The Gazette 1981

D E CE MBER1981

GAZETTE

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 v. Southern Industrial Trust Limited and Simons (1960) 941 L T R 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 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 v. 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.

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 in itself a 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

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