Could the government be sued by private citizens for loses incurred as a result of re

jamesthepeach

So let's say a private citizen has had to swallow 50% loss on the market rent I their property after the government forces them to do this.

Immediately on finding out they were trapped by the new rules the investor went about getting out of the business, but this takes time and losses were sustained during this time.

So the private citizen gets a solicitor and starts a gofundme campaign to raise money to take on the government on behalf of all property investors to

A). Challenge that what the government have done.is in general unconstitutional.

. Sue the govt for the losses as a result of the unconstitutional behaviour of the govt.

Maybe some solicitor who wants to make a name for themselves could help here, it even decalre that they are going.to do it if they reach a funding target. Since the ipoa are a useless shower.

Just dreaming about this this morning. Is is even feasible.

Peregrinus

Sorry, but how does the government force you to swallow a 50% loss on the market rent of your property? The government doesn't force you to rent your property at all; you'll rent it, or not, depending on what you think will secure your own best advantage.

If you buy a property hoping for a return which is dependent on laws, etc, not changing, you're taking on a political risk, because of course laws can always change. If the works out badly for you, well, that 's what risks do. That's why we call them "risks".

jamesthepeach

Peregrinus wrote: »

Sorry, but how does the government force you to swallow a 50% loss on the market rent of your property? The government doesn't force you to rent your property at all; you'll rent it, or not, depending on what you think will secure your own best advantage.

If you buy a property hoping for a return which is dependent on laws, etc, not changing, you're taking on a political risk, because of course laws can always change. If the works out badly for you, well, that 's what risks do. That's why we call them "risks".

The government decided to set my rent BEFORE giving me the chance to exit or set the rent properly. In fact it goes back further. They locked me in on the sneak already and then while I was locked in they hit me again when I couldn't do something about it.

But, it's just a question. Just curious as to others views and to see if it would be worth while to try and encourage some law professional to take at least a challenge to the constitionality of it on if I helped them with the fund raising. Just one of the many little project ideas I have in mind for myself. Might be at least fun.

I offered to help the ipoa but they wouldn't even answer emails.

The J Stands for Jay

How did the government set your rent?

Paulw

jamesthepeach wrote: »

ust curious as to others views and to see if it would be worth while to try and encourage some law professional to take at least a challenge to the constitionality of it

What do you deem to be unconstitutional? To challenge, on constitutional grounds, you will need a very good gofundme project.

There is no guarantee on property, no guarantee on investment and no guarantee on rent. I can't see how you think you would have a legal case to start with, never mind one you might win.

Really Interested

jamesthepeach wrote: »

The government decided to set my rent BEFORE giving me the chance to exit or set the rent properly. In fact it goes back further. They locked me in on the sneak already and then while I was locked in they hit me again when I couldn't do something about it.

But, it's just a question. Just curious as to others views and to see if it would be worth while.to try and encourage some law professional to take at least a challenge to it on if I helped them with the fund raising.

The State has set in certain areas a cap on rent, but there is much wrong with the rest of your claim. If a person invested recently in property then the market value and rent would have been reflected in the price. Say a person had bought a property 10 years ago at height of market then the rent achieved over the following 10 years may have been low, say the landlord got a tenant 8 years ago and was getting a rent each month of 1000. There was nothing stoping the land lord increasing the rent until recently. So now the land lord has a tennant and can only increase rent by 4% which according to the legislation is per year so such a landlord can increase the rent according to the formula. In the case of 8 years that would amount to some 20+%.

Any challange to the legislation would need a good basis in law, would need evidence that the State interfered unjustly with a persons property rights.

Any good solicitor and Barristers good enough to take on such a case already have made a name for themselves. The cost in time, experts and outlays for a solicitor to Cary such a case would be in the tens of thousands. Any claimant who owns property is taking a big risk on costs being awarded against them and thereby ending up with no property.

jamesthepeach

And I think you could raise that much and more for someone to take on the case.

As I said, I have a background in fund raising and will have plenty of time on my hands and would find it fun to help raise the funds for it.

I can't find the post but someone did post here about all the constitutional issues with this legislation. If they read this can they post again?

Sleeper12

It's an investment. You win some & you lose some. Some taxi drivers paid £70/£80k for a taxi plate. The government deregulated it & the same plates were worth £5k six months later.

