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Which parts of legislation are unconstitutional and have any of those parts been brou
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19-09-2017 5:49pm#1If the rtb did come down on a landlord based on unconstitutional legislation would it end up going to court and bust the whole thing wide open.
Would that stop the rtb from persuing any cases in case it might lead to the whole house of cards falling down on them?
If any landlord here was taken to task on any unconstitutional part of the legislatuon would you fight it?0
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If the rtb did come down on a landlord based on unconstitutional legislation would it end up going to court and bust the whole thing wide open.
Would that stop the rtb from persuing any cases in case it might lead to the whole house of cards falling down on them?
If any landlord here was taken to task on any unconstitutional part of the legislatuon would you fight it?
All legislation has a presumption of constitutionality. That means it is constitutional until a court of relevant standing decides otherwise (high court, court of appeal or supreme court)
In the type of scenario you mention a landlord would have to appeal or judicially review a decision of the PRTB challenging their legal authority etc. Such cases don't just automatically end up in court. The mechanism and rules for taking such cases also need to be considered (some may be housed in relevant statute, some in the Rules of the Superior Courts and some in case law)
If a court determines a a piece of statute as unconstitutional then it can have significant effects but it depends on the nuances of a case and the law in question and the elements of same that are unconstitutional.
PRTB would be wise not to bring further cases under the specific piece of law in question (note that a particular part of the law or exercise of a power found to be unconstitutional does not mean that the entirety of the law or the powers of the authority are unconstitutional). It would also be expected that a major judgement of the court with wide ranging impacts would be appealed right up to the supreme court.
Bringing a case to the High Court is a costly business so I suspect many individual people won't have the means to bring such a case and/or are unwilling the assume the risk in pursuing such cases.0 -
All legislation has a presumption of constitutionality. That means it is constitutional until a court of relevant standing decides otherwise (high court, court of appeal or supreme court)
In the type of scenario you mention a landlord would have to appeal or judicially review a decision of the PRTB challenging their legal authority etc. Such cases don't just automatically end up in court. The mechanism and rules for taking such cases also need to be considered (some may be housed in relevant statute, some in the Rules of the Superior Courts and some in case law)
If a court determines a a piece of statute as unconstitutional then it can have significant effects but it depends on the nuances of a case and the law in question and the elements of same that are unconstitutional.
PRTB would be wise not to bring further cases under the specific piece of law in question (note that a particular part of the law or exercise of a power found to be unconstitutional does not mean that the entirety of the law or the powers of the authority are unconstitutional). It would also be expected that a major judgement of the court with wide ranging impacts would be appealed right up to the supreme court.
Bringing a case to the High Court is a costly business so I suspect many individual people won't have the means to bring such a case and/or are unwilling the assume the risk in pursuing such cases.
Thanks. Very informative.
I was wondering if the rtb were afraid to put the foot down on landlords in case they get fought and lose.
Our gov seem to be stepping all over landlords and it looks like there will be let up.
I was trying to think of ways that would make it possible to stay in the business.0 -
The only way is to contact as many landlords as you know (including in this forum) pool the challenge money through a "consortium" of at least 50-60 landlords willing to put at least 1k each. I disagree with a direct constitutional challenge at the High Court since facts are much better than theory and will shine in the media. Second step is to find a senior counsel with experience in tenancy law (very few) then find a test case at the RTB, let the case fail at the Tribunal level and challenge the RTB at the High Court the case. The facts are important because the judges will see how arbitrary the current law application is. If winning at the High Court, expect appeal to Supreme Court and new round of funding (hopefully it should be easy with the media attention ).Thanks. Very informative.
I was wondering if the rtb were afraid to put the foot down on landlords in case they get fought and lose.
Our gov seem to be stepping all over landlords and it looks like there will be let up.
