Michelle McArdle: Referendum on a right to housing – what could it mean for you?
Michelle McArdle of BHSM LLP considers what the proposed housing referendum could mean for Ireland.
It is anticipated that the Commission for Housing will shortly recommend holding a constitutional referendum to incorporate a constitutional right to housing. This is timely, as issues in relation to housing, whether for purchasers, renters, asylum seekers or those who are homeless, continue to dominate our news cycles.
The wording of any such right would need to be carefully considered to ensure it does not have any unintended consequences and to take account of its interaction with other constitutional rights, crucially the right to property.
Article 43 of the Irish Constitution enshrines the right to private property, as follows:
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.
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.
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.
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.
The right to hold private property is far from an absolute right and may be restricted by the principles of social justice, and for the common good. This can be seen in practice in the ability to order the compulsorily purchase of properties, or more recently with the introduction of rent caps and the ban on evictions during the Covid-19 Pandemic. These types of parameters may need to be considered in the drafting of the new right to housing.
If the referendum passes, depending on the exact wording of the proposed change, it may give rise to extensive case law testing the boundaries of this new right, which could include questions such as:
- At what level does rent become unaffordable?
- If a tenant can no longer pay is their landlord still entitled to ask them to leave?
- What is the position in respect of squatters?
- Does the right extend to purely the accommodation, or to be effective must it be located where the recipient wishes to be?
- Will this require the introduction of purchase price caps, to prevent the purchase of properties in areas being outside of the reach of those on the standard industrial wage?
The new proposed right may refer to a right to “affordable” housing which could present a challenge for those preparing the wording as what this could mean can vary from county to county and person to person.
It is expected that the wording of the new right will be presented to government in the coming weeks for review and approval and it will be important for all interested parties — be they home-owners, renters or those currently without somewhere to call home — to understand how it could affect them and their lives.
- Michelle McArdle is a senior associate in the real estate department of BHSM LLP.
This article is for general information purposes. Legal advice must be obtained for individual circumstances. Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.