property rights

Question 1

articles that cover

Answer 1

• Article 43
  o 1.1 – The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.
  o 1.2 – The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.
  o 2.1 – The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.
  o 2.2 – 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.
• Article 40.3.2 – 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.
• ECHR – Protocol 1, Article 1 – Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
  o The proceeding 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

Question 2

corporate body can sue

Answer 2

• Iarnód Éireann v Ireland – A train carrying pilgrims to Knock derailed after colliding with a herd of cattle, injuring several passengers. Challenged the constitutionality of ss 12, 14 of the Civil Liability Act 1961 – two defendants can be held concurrently liable for a wrong suffered by a plaintiff, they are entitled to enforce the full damages on either of the defendants. The defendant can recover from the other defendant their share of the award, regardless of that defendant’s level of fault. Although only 30% responsible, Iarnród Éireann faced paying 100% of the damages under s.12(1) as the farmer was of limited means.
  o Keane J – proportionality test should be applied to assess the legitimacy of the interference with property righs:
• The State can only invade the property rights only to an extent that is required for the common good. If it is disproportionate, it will constitute an ‘unjust attack’ – Art. 40.3.2
• Heany v Ireland: the objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right.
• ‘Pressing and substantial concerns in a democratic society’ – the means chosen must be:
  1. Rationally connected to the objective and not the arbitrary, unfair or based on irrational considerations;
  2. Impair the right as little as possible;
  3. Be such that their effects on rights are proportional to the objective.
  o Although Keane J. invoked a proportionality test, his reasoning focused more on the justice of the legislation. He stressed that declaring the law unconstitutional would unfairly burden victims—allowing a blameworthy but wealthier defendant to escape liability simply because the co-defendant was impecunious.
  o He argued this would create a greater injustice than the limitation on property rights the law imposes. However, he did not strictly apply the proportionality criteria, highlighting that mentioning the test doesn’t mean it was actually applied.

Question 3

interaction between Art 40.3.2 and Art 43

Answer 3

• Buckley v Attorney General – a case arose over money belonging to the old Sinn Féin party. While proceedings were ongoing, the Oireachtas passed the Sinn Féin Funds Act 1947, which ordered the case to be dismissed and the funds transferred to a Board for charitable distribution. The Plaintiff challenged the Act as unconstitutional.
  o SC held that the Act was repugnant to Article 43 on property rights and thus ultra vires the Oireachtas. It rejected the argument that Article 43 only protected property in general and confirmed that the State could not take property from individual citizens without justification.
  o O’Byrne J – a civil society, such as ours, the exercise of such rights should be regulated by principles of social justice and 2) that, for this purpose, the State may pass laws delimiting the exercise of such rights so as to reconcile their exercise with the requirements of the common good.
  o Article 43 protects the property rights of individual citizens, but these rights are subject to the State’s authority under Article 43.2.
  o While the Legislature may restrict property rights to meet the “exigencies of the common good,” it is not the sole judge of what that entails—courts can review and assess whether such limitations are justified.
• Attorney General v Southern Industrial Trust Ltd & Simon – A car was unlawfully exported by Mr. Simon, who also stopped payments to the finance company that actually owned the car. Customs seized the car under the Customs Acts of 1876 and 1945. The finance company, innocent of any offence, challenged the seizure as a breach of property rights under Article 43.
  o The SC upheld the HC decision, confirming the proceedings were civil, not criminal, and since the car was exported illegally, forfeiture lawfully followed.
  o The issue was whether laws allowing the State to seize property from an innocent owner, without compensation, can ever be justified under the Constitution. The court noted that these laws do not abolish private property or general ownership rights.
  o It was argued that total confiscation of property can’t be considered a mere regulation of ownership rights and is thus unconstitutional. The court firmly rejected this, stating such a position was plainly wrong.
  o Lavery J held that property rights under Art 43 are the same as those protected by Art 40.3.2.
  o He stated that setting the limits of property rights and defining the common good—including laws allowing the forfeiture of property from an innocent person—is a matter for the legislature, even if this seems at odds with Buckley. Therefore, in such cases, taking individual items of property did not breach Article 43.
• Central Dublin Development Association v Attorney General – constitutional guarantee applies both to land and to the rights related to the ownership of the land. Here, the plaintiffs, Dublin property owners, argued that planning proposals under the Act would negatively affect their property rights. They sought a declaration from the HC that several provisions of the 1963 Act were unconstitutional.
  o Held by Kenny J., in dismissing the plaintiffs’ claim:
  1) The plaintiffs had a sufficient interest to bring the challenge.
  2) None of the challenged provisions of the 1963 Act were unconstitutional.
  3) Any quasi-judicial powers given to the Minister or planning authority were strictly limited and subject to appeal to the High Court.
  4) On zoning: the Court held that restricting land use through zoning was constitutional, as it served the common good and involved public participation. It only removed “a few sticks of the bundle” of property rights, not the entire right.