GGTrek

This is not the way it should be done. The "simplest" way for a landlord would be to set the market rent according to RTA 2015 and ignore the RTA 2016. Tenant (maybe) will challenge at RTB. You raise the constitutional issues at the adjudication and they will in all likelihood be ignored, then you will loose the adjudication and appeal, then you will do the same in front of the RTB tribunal and maybe they will start to consider your constitutional grounds but more likely not and you will loose the appeal. Note that until now the govvie does not care. Only at this point the thing gets serious: you spend a few tens of thousands of euros on solicitor and barrister and you challenge the appeal using a judicial review at the High Court on the same constitutional grounds. Now the govvie becomes interested and will put all its possible resources against you, including a media campaign of the dysfunctional pro-tenant NGOs.
You have a good chance of winning at this point, suppose you win: the RTB/govvie will have to pay all your massive legal expenses (opposite case you will have to pay!) in addition the RPZ legislation would be scrapped (benefiting all landlords even the ones who took no risks). In such case it is almost sure to go to the Supreme Court (given the costitutional grounds) and even if govvie looses the govvie will try to pass a slightly modified law to bypass the judicial review findings and a new legal challenge will have to be mounted (this is what happened in 1981-1983 to get rid of rent controls).
The main problem that I see ( unless someone can point me otherwise ) is that Irish law does not allow crowdfunding for legal cases. This is a massive drawback compared to UK or US law.

GGTrek

Start from here:
Link

DubCount

I have to wonder why REITs and large landlords who are loosing out on significant amounts of money due to the RPZ legislation are not taking a case. Maybe they consider that avoiding rents reaching silly levels may not be in their best interests for the long run. Maybe their lawyers reckon they wont win as the fact that the rent restrictions are "temporary", means it will not be deemed unconstitutional by the courts. Either way, if there has not been a case taken already, its unlikely one will happen now.

The more interesting question is what happens when the RPZ runs out. We are 6 months down with 2.5 years to go. I havent seen any major increases in housing supply. New to market rental rates continue to spiral upwards. If RPZ is renewed after the initial 3 years, a constitutional challenge may be more successful at that point.

jamesthepeach

Now you are putting me.right off
I'm very good at fund raising. It's the law part I'm useless at.

Lumen

jamesthepeach wrote: »

I'm very good at fund raising. It's the law part I'm useless at.

You'll probably need to be very very good at fund raising.

High Court reserves judgment on Angela Kerins case legal costs
http://www.irishtimes.com/news/crime-and-law/courts/high-court/high-court-reserves-judgment-on-angela-kerins-case-legal-costs-1.2983991

"The costs of the case, which ran for ten days with another four days spent on pre-trial matters, are estimated at upwards of €700,000."

jamesthepeach wrote: »

Maybe some solicitor who wants to make a name for themselves could help here, it even decalre that they are going.to do it if they reach a funding target. Since the ipoa are a useless shower.

solicitor who wants to make a name for themselves = someone with no experience.

And you'll need barristers. Plural.

my3cents

I just wonder how you can define loss? Its not like someone has devalued the house which you still have and can sell. The loss is on the investment return which has already been stated is never guaranteed.

jamesthepeach

my3cents wrote: »

I just wonder how you can define loss? Its not like someone has devalued the house which you still have and can sell. The loss is on the investment return which has already been stated is never guaranteed.

I'm pretty sure there would be a value element to it too.

.......

This post has been deleted.

GGTrek

DubCount wrote: »

I have to wonder why REITs and large landlords who are loosing out on significant amounts of money due to the RPZ legislation are not taking a case.  Maybe they consider that avoiding rents reaching silly levels may not be in their best interests for the long run.  Maybe their lawyers reckon they wont win as the fact that the rent restrictions are "temporary", means it will not be deemed unconstitutional by the courts.  Either way, if there has not been a case taken already, its unlikely one will happen now.

The more interesting question is what happens when the RPZ runs out.  We are 6 months down with 2.5 years to go.  I havent seen any major increases in housing supply.  New to market rental rates continue to spiral upwards.  If RPZ is renewed after the initial 3 years, a constitutional challenge may be more successful at that point.

You are correct stating that due to the effective prohibition of crowdfunding only REITs have the money to challenge the law at the moment.