I was trying to think of ways that would make it possible to stay in the business.0 -
GGTrek wrote:The only way is to contact as many landlords as you know (including in this forum) pool the challenge money through a "consortium" of at least 50-60 landlords willing to put at least 1k each. I disagree with a direct constitutional challenge at the High Court since facts are much better than theory and will shine in the media. Second step is to find a senior counsel with experience in tenancy law (very few) then find a test case at the RTB, let the case fail at the Tribunal level and challenge the RTB at the High Court the case. The facts are important because the judges will see how arbitrary the current law application is. If winning at the High Court, expect appeal to Supreme Court and new round of funding (hopefully it should be easy with the media attention ).
I think 'consortium funding' of a test case based on the circumstances of one landlord's dispute would fall foul of the laws against champerty and maintenance (basically, third party litigation funding).0 -
Grolschevik wrote: »I think 'consortium funding' of a test case based on the circumstances of one landlord's dispute would fall foul of the laws against champerty and maintenance (basically, third party litigation funding).
It might but it might not. Interest in a case could be proven vis impact on other landlords.0 -
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Uriel. wrote:It might but it might not. Interest in a case could be proven vis impact on other landlords.
Also, I believe charitable organisations are exempt. But a lot of hassle to go to...0 -
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Call me cynical but that doesn't particularly convince me that there's some RTB conspiracy to avoid the constitution.
Had you said there's a few elected representatives chancing their arm to score cheap political capital at the expense of landlords, I'd probably agree.0 -
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I disagree since if only landlords help with the funding, legitimate interest would be easy to prove. Please consider the opinion of better qualified law firm:Grolschevik wrote: »I think 'consortium funding' of a test case based on the circumstances of one landlord's dispute would fall foul of the laws against champerty and maintenance (basically, third party litigation funding).
http://www.arthurcox.com/wp-content/uploads/2016/04/Is-the-door-now-closed-to-professional-third-party-litigation-funding-in-Ireland.pdf
"FUNDING BY A PERSON CONNECTED TO A PARTY TO THE PROCEEDINGS
Third party funding is, however, allowed where the funder has a lawful interest or some other legitimate concern in the litigation, e.g. as a shareholder or creditor of a company that is a party to the litigation.
Those who fund litigation in this way risk being made personally liable for the costs of the litigation if the party they are funding is ultimately unsuccessful. "
So first thing to verify with the counsel would be the legal funding issue and the probability/risk of success/failure in view of Blake vs The Attorney General [1982] https://www.boards.ie/b/thread/2056474841. No doubt, the legal funding would be the main issue before starting such a case, since a small landlord on his own would not be able to fund the case.0 -
What's this specific piece of potentially unconstitutional legislation?0
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I don't know what they are at at all. Actually I think I do.
I think first they tried to save themselves money by cutting rent allowance.
That didn't work, because landlords didn't even need rent allowance recipients as the gov thought, and just didn't take people who were dependant on the rent allowance that was to low.
Then they decided to make it discrimination for a landlord not to take rent allowance recipients. That didn't work because Findley the thought police can't get you yet.
So then they started controlling rents so that would save the gov money. And then to follow up they make it so you can't get rid of a tenant so our put the rent up after a tenant leaves.
Now they are trying to close of landlords only way she out of the rigged system, like Airbnb or even selling the property to get out.
It's all about saving the gov money and not having to house people, at the expense of the property owners. It's a take over of rental stick by the gov.0 -
TheChizler wrote:What's this specific piece of potentially unconstitutional legislation?
I'd have thought the landlord that got fined for refusing Hap tenants would have a good case.
Not on the basis that he refused to accept it but because he works have been unilaterally forced to accept the Hap conditions and requirements that wouldn't apply for private tenancies.
My guess is that it wasn't challenged because of the costs involved.0 -
jimmycrackcorm wrote: »I'd have thought the landlord that got fined for refusing Hap tenants would have a good case.
Not on the basis that he refused to accept it but because he works have been unilaterally forced to accept the Hap conditions and requirements that wouldn't apply for private tenancies.
