Theoretical perspectives on private ownership and the public / private interface in land law

Question 1

In rem

Answer 1

Rights that are effective against the world at large

Question 2

Can a leasehold estate be indefinite in nature?

Answer 2

England no (need proof of end point), here yes

Question 3

Estates

Answer 3

Ownership, allows owners to do whatever they want with the land. Leasehold and freehold.

Question 4

Easements

Answer 4

Right of way, specific right to do something on land that isn’t your own

Question 5

Dynamic v static security

Answer 5

Dynamic: Facilitating exchange and transfer
Static: attachement to the land eg family home etc

Question 6

Anthony Honoré, Ownership

Answer 6

the right to possess, to use, to manage, to the income, to the capital, to security, the incident of transmissibility, the incident of absence of term, the duty to prevent harm, liability to execution and residuary character

Question 7

Bundle of Rights per Shanley J

Answer 7

use, exclusive enjoyment, maintaining and recovering possession, disposal, destruction, alter, alienate or transfer

Question 8

Arguments for Private Property rights

Answer 8

Labour theory (Lock), personality theory (Hêgel), Autonomy + privacy, democracy-enhancing, human flourishing

Question 9

Private property rights to do with efficiency?

Answer 9

Tragedy of the Commons: If you don’t have private ownership then people are incentivised to overuse property, counteract under exploitation of property,

Question 10

Constitutional protection of property rights:

Reid v Industrial Development Agency [2015] IESC 82

Answer 10

• says all 3 articles should be considered together especially 40.3.2 and 43
• Should compulsory purchase of property be more difficult when the property to be acquired is a dwelling?

Question 11

wider view taken of constitutional meaning: PC v Minister for Social Protection [2016] IEHC 315; [2017] IESC 63

Answer 11

• Statutory rule provided that if sent to prison as an OAP couldn’t receive the pension - against ECHR
• Case turns on whether there is a form of double punishment going on
• Could holder of state pension be deemed to have a property right?
• HC and SC said when entitlement such as social welfare so susceptible to change then not included
• Civil servants not included
• Distinction here is that it’s entirely social welfare

Question 12

Carson v UK [2010] 51 EHRR 13

Answer 12

• if you work in the UK and make national insurance payments then you are entitled to a pension even if you move away, although it’s less
• Said to have been unconstitutional
• Said for social welfare etc state needed a lot of flexibility so didn’t breach any rights

Question 13

Constitutional impact: Shirley v AO Gorman [2006] IEHC 27, [2012] IESC 7

Answer 13

• Upheld s7 of the Landlord and Tenant (Amendement) Act 1984 against challenge on constitutional property rights grounds
• Gave certain tenants the right to buy out their landlord, only having to pay 1/8 of the market value (long time tenancies - property improved in some way)
• This was between two commercial entities - one was benefitting against the other
• Argument that was not for social justice
• Held that it was socially just to establish the legislation - spread out ownership more evenly
• HC said 1/8 was just. SC was stricter: said 1/8 only provided there is proof that the tenant improved the property - criteria had to be met
• Balance between the right of the individual and the rights of the collective

Question 14

*Irish Life and Permament v Duff [2013] IEHC 43

Answer 14

• impact of constitutional protection of property rights and inviolability of the dwelling on interpretation of mortgagees right to take possession
• Rules said that as a lender had right to recover possession as soon as payments stopped without needing a court order (English common law)
• Constitutionally, lenders’ rights to their property but also borrowers’ rights and the protection of the dwelling
• Hogan: Common law principle inconsistent with Constitution and that anyone at risk of losing their home was entitled notice and to be heard by an impartial party, otherwise not protection of the home

Question 15

3 principles in A1P1 of the ECHR

Answer 15

1. Peaceful enjoyment of possession
2. Deprivation subject to Conditions: in the public interest, provided for by law.
3. Control of Use in accordance with the General Interest/to secure Payment of Taxes/Other Contributions

Question 16

ECHR impact: Pye v UK

Answer 16

• If you occupy for 12 years and they don’t stop you, you can claim rights to that land - squatters’ rights
• Doctrine challenged as an interference under A1P1
• Squatting on valuable agriculture land, acquired rights
• Initially lawfully entitled to be on the land - permission to graze cattle. Permission ran out and was never renewed
• There for long enough to claim rights- loss for the property owner
  -Chamber decision: disproportionate interference with A1P1: lack of compensation, inadequate procedural protections, difficult to find out that owners’ right under threat. Concluded that the impact was to impose an excessive and unfair burden on the owner
• Grand chamber decision: permissible limitation of action. Reversed the decision. Characterised it as a permissible limitation of action - controlling in a fair way what an owner was required to do. Common (well known), easy to avoid effect (owner just had to make some kind of attempt, legitimate way of controlling the use of land)
  concern that it would impact Irish law on adverse possession
  Showed that human rights values and principles could have an impact on what was previously considered sacrosanct principles of ownership

Question 17

Donegan v Dublin City Council [2008] IEHC 288, [2012] IESC 18

Answer 17

• Resulted in a finding that the relevant legislation at the time (Housing Act 1966) was incompatible with rights in article 8 as was procedurally deficient
• Didn’t give enough of an opportunity for the arguments to be tested independently
• Proportionality in respect of fair balance needs to be looked at, emphasised the procedural aspect

Question 18

Lattimore v Dublin City Council [2014] IEHC 233

Answer 18

• tenants with strong property rights can use article 8 to counteract rights of property owner
• Living in a council house that had previously been rented by his parents - argued his home under A8
• 70 at the time of the case and suffering from mental health problems, relying on a community network
• Argued would be disproportionate for him to be denied tenancy
• Rejected - significant factor was that it was a three bed house - should be occupied eg a family
• HC found that, yes, you could rely on article 8 but the interference involved wasn’t disproportionate