I am guessing that the reason they are not challenging the law is that REITs almost always kept the rent at market rate, their loss of gains are therefore more limited than small landlords that kept rent lower than market, they are still going to increase rent by 12% in the next three years and given the massive tax discounts the Irish govvie is providing them, they do not want to get on bad terms with the Irish govvie by challenging the RPZ legislation.

For non-REIT landlords the situation is very different, if they could crowdfund they would have a very limited downside in challening the RPZ and a big upside if it is scrapped. Tax is already awful for non-REIT landlords and difficult to be increased without affecting other classes of taxpayers.

With respect to the temporary aspect, I disagree on this point, since the perfect test case against RPZ is the following one: landlord increases rent to almost market rate in January/February 2015, then RTA 2015 came in locking the rent for a further year and then RTA 2016 came putting a further 12% cap which is effectively split over 5 full years (2.4% year on year which is just above inflation rate) he can easily show next door neighbour or equivalent flat (this is what they did in 1981-83) that is earning 20-30-40% more than him/her in rent, so showing that his property rights have been damaged by the law without compensation. I believe that 5 years is not going to be considered temporary by any court of law, it is just a tactic used by the Irish govvie to make it look temporary.

I believe that, if no one challenges the current RPZ legislation, it will be renewed in 2019 for a further "temporary" period: rent controls are addictive and only serious action against govvie (like in 81-83) will manage to remove them (i.e. the govvie can blame the judicial branch) or a massive political change (like the Thatcher years in the UK when they got rid of rent controls there). I do not forsee any massive political change in Ireland in the medium 3-5 years term.

jimmycrackcorm

GGTrek wrote:

With respect to the temporary aspect, I disagree on this point, since the perfect test case against RPZ is the following one: landlord increases rent to almost market rate in January/February 2015, then RTA 2015 came in locking the rent for a further year and then RTA 2016 came putting a further 12% cap which is effectively split over 5 full years (2.4% year on year which is just above inflation rate) he can easily show next door neighbour or equivalent flat (this is what they did in 1981-83) that is earning 20-30-40% more than him/her in rent, so showing that his property rights have been damaged by the law without compensation. I believe that 5 years is not going to be considered temporary by any court of law, it is just a tactic used by the Irish govvie to make it look temporary.

How is the next door neighbour getting 40% more rent? What if the next door neighbour has lower rent because they rented under market rates? Also the next door neighbour is subject to the same rent increase rules.

Earl _of _Sandwich

**The value of your investment may go down as well as up.

Welcome to the big leagues OP.

Victor

jamesthepeach wrote: »

Could the government be sued by private citizens for loses incurred as a result of re

So let's say a private citizen has had to swallow 50% loss on the market rent I their property after the government forces them to do this.

Can you look over your post and check for missing words?

So the private citizen gets a solicitor and starts a gofundme campaign to raise money to take on the government on behalf of all property investors

https://en.wikipedia.org/wiki/Champerty_and_maintenance#Ireland

Ireland[edit]
The Maintenance and Embracery Act 1634 passed by the Parliament of Ireland provides that "all statutes heretofore made in England concerning maintenance, champerty and embracery, or any of them now standing and being in their full strength and force, shall be put in due execution in this realme of Ireland".[22] The act is still in force in the Republic of Ireland.[23] In 2015 Persona, which lost to Esat Digifone in a 1997 telecoms bidding process criticised by the Moriarty Tribunal, applied to launch a lawsuit against those involved in the 1997 bidding, to be funded by a UK company, Harbour Litigation Funding, in return for part of any damages awarded.[23][24] In 2016, the High Court ruled that such third-party funding constituted champerty prohibited by the 1634 act; Persona said it would have to drop the case, being unable to afford the €10m expenses.[23][24]

jamesthepeach

Victor wrote: »

Can you look over your post and check for missing words?



https://en.wikipedia.org/wiki/Champerty_and_maintenance#Ireland

Well that's convenient I suppose.

LuckyLloyd

On what grounds is any of this legislation "unconstitutional"?

Lumen

LuckyLloyd wrote: »

On what grounds is any of this legislation "unconstitutional"?

Some landlords believe that "property rights" includes their right to charge whatever rent the market will bear.