Question 4

unjust attack

Answer 4

• Kelly - In deciding if a limitation on property rights is unconstitutional, two factors must be considered:
  1. is the aim of the restriction justified by the needs of social justice and the common good; and
  2. are the means for achieving the aims compatible with the Constitution.

Question 4

regulations of ownership rights

Answer 4

• Blake v Attorney General – Facts: During the second year of World War I, temporary laws were introduced to cap rents on dwellings with low rateable valuations, and to restrict landlords from recovering possession of such properties. This temporary rent control scheme was repeatedly extended until 1946, when a consolidation Act made the scheme permanent. The 1946 Act was later replaced by the 1960 Act, which was amended in 1967 and 1971. Due to the long-standing nature of the rent restrictions, the rents for controlled dwellings remained artificially low, affected by decades of statutory suppression.
  o The plaintiffs were landlords of properties rented to tenants protected under the Rent Restrictions Act 1960. In 1978, they sought a declaration from the High Court that Parts II (rent control) and IV (possession recovery) of the Act were unconstitutional. It was shown that market rents would be 9 to 19 times higher than what the Act allowed.
  o HC – McWilliam J: Held that the Act was unconstitutional as it arbitrarily selected one group (landlords) to bear a burden without compensation, indefinitely, and without justification, for the benefit of another group (tenants).
  o SC:
  1. The challenged parts of the 1960 Act did not merely regulate property under Art. 43, but amounted to an unjust attack on property rights under Art. 40.3.2°.
  2. The Court did not approve the decision in Attorney General v Southern Industrial Trust Ltd.
  3. The Court assessed the law as it existed at the time of judgment, including all amendments.
  4. Part II (rent control) was found to be an attack on property rights due to its permanent, mandatory, and arbitrary nature, with rent fixed at uneconomic levels.
  5. Compensation would be necessary to make such a scheme fair.
  6. The 1960 Act amounted to an attack on landlords’ property rights by making it impossible to effectively exercise those rights.
  7. Part II specifically constituted an unjust attack under Art. 40.3.2°, as it: restricted one group’s rights for the benefit of another, did not provide compensation, ignored financial circumstances of both groups, set no time limit, and offered no mechanism for rent review.
  8. The provisions of Part IV of the Act of 1960, which restrict landlord control after a tenant’s death, cannot be separated from Part II, as the legislature did not intend for them to exist independently.
  9. While these restrictions are not unconstitutional if they balance property rights and tenant rights in the common good, they are unconstitutional in this case due to their connection with the unfairness in Part II.

Question 5

statutory rent restrictions introduced following Blake

Answer 5

• Re Art 26 & the Housing (Private Rented Dwellings) Bill – five months after the Blake decision, the Oireachtas passed the Housing (Private Rented Dwellings) Bill, 1981 which applied to all dwellings that were controlled under the Act of 1960. It stipulated that the rent for such dwellings would either be the agreed rent or the rent fixed by the District Court. The President referred the Bill to the Supreme Court under Article 26.
  o Held: There was a rebuttable presumption that the provisions of the Bill were not repugnant to the Constitution.
  o However, in the absence of any constitutional justification, s.9 of the Bill, by depriving affected persons of substantial portions of their proper rents, amounted to an unjust attack on their property rights, contrary to Article 40.3.2 (as considered in Blake ).
  o Therefore, s.9(1) of the Bill was held to be repugnant to the Constitution.
• Dreher v Irish Land Commission – the land commission made a compulsory acquisition of lands owned by the plaintiff, the price of which was fixed at 24,000 pounds payable in 8% land bonds, the plaintiff appeared – increased to 9.75%, but he wanted cash, rather than bonds.
  o SC helda State action which is allowed under Art.43 cannot be contrary to Art 40.3.2
  o Deher was not entitled to cash and Land Bonds were appropriate.
  o …It is clear that any State action that is authorised by Art 43 of the Constitution and conforms to that Article cannot by definition be unjust for the purpose of Art 40.3.2°. It may well be that in some particular case social justice may not require the payment of any compensation upon a compulsory acquisition that can be justified by the State as being required by the exigencies of the common good”
  o It is not suggested that the present case is one such, here the plaintiff was entitled to compensation for the land compulsory acquired from him.

