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Could the government be sued by private citizens for loses incurred as a result of re
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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."
Yes that would be the key difference between article 43 and 40, article 43 has provisions to allow breach of property rights for the common good. But since 1981 there have been further cases to identify unjust attack that is relevant in section 40, there is a presumption of constitutionality and the courts shouldn't interfere in the role of legislation as in deciding what measures are warranted to achieve the greater good.
Shirley V O'Gorman
“Until some point of absolute extremity is reached where legislation is patently and manifestly not in pursuit of any possible common good exigency, the Court should abstain from interfering with the role of the legislature in deciding what measures are needed.”0 -
I see a lot of selective cut and paste in this thread (in my opinion to further each poster political ideas). A much more balanced review of the limitations of property rights that considers both Blake and Shirley and many other cases can be found here:
Link
The main issue with the RTA 2016 is that it does not introduce any compensation for the limitations imposed to landlords on rent and sale of more than 10 units at a loss of up to 20%! Shirley was compensated for the forced sale of its freehold with a fair value decided by the High Court.
As I suggested to the OP: serious legal advice on funding and law is needed before thinking about any expensive and difficult challenge to the RTA 2016.
However the arguments against such challenge presented in this thread are too simple or too selective or too politically motivated to prove or disprove such a difficult legal argument which should be probably discussed in a different forum.0 -
I see a lot of selective cut and paste in this thread (in my opinion to further each poster political ideas). A much more balanced review of the limitations of property rights that considers both Blake and Shirley and many other cases can be found here:
https://www.flac.ie/download/doc/g_whyte_constitutional_property_rights_and_public_interest.doc&ved=0ahUKEwjk2bfolLnUAhXEtxoKHaBpAHQQFggkMAM&usg=AFQjCNH02w3LK3l19RXm37vM66XkVbV83g
The main issue with the RTA 2016 is that it does not introduce any compensation for the limitations imposed to landlords on rent and sale of more than 10 units at a loss of up to 20%! Shirley was compensated for the forced sale of its freehold with a fair value decided by the High Court.
As I suggested to the OP: serious legal advice on funding and law is needed before thinking about any expensive and difficult challenge to the RTA 2016.
However the arguments against such challenge presented in this thread are too simple or too selective or too politically motivated to prove or disprove such a difficult legal argument which should be probably discussed in a different forum.
Nice link, it gives a warning not to open.
Yet again, and I'm not surprised, but I tire of saying this, you have once again picked out irrelevant facts from a case. But I know your aims, guile the OP or someone else into incurring costs you would not.0 -
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.
LOL. All rent controlled properties were tenancies. The fact that they did not have written leases did not make the occupiers licencees.
The RTB (RTA) Act does not exclude licencees from its application.
The key court decision is the Article 26 referral after the 1981 decision.
Leases create property rights but do not transfer them.
The main ground of constitutional attack on the legislation is that it creates an entirely arbitrary level of rent fro any property depending on when the rent was last reviewed set. Two virtually identical properties can have a vastly different rent. The tenant of the property with the lower rent is being handed at gift at the expense of the landlord based on no other criteria than the rent charged to a previous tenant.
The common good cannot be cited as justifying this as the only good is to one individual.0 -
It would also likely make a property with a low locked rent less valuable than an identical property with a high locked rent.0
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LOL. All rent controlled properties were tenancies. The fact that they did not have written leases did not make the occupiers licencees.
The RTB (RTA) Act does not exclude licencees from its application.
The key court decision is the Article 26 referral after the 1981 decision.
Leases create property rights but do not transfer them.
No article 26 is absolutely nothing to do with deciding if the legislation is valid, only that it can be referred.
In 1981 licensee's were common, not leases, you can learn about why this was in your own time and you should if you are going to post "LOL".
Property rights are never really created so yes they are transferred, property rights do not have to be for fee simple there are varying degrees but again you are trying to play word soup and getting it wrong.
Licensee's are entirely exempt from the RTB act. Since 2004 you have a tenancy (lease, property rights) if you rent a property and are not excluded from the act (e.g. landlord resides there, old rent controlled properties).The main ground of constitutional attack on the legislation is that it creates an entirely arbitrary level of rent fro any property depending on when the rent was last reviewed set. Two virtually identical properties can have a vastly different rent. The tenant of the property with the lower rent is being handed at gift at the expense of the landlord based on no other criteria than the rent charged to a previous tenant.
The common good cannot be cited as justifying this as the only good is to one individual.
The variances existed for many reasons before the act, but yes it does breach in part article 43. I'm not sure you understand how "common good" is applied, the recent caselaw will give you a clearer picture but common good is getting quite wide at this stage. Any constitutional law book will have a section on it.0 -
There was an Article 26 referral of a bill designed to deal with the now de-controlled dwellings. It is the judgement in that case I was referring to not the text of Article 26 itself.No article 26 is absolutely nothing to do with deciding if the legislation is valid, only that it can be referred.In 1981 licensee's were common, not leases, you can learn about why this was in your own time and you should if you are going to post "LOL".
Your source for this nonsense? They were no more common then than now.
Your source for this rubbish? If I own a Fee Simple and give a lease of some or all of it, I create rights in the Lessee.Property rights are never really created so yes they are transferred,Licensee's are entirely exempt from the RTB act. Since 2004 you have a tenancy (lease, property rights) if you rent a property and are not excluded from the act (e.g. landlord resides there, old rent controlled properties).
Tenancies existed long before 2004. Ever heard of Deasy's Act? What the 2004 Act did was made all dwellings which were subject to a lease ( with exceptions) subject to the Act and the regime of the Act. The act applies to dwellings subject to leases. Licencees can reside in such dwellings and the Act specifically gives rights to some licencees. Look at Section 50 and 76.
