04 February 2022

Property, Proportionality, and Marginality

Mediating Property Rights and Home Rights in Unlawful Occupation of Publicly Owned Land

The complex relationship between private law rights, constitutional and human rights protections, and public law obligations is cast into sharp relief in disputes concerning the unlawful occupation of land owned by public authorities. This problem poses the challenging question of how private rights – in this case, the property rights of a public housing authority – are modified, whether in substance or in terms of remedies, by the impact of the assertion of those rights on others. It raises the possibility, first flagged by the South African Constitutional Court, that ‘the expectations that ordinarily go with title could clash head-on with the genuine despair of people in dire need of accommodation’. The Irish Supreme Court recently explored this terrain in Clare County Council v McDonagh, delivering a landmark judgment that collapsed, at least in respect of remedies, a previously rigidly-drawn distinction between the private law rights and the public law obligations of housing authorities. The judgment breaks important new ground in emphasising the underprivileged and marginalised status of the Travelling community, and furthermore, in identifying that status as a factor that could weigh against the granting of an injunctive remedy.

Engaging Home-Rights, Triggering Proportionality Analysis

The case involved an appeal against a mandatory interlocutory order granted by the High Court and upheld by the Court of Appeal. The order required the appellants, a husband and wife who are members of the Travelling community, to vacate a council-owned site along with their two sons and other extended family.

The defence raised by the appellants centred on their rights in respect of their home under Article 8 of the European Convention on Human Rights (ECHR) and the protection for the inviolability of their dwelling secured by Article 40.5 of the Irish Constitution. The Supreme Court discharged the mandatory interlocutory order granted by the High Court.

The Court held that both the ECHR and constitutional protections were clearly engaged on the facts of the case, but that the level of protection that the appellants enjoyed was diluted by the unlawfulness of their occupation. Crucially however, that unlawfulness did not obviate the need for a proportionality assessment by an independent tribunal of any proposed decision that would deprive them of their home.

This wide-reaching holding raises the prospect that a proportionality assessment may be required in respect of decisions that do not ordinarily involve such analysis, for example, the appointment of a receiver in respect of residential property where a mortgagor is in arrears, or the eviction of a tenant from private rented accommodation. In addition, a proportionality assessment will be required even where occupation is unlawful, for example, homeless squatting on urban land.

Significantly, the Court held that while Article 8 requires ‘close and continuous links’ to be established between an individual and a place, Article 40.5’s protection was triggered by simply residing in a particular place, allowing it to have broader application than Article 8. Accordingly, a potentially wide range of legal processes for enforcing property rights are now qualified by the need to establish proportionality.

New Pragmatism in Private Law

The Supreme Court adopted a pragmatic approach, determining that the availability of an interlocutory injunction in the circumstances of the case was influenced by two facts: first, the fact that the council owed a statutory duty to the appellants to make provision for housing appropriate to their needs that it had not fulfilled; second, the fact that the appellants, if removed from the land, had nowhere else to go.

The judgment recognised that the enforceability of public authorities’ private law rights can be modified by a failure to fulfil public law obligations. As such, a public authority is not in the same position as a private landowner, since its track record in meeting its statutory obligations appropriately informs any assessment of the legal effect to be given to its private rights.

The Court also expressed a preoccupation with the basic question, ‘where can these appellants lawfully go’, since their removal from council-owned land would inevitably lead them to trespass elsewhere. That fact influenced the Court’s overall balancing analysis concerning the availability of an interlocutory injunction. It reflects Jeremy Waldron’s doubts about the legitimacy of laws that leave individuals without any land (whether publicly or privately owned) where they can lawfully be.

Saving Property’s Centrality

At the same time, and somewhat paradoxically, the judgment both acknowledges and attempts to save what Andre van der Walt termed ‘the logic of centrality’, whereby ‘the presence or absence of property decides cases’. On the one hand, Judge Hogan drew attention to the difficulty that property law and land-use law, at least as traditionally understood and applied in common law jurisdictions, have in accommodating the lifestyle and needs of the Travelling community, noting in the judgment’s first paragraph:

‘…the legal system has not found it altogether easy to accommodate the distinct cultural traditions of the travelling community – such as nomadism and living in large family groups – within its traditional ambit of protecting and enforcing property rights, enforcing laws restraining trespass and legislation designed to give effect to legitimate planning, zoning and environmental concerns.’

That acknowledgment at the outset of the judgment tantalisingly suggested that the decision might tackle the systemic impediments to appropriate engagement with the rights of members of the Travelling community that were astutely observed by the Court.

In fact, the judgment went to great lengths to distinguish the case from unlawful occupation of privately owned land, emphasising the qualifying effect of the local authority’s public law obligations in this respect. The Court stressed that under Ireland’s legislation incorporating the ECHR, courts are not ‘organs of the state’, meaning that no ECHR issue would arise where a private landowner sought an injunction to restrain trespass. However, the Court did not address the horizontal applicability of the protection of the inviolability of the dwelling in Article 40.5 that had been recognised in previous cases, except to note that the courts’ ‘first duty’ would ordinarily be to vindicate property rights.

This analysis suggests an understanding of the property rights of private owners as categorically trumping rights in respect of unlawful dwellings, appearing to pre-empt proportionality analysis in such cases. Furthermore, the Court was quick throughout its judgment to resist any suggestion that the Council’s property rights were modified or weakened by the status and situation of the appellant. It preferred to identify those factors as relevant considerations in the overall balancing analysis that determines the granting of interlocutory injunctions. Thus, the judgment devoted considerable time and effort to heading off any suggestion that it fundamentally altered legal protection for property rights.

Considering Marginalisation and Vulnerability in Property Law

Nonetheless, McDonagh represents a striking judicial attempt to focus attention on the underprivileged and marginalised status of the Travelling community in legal analysis by giving that status weight in proportionality balancing. It suggests that the vulnerability of an individual or group affected by the enforcement of property rights – at least by a public authority – can influence the availability of remedies.

The judgment signals, to quote van der Walt, that attention should be focused ‘much more on the social position, economic status and personal circumstances of the parties involved in property relations or disputes and less on their legal status or established property rights.’ While not shaking the foundations of private law, such a development, if consistently applied, could create new space for courts to address the harsher effects of private property rights in a more nuanced fashion, and to develop our understanding of the significance of non-ownership interests in the occupation and use of land.

SUGGESTED CITATION  Walsh, Rachael: Property, Proportionality, and Marginality: Mediating Property Rights and Home Rights in Unlawful Occupation of Publicly Owned Land, VerfBlog, 2022/2/04, https://verfassungsblog.de/property-proportionality-and-marginality/, DOI: 10.17176/20220205-001212-0.

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