Question 6

blake v dreher

Answer 6

• In Blake, the SC confirmed that Article 40.3.2 offers separate protection from Article 43, giving dual constitutional protection to property rights. The State cannot abolish private ownership or the right to transfer, bequeath, or inherit property. Article 40.3.2 also protects individuals in their personal use of property.
• In Dreher, the Court held that if a State action complies with Art 43, it cannot be unjust under Art 40.3.2 – Walsh J., thus linking both articles in assessing property rights.
• Re Article 26 and the Employment Equality Bill, 19996 – this was a presidential reference to the SC under Art 26 regarding the Employment Equality Bill, 1996, specifically section 37(1). The Court found that it violated the right to a fair trial, making it unconstitutional. However, it upheld that the Bill did not infringe on the inviolability of the dwelling or the right to silence.
  o The Court also clarified that Article 40.1 (equality) does not demand absolute equality, as that would undermine its purpose—reasonable distinctions are permitted.
  o The use of the word “accordingly” in Article 43.2.2 of the Irish Constitution is crucial because it links the State’s power to regulate property rights directly to the principles of social justice and the common good. As clarified by Walsh J. in Dreher, any such delimitation of property rights must be:
  1. In line with social justice, and
  2. Necessary for the common good
  o The Court emphasized that deciding what social justice or the common good requires is mainly for the Oireachtas, with limited judicial interference. However, as Hogan notes, the Court’s ruling—that obliging private (but not State) employers to fund disability access was an unjust attack on property rights, reflects a proportionality-based approach, balancing burdens against fairness.
• Re Article 26 and Part V of the Planning and Development Bill – the bill allowed for planning permission to be granted only if landowners cede up to 20% of their land for ‘affordable housing’ at a price calculated by reference to its existing use value or the price actually paid for the land whichever is the greater.
  o Is it an unjust attack under Art 43, 40.3.2, 26.2.1?
  o Dreher over Blake
  o The Court held that providing affordable housing under Part V was a valid goal within the Oireachtas’s power via planning law. Landowners take property subject to planning restrictions, which may affect value. Requiring land for affordable housing as a planning condition was proportionate and minimally intrusive on property rights. It also ruled that compensation for compulsory acquisition need not always equal market value, citing Dreher and O’Callaghan.
  o The Court found the scheme was not arbitrary or unfair, it was reasonable to treat landowners differently based on when they acquired the land. Discrimination in legislation is allowed if classifications serve a legitimate purpose, are relevant, and treat each group fairly. The Oireachtas met these standards. It also upheld the general policy of Part V to provide affordable housing, allowing planning authorities or the Minister discretion in individual cases.