My guess is that it wasn't challenged because of the costs involved.
It's a big leap to say that's unconstitutional...which article of the constitution do you think it breaks?0 -
TheChizler wrote: »What's this specific piece of potentially unconstitutional legislation?
The section that's usually thrown around as potentially vulnerable is the RPZ amendment based on Blake and Article 26 reference in the Housing (Private Rented Dwellings) Bill, 1981, where rent controls were found to be unconstitutional.
The problem is that these two decisions represent the high water mark of the protection of property rights in Article 40. Not just in relation to rent control, but more generally.
Developments since then have emphasized proportionality as a necessary component of deciding whether a particular law amounts to an unjust attack on private property rights, having regard to the principles of social justice and the exigencies of the common good. Article 40.3.2 states thatThe 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.
See for example Re Article 26 and Part V of the Planning and Development Bill 1999. In that case Keane CJ adopted a test to determine if a particular legislative provision should be regarded as proportionate:
Its objective must be one of sufficient importance to warrant overriding a constitutionally protected right.
Further, the means chosen must- be rationally connected to the objective and not be arbitrary, unfair or based on irrational consideration,
- impair the right as little as possible, and
- be such that its effects on the constitutionally protected right are proportionate to that objective.
The Constitution Review Group, the Commission on the Private Rented Residential Sector and the Party Oireachtas Committee on the Constitution have all stated that given the development of the doctrine of proportionality rent controls which were not disproportionate, unfair, or arbitrary, in the way that they were in Blake, would be constitutional.0 -
The section that's usually thrown around as potentially vulnerable is the RPZ amendment based on Blake and Article 26 reference in the Housing (Private Rented Dwellings) Bill, 1981, where rent controls were found to be unconstitutional.
The problem is that these two decisions represent the high water mark of the protection of property rights in Article 40. Not just in relation to rent control, but more generally.
Developments since then have emphasized proportionality as a necessary component of deciding whether a particular law amounts to an unjust attack on private property rights, having regard to the principles of social justice and the exigencies of the common good. Article 40.3.2 states that
See for example Re Article 26 and Part V of the Planning and Development Bill 1999. In that case Keane CJ adopted a test to determine if a particular legislative provision should be regarded as proportionate:
Its objective must be one of sufficient importance to warrant overriding a constitutionally protected right.
Further, the means chosen must- be rationally connected to the objective and not be arbitrary, unfair or based on irrational consideration,
- impair the right as little as possible, and
- be such that its effects on the constitutionally protected right are proportionate to that objective.
The Constitution Review Group, the Commission on the Private Rented Residential Sector and the Party Oireachtas Committee on the Constitution have all stated that given the development of the doctrine of proportionality rent controls which were not disproportionate, unfair, or arbitrary, in the way that they were in Blake, would be constitutional.
The aspect of RPZ that I think would fall in the event of a challenge would be the prohibition on a landlord raising a lower rent to the market rate where a tenancy expires and/or a tenant leaves voluntarily. This represents an excessive interference with property rights as the landlord is estopped from earning the market rate that similar properties are generating yet subject wholly to the same regulations and restrictions under the 2004 Act.
It's more likely that RPZ is a direct breach of EU competition laws. I'm not the expert on this but EU legislation supersedes the Constitution and EU fundamental charter rights now supersede Bunreacht rights. Anyone have any thoughts on this?0 -
Our gov seem to be stepping all over landlords and it looks like there will be let up.
It's hard to understand how such a large group (175,000 registered landlords according to rtb) are not able to have their views considered by the government.
There has to be a system that is fair to everyone - all the recent changes seems to be making more problems instead of helping the situation.0 -
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mrslancaster wrote: »It's hard to understand how such a large group (175,000 registered landlords according to rtb) are not able to have their views considered by the government.
There has to be a system that is fair to everyone - all the recent changes seems to be making more problems instead of helping the situation.
