The Gazette 1981

GAZETTE

MBER1981

what was done was not permitted

by Article 43 Section 2; that, if

what the Oireachtas has done is

permitted by Article 43, Section 2,

no question of injustice requiring

State action under Article 40,

Section 3, Sub-section 2, can

arise; that Part II of the Act must

be tested for constitutional validity

as at the time of its enactment and

that it cannot be held to have lost

that validity by mere passage of

time or changes in economic

circumstances; that even if the

State had any duty to review rent

control periodically, it had in fact

done so.

The Court noted that the Acts

enjoyed a presumption of validity

until the contrary was clearly

established and if authority for the

legislation could be found under the

provisions of Article 43, that Article

could be relied on when the

legislation was challenged. There

existed a double protection for the

property rights of a citizen (under

Article 43). The State cannot abolish

or attempt to abolish the right of

private ownership as an institution or

the general right to transfer, bequeath

and inherit property. In addition a

citizen had the further protection

under Article 40 as to the exercise by

him of his own property rights in

particular items of property.

The Court declined to accept the

view expressed by the Court in

Attorney

General

Southern

Industrial Trust Limited and Simons

(1960) 941 L T

161, as follows:—

"In any event, in the opinion of

the Court, the property rights

guaranteed are to be found in

Article 43 and not elsewhere, and

the rights guaranteed by Article

40 are those stated in Article 43"

and held that:—

"Article 43 did not state what the

rights of property are. It

recognises private property as an

institution

and

forbids

its

abolition. The rights in respect of

particular items of property are

protected by Article 40 Section 3,

Sub-section 2, by which the State

undertakes by its laws to protect

from unjust attack and in the case

of injustice done, to vindicate the

property rights of ever citizen",

and approved the contrary view

expressed by Davitt P. in the High

Court in the same case.

The Court held that the legislation

could not be regarded as regulating

or delimiting the property rights

comprehended by Article 43 and

must be examined for its validity in

relation to the provision of Article

40.3.2 only.

The question to be decided was

whether the impugned provisions

constituted an unjust attack on the

property rights of the Plaintiffs.

The Court noted that the

legislation which contained the

statutory provisions by means of

which rents were determined and

increases restricted was not limited in

duration, that its terms were

mandatory and generally did not

permit any person affected by its

provisions to contract out of their

application. To the extent that these

statutory provisions interfered and

rendered ineffective the exercise by

the owners of the houses and

dwellings affected of their property

rights in relation thereto they

constituted in the opinion of the

Court an attack on such rights.

The Court noted that Rent

Control was applied only to some

houses and dwellings and not to

others, that the basis for the selection

was not related to the needs of the

tenants, or to the financial or

economic resources of the landlords

or to any established social necessity

and since the legislation was not now

limited in duration it was not

associated with any particular

temporary or emergency situation.

Held

(per O'Higgins CJ.):

(1) That such legislation to escape

the description of being unfair and

unjust would require some adequate

compensatory factor for those whose

rights were so arbitrarily and

detrimentally affected and that no

such compensatory factor was to be

found.

The Court noted that the vast

majority of rents were determined

under Section 7 of the Act and that

once basic rents were determined

under Section 7 and Section 9 no

review was now permitted. The

absence of any power to review such

rents, irrespective of changes in

conditions

was

itself

circumstance of inherent injustice

which could not be ignored. When

this was coupled with the absence of

any provision for compensating the

owners whose rental incomes were

thus permanently frozen regardless of

the significant diminuition in the

value of money, the conclusion that

injustice had been done was

inevitable.

(2) That the provisions of Part II of

the Act of 1960 (as amended)

constituted an unjust attack on the

property rights of the landlords of

controlled dwellings and were

therefore contrary to the provisions of

Article 40 section 3 sub-section 2 of

the Constitution.

(3) With regard to Part IV,

that a restriction to the extent of

causing in some cases an almost

permanent alienation from the

landlord of the right to get possession

of premises was constitutionally

invalid because it was an integral part

of the arbitrary and statutory scheme

whereby tenants of controlled

dwellings were singled out for

specially

favourable

treatment

regardless of whether they had any

social or financial need for such

preferential treatment and regardless

of whether the landlords had the

ability to bear the burden of

providing such preferential treatment.

(4) Having referred to

Maker

Attorney General

[1973] I.R. 140,

147

The State (Attorney General) v.

Shaw

11979] I.R. 136 and

King v.

Director of Public

Prosecutions,

Supreme Court—31 July 1980—un-

reorted, that even if it could be held

that the restrictions on the right to

recover possession contained in Part

IV did not suffer from the same fatal

invalidity as those controlling rent,

they could not be given a life of their

own as representing duly enacted

provisions, and, accordingly Part IV

must fall as part of an unconstitu-

tionally unjust attack on the property

rights of the landlords affected.

Dorothy Blake & Ors. and The

Attorney General and

Patrick

Madigan v. The Attorney General—

Supreme Court

(per O'Higgins, C.J.),

29 June 1981; 11981] ILRM 34 (the

new Irish Law Reports monthly

published by Irish Academic Press).

SUCCESSION ACT 1965

The state of testacy depends on the

effectiveness of the execution of the

Wm, not on the effectiveness of the

operation of the Will. A person who

has made a Will in accordance with

the statutory provisions and has

disposed of his entire estate dies

testate and in every other case dies

partly testate.

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