I have never seen a constitutional law book which mentions "variances".The variances existed for many reasons before the act, but yes it does breach in part article 43. I'm not sure you understand how "common good" is applied, the recent caselaw will give you a clearer picture but common good is getting quite wide at this stage. Any constitutional law book will have a section on it.
I am quite sure you do not undestand how "common good" is applied. Your analysis of the recent caselaw is sadly lacking in case references or reference to any specific text.
Stick to the day job.0 -
There was an Article 26 referral of a bill designed to deal with the now de-controlled dwellings. It is the judgement in that case I was referring to not the text of Article 26 itself.
Your source for this nonsense? They were no more common then than now.
Your source for this rubbish? If I own a Fee Simple and give a lease of some or all of it, I create rights in the Lessee.
Tenancies existed long before 2004. Ever heard of Deasy's Act? What the 2004 Act did was made all dwellings which were subject to a lease ( with exceptions) subject to the Act and the regime of the Act. The act applies to dwellings subject to leases. Licencees can reside in such dwellings and the Act specifically gives rights to some licencees. Look at Section 50 and 76.
I have never seen a constitutional law book which mentions "variances".
I am quite sure you do not undestand how "common good" is applied. Your analysis of the recent caselaw is sadly lacking in case references or reference to any specific text.
Stick to the day job.
Yes I have heard of Deasy's act.....what has it got to do with the properties available in 1981 or have you bothered to check? Caselaw you can look up yourself can you not? There are quite a few on common good, no excuse for not reading all of them before telling someone they are wrong.
Also you did state very clearly article 26 was the main subject of the constitutional challenge, you have clearly missed that article 26 can only apply to new legislation not the existing legislation. But again, it has nothing to do with the outcome, but you are looking at the wrong case, which tells me a lot about where you are getting your answers from.....
Anything else you can research yourself, that would be the normal thing. But I did mention earlier that you can find information in the seanad papers around that time, so there you that's helping you.
My "day job" was law, I specialised in planning, development and waste management. I also have experience before 2004 and after doing pro-bono work. I won't ask yours, it can't be much, but if you ever do find yourself in law, you would be advised not to speak to anyone in the way you do, you can be mistaken occasionally, that happens, but this supercilious attitude and being wrong is unforgivable. And at the end of the day solicitors work together, refer clients to each other, etc.0 -
Deasy's Act was 1860 and it defined tenancies. they did not spring up in 2004. Where is your authority for the proposition that there were very few leases in 1981? I can't look up what doesn't exist.Yes I have heard of Deasy's act.....what has it got to do with the properties available in 1981 or have you bothered to check? Caselaw you can look up yourself can you not? There are quite a few on common good, no excuse for not reading all of them before telling someone they are wrong.
I said nothing of the kind. There was new legislation introduced regulating rents which did not survive an Article 26 referral. You are clearly ignorant of this fact.Also you did state very clearly article 26 was the main subject of the constitutional challenge, you have clearly missed that article 26 can only apply to new legislation not the existing legislation. But again, it has nothing to do with the outcome, but you are looking at the wrong case, which tells me a lot about where you are getting your answers from.....
http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/(WebFiles)/7FC625DAD10A956C802575F3002D6B7E/$FILE/Housing_%5B1983%5D%20IR%20181.htm
Your grasp of law is poor. You have read a few nutshells. If you have a link to any source you should post it. making nonsense propositions and justifying it by saying that someone can read it in a book shows a lack of any kind of analytical training.
My "day job" was law, I specialised in planning, development and waste management. I also have experience before 2004 and after doing pro-bono work. I won't ask yours, it can't be much, but if you ever do find yourself in law, you would be advised not to speak to anyone in the way you do, you can be mistaken occasionally, that happens, but this supercilious attitude and being wrong is unforgivable. And at the end of the day solicitors work together, refer clients to each other, etc.0 -
A GoFundMe page for a landlord court challenge?
Yeah, when rents are going through the roof this campaign is definitely going to capture the public's imagination.0 -
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Deasy's Act was 1860 and it defined tenancies. they did not spring up in 2004. Where is your authority for the proposition that there were very few leases in 1981? I can't look up what doesn't exist.
I said nothing of the kind. There was new legislation introduced regulating rents which did not survive an Article 26 referral. You are clearly ignorant of this fact.
http://www.supremecourt.ie/supremecourt/sclibrary3.nsf/(WebFiles)/7FC625DAD10A956C802575F3002D6B7E/$FILE/Housing_%5B1983%5D%20IR%20181.htm
Your grasp of law is poor. You have read a few nutshells. If you have a link to any source you should post it. making nonsense propositions and justifying it by saying that someone can read it in a book shows a lack of any kind of analytical training.
No, I wasn't. Nor am I ignorant of the 1982 legislation that was passed.
I's actually not going to say more, you should know the caselaw if you are what you pretend to be. FE1's cover articles 40 & 43 comprehensively.0 -
i was not talking about the 1982 Act which was passed. I was talking about the Bill before that which was the subject of an Article 26 and never came into force. So much for your knowledge. What the Fe1s cover, comprehensively or not is irrelevant.No, I wasn't. Nor am I ignorant of the 1982 legislation that was passed.
I's actually not going to say more, you should know the caselaw if you are what you pretend to be. FE1's cover articles 40 & 43 comprehensively.
Either you can make a valid point or stand over it or you can't.0 -
Just to update you all.
I have been contacted by an entity who have asked me not to talk about this anymore.
Basically they are already on the ball with this in train for a large group. I've a meeting with them and while I probably won't follow it up, as I have got out of being a landlord myself already, It is interesting to see it is already in motion. If they need a fundraiser I will talk to them about that but I don't actually think they do.
Thanks for the views. It's always good to get various viewpoints on something.0
This discussion has been closed.
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