GGTrek

OP, my suggestion is to contact first these solicitors:
https://www.lkshields.ie/news-insights/publication/crowd-funding-the-irish-brexit-challenge

The issue is champerty and maintenance (unbelievable that a 1634 statute is still valid ) the post Victor gave you the right pointers. It might be argued that if the only people funding the case are landlords that surely have an interest, both issues will disappear.
You need proper legal advice first on
a) the crowdfunding legality
b) the chances of success of the test case
c) selecting the right test case or if it is better to start a constitutional review without going through a test case.

Do not worry about 700k cases in legal fees quoted above. Judicial reviews are usually cheaper than the type of case quoted by previous post, but still you should be ready for 70-80k of funding.

I am interested, so you can PM me once you got the legal advice.

LuckyLloyd

Lumen wrote: »

Some landlords believe that "property rights" includes their right to charge whatever rent the market will bear.

Relevant section from the constitution:

Private Property
article 43
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.

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) 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.

Second section of Article 43 makes that contention invalid imo.

Lumen

LuckyLloyd wrote: »

Second section of Article 43 makes that contention invalid imo.

I disagree, the second section is irrelevant. The second section constrains the first, but the first says nothing about right to profit, only enumerating the right to own, transfer, bequeath and inherit.

You're not prevented from selling, transferring, bequeathing or inheriting a property with tenants so the constitution offers no support at all for the OP's position.

In my completely unqualified opinion, obvs.

LuckyLloyd

Lumen wrote: »

I disagree, the second section is irrelevant. The second section constrains the first, but the first says nothing about right to profit, only enumerating the right to own, transfer, bequeath and inherit.

You're not prevented from selling, transferring, bequeathing or inheriting a property with tenants so the constitution offers no support at all for the OP's position.

In my completely unqualified opinion, obvs.

Fine - it seems we have reached the same ultimate conclusions, though we've taken different paths to get there.

Bottom line is that there's nothing "unconstitutional" about the 2015 and 2016 RTAs.

davindub

LuckyLloyd wrote: »

Fine - it seems we have reached the same ultimate conclusions, though we've taken different paths to get there.

Bottom line is that there's nothing "unconstitutional" about the 2015 and 2016 RTAs.

I concur.

One part of Article 43 is actually breached by numerous acts. But obviously the provisions for social justice and common good have been used to defend the challenges.

As far as I remember the 1981 challenge focused on article 40. But it was a different situation back then, leases were very uncommon and the rent controls only focused on controlled properties which had no leases (there are Senead discussions on the subject if anyone wants to know why the government persisted to re-introduce legislation). Leases are a transfer of property rights so I believe any challenge will have to be under article 43 and one of the reasons the RTB act excludes licensee's from its application.

Grassey

GGTrek wrote:

The issue is champerty and maintenance (unbelievable that a 1634 statute is still valid ) .

As unbelievable as the Statute of Frauds 1695 still in force that the sale of a property must be in writing?

Or the Magna Carta 1215, It established a fundamental principal of the rule of law: that executive power should not be above the law, but should be subject to the law of the land. "... to no one deny or delay right or justice’ (Clause 40 of Magna Carta 1215)"

Both still in force... Just because it's an old law does not make the underlying principles less sound.

Really Interested

Lumen wrote: »

I disagree, the second section is irrelevant. The second section constrains the first, but the first says nothing about right to profit, only enumerating the right to own, transfer, bequeath and inherit.

You're not prevented from selling, transferring, bequeathing or inheriting a property with tenants so the constitution offers no support at all for the OP's position.

In my completely unqualified opinion, obvs.

http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/(WebFiles)/7FC625DAD10A956C802575F3002D6B7E/$FILE/Housing_%5B1983%5D%20IR%20181.htm

Lumen

Really Interested wrote: »

http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/(WebFiles)/7FC625DAD10A956C802575F3002D6B7E/$FILE/Housing_%5B1983%5D%20IR%20181.htm

tldr: "The effect of the rebates permitted by s. 9 is that, for a period of five years after the enactment of the Bill as law, landlords are to receive an amount which will be substantially less than the just and proper rent payable in respect of their property. In the absence of any constitutionally permitted justification, this clearly constitutes an unjust attack upon their property rights."