Question 7

the imposition of a preservation order

Answer 7

• O’Callaghan v Commissioners of Public Works – On 26 April 1977, the Plaintiff acquired 46 acres at Drumanagh, Loughshinny, Co. Dublin, including a promontory fort and Martello Tower. On 13 April 1977, the Defendants made a Preservation Order under s.8(1) of the National Monuments Acts 1930–1954, designating the Tower a national monument. The Plaintiff challenged the Order, claiming: (a) s.8 was unconstitutional, and (b) the Order was ultra vires due to lack of notice. The HC dismissed the claim.
  o The Plaintiff relied on Article 40.3.2°, arguing that s.8 authorised an unjust attack on his property rights. He claimed the Preservation Order was unconstitutional as it allowed indefinite interference with his land without any requirement for compensation. This, he argued, was an unjustifiable infringement that failed to balance public interest with constitutional property protections
  o O’Higgins C.J. stated that Article 43 should be read alongside Article 40.3.1 and 2 to ensure both provisions are given effect when assessing whether there has been an unjust attack on property rights, even by the State.
  o He affirmed that the common good requires the preservation of national monuments as part of the nation’s heritage. The court viewed the legislation as fulfilling the State’s duty under Article 43.2.1 and 43.2.2, which allow for regulation and limitation of property rights in accordance with social justice and the common good.
  o He concluded that the legislation was neither arbitrary nor selective in its application.
  o O’Higgins C.J. reaffirmed judgment in Dreher v The Irish Land Commission, highlighting that Article 43 must align with Article 40.3.2. The Plaintiff, having engaged a contractor to plough the fort without notifying the Commissioners, caused significant damage to the monument. Despite being informed of a 1970 notice restricting excavation, the Plaintiff had moved to Kerry, making it difficult for the Commissioners to contact him.
  o The court ruled the emergency was due to the Plaintiff’s actions, justifying the Commissioners’ swift action to preserve the fort. The appeal was dismissed, with reference to O’Callaghan v Commissioner for Public Works, confirming that an “unjust attack” on property rights cannot be justified by other constitutional provisions, including those on social justice or the common good.
  o This case reinforced the relationship between Articles 40.3.2 and 43, followed in later cases like ESB v Gormley and Pine Valley Developments Ltd v Minister for the Environment

Question 8

unreasonable or irrational restrictions - proportionality test

Answer 8

• Early cases struck down arbitrary or outdated property restrictions. Today, such issues are assessed through proportionality, weighing the restriction against its purpose.
• Heany v Ireland – the proportionality test by Costello J:
  o ‘The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:
  a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
  b) impair the right as little as possible, and
  c) be such that their effects on rights are proportional to the objective.’
• In Blake v Attorney General 1982, the Court struck down an outdated rent control scheme as an unjust attack on property rights. O’Higgins C.J. found the legislation arbitrary, noting it applied rent control without considering tenants’ needs or landlords’ means, and lacked any rational basis for selecting which properties were controlled. The law was no longer tied to a temporary emergency, offered no review mechanism, and provided no compensation. He concluded it was unfair, arbitrary, and constitutionally invalid.

Question 9

GP case

Answer 9

• Daly v Revenue Commissioners – “The objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:
  1. be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
  2. Impair the right as little as possible, and
  3. Be such that their effects on rights are proportional to the objective.”
  o The case concerned a challenge to s.18 of the Finance Act 1987, as amended. The State deducted tax at the standard rate from payments for professional services and paid it directly to Revenue. Initially, professionals could offset this as a tax credit in the same year, but a 1990 amendment delayed the credit to the following year, aiming to prevent a windfall during a change in self-employed tax assessment.
  o The applicant, a GP reliant on State payments, suffered financially—tax was deducted from gross income without accounting for expenses, forcing him to borrow to meet tax obligations. He claimed this was an unconstitutional infringement on property rights.
  o The court accepted the measure addressed a narrow, temporary issue in tax law, not a broad public interest. Weighing the modest benefit against the severe burden imposed on affected professionals, the judge found the measure disproportionate and thus unconstitutional: “the interference with property rights has been brought about by means which are unfair to individual taxpayers or affect property rights in a manner out of proportion to the objective which the measure is designed to achieve.”
• Gilligan v Criminal Assets Bureau – The Proceeds of Crime Act 1996 allows for the confiscation of property over £10,000 if a court is satisfied it represents the proceeds of crime. In 1996, the High Court granted interim orders under the Act, restraining the plaintiff from dealing with certain property. The plaintiff challenged the Act’s constitutionality, arguing it presumed criminal conduct without charge or conviction, reversed the burden of proof, infringed the presumption of innocence, the right to silence, and property rights.
  o However, the court held that these were civil proceedings and applying a balance of probabilities did not breach constitutional protections. While the Act affected property rights, it did not constitute an unjust attack under Article 40.3.2, as forfeiture required judicial satisfaction that the assets were criminal in origin. The common good justified measures to prevent the use of criminal assets.
  o McGuinness J. applied the Cox v Ireland proportionality test and found the Act was rational, not arbitrary, and proportionate in its aim, with built-in safeguards like compensation under s.16. The Act was therefore constitutional.
• In Blascaod Mór Teo v Commissioners of Public Works (No.3) 1999, the Court struck down legislation that gave preferential treatment to those with ancestral ties to land on the island before 1953. It found the classification based on “pedigree” unjustifiable in a democratic society.
  o The Court affirmed that the Constitution should be “pedigree blind,” just like it should be “colour blind or gender blind,” unless such distinctions serve a legitimate legislative aim — which was not the case here. The plaintiffs were unfairly treated compared to descendants of pre-1953 residents.