Simples- the government went to the media and painted The Irish Property Owners Association (IPOA) into a corner suggesting 'it was operating in an anti-competitive manner'. The Competition Authority was put into action- and conducted an investigation into a press release from the Irish Property Owners Association (Jan of this year) after they rather foolishly published the equivalent of an idiots guide to applying new charges on tenants to get around RPZ 4% rate rules. They've pretty much vanished from the media (though they continue to exist as an organisation) since.
Heres a link to a Journal article on the sorry saga.........0 -
If the rtb did come down on a landlord based on unconstitutional legislation would it end up going to court and bust the whole thing wide open.
Would that stop the rtb from persuing any cases in case it might lead to the whole house of cards falling down on them?It's not the RTBs house of cards, why would they have any interest in protecting it?
Mmm. I'm unconvinced. Having a legislative provision that you feel unable (for whatever reason) to enforce is not a terribly effective way of empire-building.Of course they would
Such agencies must be relevant and not one doesn't want to empire build. They'd be very interested
These agencies exist to implement the laws in their area. If they feel a particular provision is unimplementable because unconstitutional, any empire-building instincts that they might have would lead them to want to see that provision repealed or struck down, and replaced with something they could effectively implement. The last thing they'd want to do is forget about enforcing the provision, quietly bury it and pretend it never existed.
Can you point to a particular provision of the legislation that you think the RTB is systematically not enforcing? Because, you know, if you can't, I think the OP's question is definitively answered.0 -
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So there are a few main cases:Mrs Shuttleworth wrote: »The aspect of RPZ that I think would fall in the event of a challenge would be the prohibition on a landlord raising a lower rent to the market rate where a tenancy expires and/or a tenant leaves voluntarily. This represents an excessive interference with property rights as the landlord is estopped from earning the market rate that similar properties are generating yet subject wholly to the same regulations and restrictions under the 2004 Act.
* Existing rental properties in the RPZs. Historical market rent, but subject to rent controls.
* Improved existing rental properties in the RPZs. Market rent, but subject to rent controls.
* New rental properties in the RPZs. Market rent, but subject to rent controls.
* Properties outside the RPZs. Not subject to rent controls.
So, the government is allowing landlords to increase rents that are based on existing contracts. New rental properties will be brought to the market by the prospect of higher rents. Provided this doesn't create a vast, long-term distortion, I don't see how it is unconstitutional. They could have simply said that the initial rent is the rent for the entire duration of the tenancy and it could still have been constitutional.
How are these price controls magically different to the groceries prices orders or fuel price orders that have existed in the past?
In what way?It's more likely that RPZ is a direct breach of EU competition laws.0 -
My biggest issue is that the apartment a few doors down from me is allowed to charge 45% more than I am allowed to charge for rent. Every other property I ever see for rent in the area is charging 40 to 50% more than I am allowed to for the exam same property.
Mine has even been renovated to a very high standard a couple of years ago too, which the others I've seen advertised haven't.
It's the old story of two TV shops. One has a 50%off sale. That night the gov pass law that says you can't ever increase the price you are selling your TV's at more than 4% per year.
Now one shop is forever doomed to make a loss, while all their costs are the same.0 -
The_Conductor wrote: »Simples- the government went to the media and painted The Irish Property Owners Association (IPOA) into a corner suggesting 'it was operating in an anti-competitive manner'. The Competition Authority was put into action- and conducted an investigation into a press release from the Irish Property Owners Association (Jan of this year) after they rather foolishly published the equivalent of an idiots guide to applying new charges on tenants to get around RPZ 4% rate rules. They've pretty much vanished from the media (though they continue to exist as an organisation) since.
Heres a link to a Journal article on the sorry saga.........
I can't see anything anti-competitive in what in the IPOA said there.
In fact the competition commission said to the IPOA it must:
"Inform members that it has retracted the press release and remind them that the setting of rents and charges in the private rental sector are matters for individual landlords and their tenants”!!!!
