Judge hints at po­ten­tial for find­ing a right to hous­ing

The Irish Times - - Home News - MARY CAROLAN

A High Court judge has ex­pressed a view there is po­ten­tial for a fu­ture find­ing of a right un­der Ir­ish law to State pro­vi­sion of ac­com­mo­da­tion or hous­ing.

Mr Jus­tice Max Bar­rett made the re­marks when dis­miss­ing an ap­peal by an el­derly woman with health dif­fi­cul­ties, Mary Du­ni­vya. The ap­peal was aimed at pre­vent­ing her law­ful evic­tion from her rented dwelling so her land­lords’ grand­son can move in in­stead and be closer to col­lege.

Ms Du­ni­vya ap­pealed an April 2017 de­ci­sion of the Res­i­den­tial Te­nan­cies Board (RTB) that a no­tice of ter­mi­na­tion of te­nancy served on her by her land­lords in late 2016 was valid. In his judg­ment, Mr Jus­tice Bar­rett said he had sin­cere sym­pa­thy for her, but she was ef­fec­tively ask­ing the court to ig­nore the law and “do jus­tice” as she per­ceived it.

Rightly bound by law

The land­lords wanted the dwelling for oc­cu­pa­tion by a fam­ily mem­ber, the courts are rightly bound by law and elected “sen­si­ble” law­mak­ers have de­cided, un­der the Res­i­den­tial Te­nan­cies Acts (RTAs), that this was a good ba­sis on which to evict a sit­ting ten­ant.

It would be “gravely pre­sump­tu­ous” of an un­elected court, and “pro­foundly un­just” to deny the land­lords, on “a judicial whim”, their le­gal en­ti­tle­ment.

Ms Du­ni­vya, he noted, had not ar­gued in her plead­ings there was a con­sti­tu­tional right to ac­com­mo­da­tion/ hous­ing such as acted to frus­trate the RTAs and that point was raised only in sub­mis­sions, with “very lit­tle am­pli­fi­ca­tion” as to what was be­ing con­tended for.

In these cir­cum­stances, he would re­mark only that there is “no ex­press con­sti­tu­tional right to univer­sal pro­vi­sion of hous­ing by the State”.

That did not mean a court might not, in a fu­ture case, find that some un­qual­i­fied, un­enu­mer­ated “and as yet un­recog­nised” con­sti­tu­tional right to ac­com­mo­da­tion/hous­ing ex­ists as a mat­ter of Ir­ish law.

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It would be ‘pro­foundly un­just’ to deny the land­lords their le­gal en­ti­tle­ment

Such a find­ing might per­haps be achieved by ref­er­ence to the in­sights to be gleaned from the bur­geon­ing case law, and elab­o­ra­tion of prin­ci­ple by the Euro­pean Court of Hu­man Rights con­cern­ing “min­i­mum State obli­ga­tions” in the area of hous­ing rights, he said.

In this case, there was no “free-wheel­ing” or con­sti­tu­tional right to ac­com­mo­da­tion that could be de­ployed by Ms Du­ni­vya or the court, not with­out be­ing pleaded or sub­ject of sub­stan­tive ar­gu­ment, to up­set the law­ful find­ing of the RTB un­der a law pre­sumed con­sti­tu­tional.

Ear­lier, the judge stressed the ap­peal was con­cerned solely with points of law. The “un­fail­ing ex­pe­ri­ence” of the courts is that per­sons bring­ing such ap­peals es­sen­tially seek a re­hear­ing of their case be­fore the RTB, and it might be con­tended they should be legally per­mit­ted such a re­hear­ing, he ob­served.

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