A time-limited legal ban on evictions linked to the cost-of-living crisis would have a strong chance of defeating any constitutional challenge to such a ban according to a property rights expert.
The Government is considering a winter ban on evictions that could be in place until the end of March, under plans being examined to deal with the cost-of-living crisis.
Rachael Walsh, associate professor at the School of Law in Trinity College Dublin, is a co-author of the latest edition of Kelly: The Irish Constitution, the seminal work on Irish constitutional law, and author of Property Rights and Social Justice.
“Lessons will have been learned from the eviction moratoriums during the Covid-19 pandemic and are likely to inform any new legal ban on evictions,” Walsh believes.
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The rationale of the moratorium on evictions in the early stages of the pandemic was public health, particularly the need to stop people moving around, while the rationale for banning evictions in the later stages was economic hardship, she explains.
The earlier moratoriums applied generally but the later ones were “more tailored” arising from concerns by the Attorney General that generalised restrictions could be more open to challenge when society was opening up more.
The legislation concerning the later moratoriums involved more balancing between the rights of landlords and tenants and tenants had to be more proactive in demonstrating they were entitled to an extension of the moratorium.
“The justification for the evictions ban being considered now is different, it is linked to the cost of living crisis,” Walsh says.
Article 43.2 of the Constitution recognises that property rights ought to be regulated by the principles of social justice and may, “as occasion requires”, be delimited by law “with a view to reconciling their exercise with the exigencies of the common good”.
“A case could confidently be made now that such an imperative exists because of the cost of living crisis and the housing crisis,” Walsh believes.
In the event of a legal challenge to an eviction ban, the courts would analyse whether the interference with property rights was necessary and proportionate.
“I would be confident a challenge would not succeed,” Walsh says. The courts, she points out, usually defer to the judgment of the legislature concerning what is necessary to secure the common good, as evidenced by the rejection of challenges to emergency legislation cutting public service pay during the financial crisis.
“If the aim is for a short, sharp ban on evictions, the time limit is key,” she says.
The situation becomes “more complex” where a ban is lengthy and might require building in protections for property rights, such as permitting a landlord to recover their property for personal use.
An evictions ban needs to be cognisant of avoiding a rent arrears crisis later, she adds. “The longer the ban, the bigger the risk of people falling off an arrears cliff so it would be prudent to have active arrears management built in to lessen the vulnerability of tenants.”
Barrister Finn Keyes says a time-limited ban on evictions would give the government “more room to manoeuvre” as an open-ended ban would raise more constitutional issues.
Keyes, along with Hilary Hogan, a Ph.D researcher at the European University Institute, analysed property rights case law in a 2020 research paper entitled The Housing Crisis and the Constitution.
It noted “a myriad of restrictions” on property owners were approved by the courts on the basis of the principle the Oireachtas can introduce proportionate restrictions on property rights to advance the common good.
In relation to the proposed evictions ban, Keyes says: “An evictions moratorium was deemed constitutionally feasible during the pandemic, it seems that was the Attorney General’s advice.”
There is “no clear authority” on the constitutionality of an eviction ban and “a degree of uncertainty”, he says. While a Supreme Court decision in 1982 found a rent freeze was unconstitutional, that related to a law dating back several decades.
The courts “have been traditionally deferential to measures taken by the legislature in times of crisis.”