Rent controls themselves are a wholesale violation and distortion of market forces.0 -
Their costs aren't necessarily the same. They may have bought their apartments at a different time to you, paid a different price, be servicing a different mortgage.My biggest issue is that the apartment a few doors down from me is allowed to charge 45% more than I am allowed to charge for rent. Every other property I ever see for rent in the area is charging 40 to 50% more than I am allowed to for the exam same property.
Mine has even been renovated to a very high standard a couple of years ago too, which the others I've seen advertised haven't.
It's the old story of two TV shops. One has a 50%off sale. That night the gov pass law that says you can't ever increase the price you are selling your TV's at more than 4% per year.
Now one shop is forever doomed to make a loss, while all their costs are the same.
When you let your apartment, presumably you let it for a rent you were willing to accept. Is there a reason why that is so far below the rents that all the similar properties are let for? Were you in fact running a "50% off sale" and, if so, why?0 -
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My biggest issue is that the apartment a few doors down from me is allowed to charge 45% more than I am allowed to charge for rent. Every other property I ever see for rent in the area is charging 40 to 50% more than I am allowed to for the exam same property.
Mine has even been renovated to a very high standard a couple of years ago too, which the others I've seen advertised haven't.
It's the old story of two TV shops. One has a 50%off sale. That night the gov pass law that says you can't ever increase the price you are selling your TV's at more than 4% per year.
Now one shop is forever doomed to make a loss, while all their costs are the same.
Honestly- the Minister and the various lobby groups- don't give a crap.
Landlords are seen a historic context- and the way things are going- property ownership- is viewed as a societal ill- while everyone is entitled to a property- a-la under Communism.
The regulatory regime is firmly against landlords specifically, and property ownership, in general. The political will is not there to allow some sort of equalisation regime- and anyone who wasn't charging full market rent- is held up to ridicule and called stupid on social media- despite the fact that it was more a simple reflection of the good working relationship they had with a pre-existing tenant. Why a future tenant should be able to leverage the good will a landlord had with a historic tenant- is a bit ridiculous- but thats the situation that the powers that be have deemed a good given right for tenants.
The latest whizz- is to try and make a property renovation, as defined under the Act- pretty much impossible. The Minister, yesterday evening- came out with a right clanger of an example of what would be deemed allowed (a renovation that adds one or more bedrooms to a property............... riiiigghhhhtttt.........)
The RPZ legislation has a built-in expiration date (the 6th of December 2019). What a lot of landlords are doing- is holding their breaths for this date- and making sure all their ducks are lined up in a row- to extinguish the rent level anamolies at midnight on the 5th of December 2019- or technically, a minute before the RPZ legislation might be renewed- whether they get away with it, or not, remains to be seen.
There is always going to be the law of unintended consequences- and the bizarre example you set out is simply one of them.0 -
The_Conductor wrote: »Honestly- the Minister and the various lobby groups- don't give a crap.
Landlords are seen a historic context- and the way things are going- property ownership- is viewed as a societal ill- while everyone is entitled to a property- a-la under Communism.
The regulatory regime is firmly against landlords specifically, and property ownership, in general. The political will is not there to allow some sort of equalisation regime- and anyone who wasn't charging full market rent- is held up to ridicule and called stupid on social media- despite the fact that it was more a simple reflection of the good working relationship they had with a pre-existing tenant. Why a future tenant should be able to leverage the good will a landlord had with a historic tenant- is a bit ridiculous- but thats the situation that the powers that be have deemed a good given right for tenants.
The latest whizz- is to try and make a property renovation, as defined under the Act- pretty much impossible. The Minister, yesterday evening- came out with a right clanger of an example of what would be deemed allowed (a renovation that adds one or more bedrooms to a property............... riiiigghhhhtttt.........)