Question 10

movable property

Answer 10

• The constitutional guarantee applies to land and to rights arising from land ownership.
• It also applies to moveable property (Attorney General v Southern Industrial Trust (1957) and money - Buckley v Attorney General; Clancy v Ireland [1988], [1989]; Orange v Revenue Commissioners [1995].
• In Launceston Property Finance Ltd v Burke 2017 – the Supreme Court stated obiter that constitutional property rights in respect of real property could not insulate individuals from repaying their mortgage, or from the consequences of non-payment.

Question 11

forfeiture of the property

Answer 11

• Attorney General v Liam Rafferty t/.a Carhill Car Sales – The plaintiff sought an order under s.127 of the Finance Act 2001 to forfeit six vehicles due to non-payment of vehicle registration tax (VRT). The Revenue Commissioners had determined the vehicles were unregistered, an offence under s.139(3)(a) of the Finance Act 1992, and seized them under s.140 of the 2001 Act and s.139(5) of the 1992 Act.
  o MacMenamin J. held that a conviction was not required before condemnation proceedings could be brought. The language in s.126(2) of the 2001 Act referred to potential criminal proceedings but did not require them as a prerequisite to forfeiture. This interpretation was supported by Attorney General v Southern Industrial Trust Ltd (1957).
• Michael Murphy & Haz.Com Fuels Limited v Revenue Comissioners – The applicants sought an order of certiorari to quash the decision to forfeit and seize their property, arguing that the respondents acted ultra vires and that the seizure lacked probable cause.
  o The Court held that the application would be refused, noting that the seizure and retention of the property were carried out according to law. It found that the applicants were given fair procedures and that the seizure was part of a lawful investigation.
  o Additionally, the Court highlighted that certain properties are subject to forfeiture under a statutory process deemed constitutionally valid, though constitutionality was not challenged in this case.

Question 12

right to property and housing

Answer 12

• Simply put, no, there is no explicit right to housing. While the government requested the Housing Commission to consider a referendum on housing, it did not advance.
• However, the importance of a dwelling house is implicitly recognized in the Constitution. Article 40.5 protects the inviolability of the home as a place of rest and refuge. These principles have been invoked in challenges to local authority powers to obtain possession without proper due process.

Question 13

constitutional review

Answer 13

• The Constitutional Review Group Report (1996) recommended discontinuing the use of two separate constitutional provisions for property rights. It proposed rewording Article 43.1.1 to: “Every natural person shall have the right to the peaceable possession of his or her own property.”
  o The report also suggested adding a new clause to qualify this broad right, stating that property rights may be subject to legal restrictions if they are required in the public interest and align with the principles of social justice, recognizing the implicit duties and responsibilities associated with property.

Question 14

Oireachtas Committee on the Constitution: Property Rights (2004)

Answer 14

• Refer to Constitution Review Group: The committee acknowledged that the formulation of constitutional provisions on property rights is wordy and invites subjective judicial assessment, which makes it unsatisfactory. However, they noted that many uncertainties have been clarified by case law. The committee disagreed with the criticism that these provisions unduly protect property rights or create significant difficulties for the Oireachtas in regulating or controlling property rights for the public interest.
• Although a constitutional change may not be strictly necessary, the committee believes that the changes proposed by the Constitution Review Group could be desirable. The suggested new wording would have the benefit of consolidating property rights into a single, self-contained provision, and it might more clearly express the balance between the rights of property owners and the community’s interests.