Property Rights Essay

Question 1

What two constitutional provisions protect property rights in Ireland?

Answer 1

Article 40.3.2 and Article 43 of the Constitution.

Question 2

What does Article 43.1 state about property rights?

Answer 2

It recognizes private ownership as a natural right, antecedent to positive law.

Question 3

What does Article 43.2 allow the State to do?

Answer 3

Delimit the exercise of property rights to reconcile them with social justice and the common good.

Question 4

What test do Irish courts use to assess property right restrictions?

Answer 4

The proportionality test.

Question 5

Name the case where the court upheld land transfer conditions for affordable housing.

Answer 5

Re Article 26 and the Planning and Development Bill 2000.

Question 6

What did the court decide in Re Article 26 and the Health (Amendment) (No 2) Bill 2004?

Answer 6

That retroactive removal of rights without compensation was an unjust attack on property.

Question 7

What key principle was emphasized in Rafferty v Minister for Agriculture regarding compensation?

Answer 7

Compensation must cover total loss, including consequential loss, unless justifiably limited.

Question 8

What did Blake v Attorney General clarify about Articles 40.3.2 and 43?

Answer 8

Article 43 protects property as an institution; Article 40.3.2 protects individual property interests.

Question 9

What is considered when determining if a restriction is an unjust attack?

Answer 9

Justification under social justice and the common good, compensation, and fair procedures.

Question 10

What did Gilligan v Criminal Assets Bureau say about property from crime?

Answer 10

Property rights don’t extend to assets acquired illegally; seizure was proportionate to the common good.

Question 11

What case established the right to procedural fairness even before full rights vest?

Answer 11

Dellway Investments v NAMA.

Question 12

Does a fall in the value of a licence due to deregulation amount to an unjust attack?

Answer 12

No – as per Muldoon v Minister for the Environment, value loss doesn’t trigger constitutional protection.

Question 13

What does Kelly say about Articles 40.3 and 43?

Answer 13

They ‘mutually inform’ each other—restrictions must meet both social justice and common good standards.

Question 14

When is lack of compensation more likely to be acceptable?

Answer 14

In planning laws or non-absolute rights, as long as the restriction is proportionate and justified.

Question 15

What does the proportionality test require?

Answer 15

1. Legitimate aim
2. Suitability
3. Necessity
4. Minimal impairment
5. Fair balance between public good and private burden.