The RPZ legislation has a built-in expiration date (the 6th of December 2019). What a lot of landlords are doing- is holding their breaths for this date- and making sure all their ducks are lined up in a row- to extinguish the rent level anamolies at midnight on the 5th of December 2011- or technically, a minute before the RPZ legislation might be renewed- whether they get away with it, or not, remains to be seen.
There is always going to be the law of unintended consequences- and the bizarre example you set out is simply one of them.
Sorry mod you said 5th December 2011 is that a typo - what is the correct date thanks.
The Minister's guidelines on renovations spoken last night discriminate against apartment owners. Almost all of the proposed acceptable renovations only apply to houses.
I laughed when he said door replacements. Door showrooms can expect an unprecedented run of punters for their products this weekend.0 -
Doesn't your second sentence rather undermine your first?Mrs Shuttleworth wrote: »I can't see anything anti-competitive in what in the IPOA said there.
In fact the competition commission said to the IPOA it must:
"Inform members that it has retracted the press release and remind them that the setting of rents and charges in the private rental sector are matters for individual landlords and their tenants”!!!!0 -
Peregrinus wrote: »Their costs aren't necessarily the same. They may have bought their apartments at a different time to you, paid a different price, be servicing a different mortgage.
When you let your apartment, presumably you let it for a rent you were willing to accept. Is there a reason why that is so far below the rents that all the similar properties are let for? Were you in fact running a "50% off sale" and, if so, why?
I think you understand what mean regarding costs.
To answer your question on why the rent was so low. It started out where I thought I was doing a good thingfor someone less fortunate than myself.
I let it several years ago to someone who I thought needed it badly at the time and didn't have huge funds, so I was willing to be nice to them. I had just done it up, but figured I could recover the costs of doing it from lettings in future. I usually don't up the rent for several years if someone stays anyway.
Since then the particular tenant has become a nightmare. Legislation came in to limit how often I could raise the rent. Then before that particular piece of legislation expired, more legislation came in to tie me up even more.
And now, there is even more legislation being mooted.
So at this stage I just would like to get out to be perfectly honest.0 -
The part of the legislation I believe is most likely to fall fowl of Article 40, is the way it effectively makes Part 4 tenancies indefinite. Its really an academic argument though, as the only landlords with the pockets to bring a challenge, are the REITs who dont seem interested.
I know this legislation is unfair, but fairness and legality dont normally mean the same thing.
Ultimately, landlords leaving the market is what will challenge this legislation. We're about 9 months into a 3 year "temporary measure", and the market is creaking, with pretty much nothing happening to address the supply side. Whats it going to be like this time next year?0 -
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I think you understand what mean regarding costs.
To answer your question on why the rent was so low. It started out where I thought I was doing a good thingfor someone less fortunate than myself.
I let it several years ago to someone who I thought needed it badly at the time and didn't have huge funds, so I was willing to be nice to them. I had just done it up, but figured I could recover the costs of doing it from lettings in future. I usually don't up the rent for several years if someone stays anyway.
Since then the particular tenant has become a nightmare. Legislation came in to limit how often I could raise the rent. Then before that particular piece of legislation expired, more legislation came in to tie me up even more.
And now, there is even more legislation being mooted.
So at this stage I just would like to get out to be perfectly honest.
Anyone who asks why a preexisting rent contract wasn't operating at full market rent as of December 2016 either doesn't know the business or is trolling.
There are thousands of landlords in this position and for the reasons you describe. Once bitten twice shy and amiable landlords are now going to become mercenary and cut throat.
Where a tenant gives valid notice and leaves on good terms voluntarily during a tenancy it is unconscionable that the rent for a new tenancy cannot be allowed to rise to the market rent operating under RPZ.
I thought Rosalind Carroll of the RTB crossed a line with her comments last night that if a new tenant (not yet in contract) is offered rent that's higher than the RPZ amount then they should file a dispute with the RTB. Such an individual has no locus standi to bring a case to RTB.0
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