildings in Dublin. Photo: Reuters
Building anger: People protest in a ‘Raise the Roof’ rally outside the Taoiseach’s office at Government buildings in Dublin. Photo: Reuters

Tim Ryan

The ongoing housing crisis and the need to try to provide long-term security of tenure for tenants has focused attention on ways of facilitating the required legislation.

The recent discussions on the latest Residential Tenancies (Amendment) Bill, which passed all stages in the Dáil on Wednesday night, heard, for example, further demands for a change in the law that would compel landlords to sell residential units with the tenants in situ rather than opting to serve notices of termination as at present. Landlords argue, and probably correctly so, that selling with sitting tenants would reduce the value of the units considerably, as it would limit their appeal to first-time buyers, for example.

Similarly, there have been calls for an extension of the current six-year tenancy cycle, known as a part four tenancy, whereby landlords can end a tenancy without reason after four or six years (depending on the length of the tenancy) to an indefinite period as a further measure to prevent tenants being made homeless.

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Opposition spokespersons and others regularly call for the introduction of both of these and indeed further measures to ease the current crisis in homelessness. A regular excuse given by Housing Minister Eoghan Murphy and the Custom House, home of the Department of Housing, Planning and Local Government, is that such measures may be unconstitutional and that this is the advice proffered by the Attorney General's office - although such advice has not been published to date.

A review of the historical debate on property rights casts major doubt on whether this regular mantra from the Custom House is justified. The interpretation of property rights principally relates to Articles 40.3.2 and 43.2 of the 1937 Constitution. Article 40.3.2 says: "The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen", while Article 43.2 says: "The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good."

The 1996 Constitution Review Group, the most comprehensive review of the Irish Constitution ever undertaken and chaired by Dr TK Whitaker, noted that the fact these two separate constitutional provisions deal with property rights has itself given rise to much confusion. It also noted that the language of Article 43 in particular is "unhappy" and that several commentators have drawn attention to the contrast between both articles. Indeed, the report quoted a famous dictum, which said the articles were "a classic example of giving a right on the one hand and taking it back on the other".

The review group also noted that both Article 40.3 and Article 43 are particularly open to subjective judicial appraisal and went on to recommend that the provisions dealing with property rights should be contained in a single article. This recommendation was never implemented.

The All-Party Oireachtas Committee report on the Constitution in 2004 echoed many of the concerns of the 1996 review group and noted "the existence of these two separate constitutional provisions has caused the courts considerable difficulties over the decades. In the end, however, the courts have concluded that the two provisions inform each other so that both have to be taken into account when considering Constitutional protection of property rights".

Nowhere were these two articles considered in more detail than in the report of the 'Committee on the Price of Building Land' (the Kenny Report), which was published in 1973. The committee was chaired by High Court judge Mr Justice John Kenny, and among its recommendations to stop the spiralling increase in the price of development land was that building land could be acquired at existing use value plus 25pc.

Such was the intensity of the debate on this committee that the two civil servants from the Department of Local Government (the commissioning department) dissented and produced a minority report.

The majority report stated that there is, however, clearly a conflict between the exercise of rights of property and the exigencies of the common good in the case of services and potential building land.

It stated: "The free market principle means that the owners of such land get unearned profits to which they have not contributed in any way and which result in substantial additions to the cost of the buildings subsequently erected. The community, however, has got a legitimate claim to such profits because citizens in their capacity as taxpayers bear the costs of servicing such lands and hence the community has a right to be recouped."

Despite the soaring costs of building land and the corruption that followed over the succeeding decades resulting in expensive and lengthy tribunals of inquiry, no government ever implemented the recommendations of the Kenny Report and today, 46 years later, there are still regular calls for their implementation in the Houses of the Oireachtas and on the pages of national newspapers.

In fact, the report's proposals were effectively proven to be constitutional when the Supreme Court in 2000 approved the part V section of the Planning and Development Bill 2000 - referred to it to test it constitutionality by President Mary Robinson - which provided an onus on developers to provide land for social and affordable housing at existing use value.

In its 2004 report, the All-Party Oireachtas Committee, whose legal adviser was Gerard Hogan, now a judge of the European Court of Justice, said that in relation to property legislation there was evidence "that the Oireachtas was too cautious in this area in the past". Judging by recent comments from the Custom House, it would appear the same ultra-conservative approach adopted by its civil servants 46 years ago, when they felt compelled to produce their own minority report, still prevails.

It will do little to help resolve the current housing crisis at a time where vision and courage are required.

  • Tim Ryan is a former board member of the Residential Tenancies Board (RTB) and is currently researching a PhD thesis on housing policy at the Department of Social Work and Social Policy in Trinity College

Irish Independent

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