Covid-19 rent freeze does not signal a Damascene conversion

Latest measures may curtail landlords’ property rights but they are proportionate to the scale of the emergency we face

31st March, 2020
Covid-19 rent freeze does not signal a Damascene conversion
Leo Varadkar said recent measures were “unprecedented actions to respond to an unprecedented emergency”. Picture:

Leo Varadkar was asked about the prospect of a “lockdown” following crowded scenes at popular walking trails and beaches earlier this month.

“I wouldn’t use the term lockdown,” the Taoiseach said. He added that the term seemed to mean different things for different countries, and what we needed was clarity. “I think it’s a term that actually causes more confusion than clarity,” he said, so it’s not one he’ll be using.

At the same press conference, details regarding a “rent freeze” were announced. Perhaps a reluctance to use terms that cause confusion should have applied here too.

Although you would be forgiven for thinking otherwise if you were even the most casual observer of the general election campaign, rent freezes already exist in Ireland – albeit for shorter periods than some might wish for.

The Residential Tenancies Act sets out the frequency with which rent reviews may occur. Section 20 of the Residential Tenancies Act 2004 applies to tenancies outside rent pressure zones and, in general terms, provides that a rent review may not happen more frequently than once in each period of 24 months.

Section 24C of the Act deals with rent reviews of tenancies in rent pressure zones. Broadly speaking, reviews can take place not more frequently than every 12 months. In addition to this, the rent may be increased only in accordance with a statutory formula, and must also be in line with market rent.

These rent freezes curtail landlords’ ability to increase rent, but presumably the legislature considered the measures to be proportionate. The debate should not be framed as pro- or anti- rent freeze, but rather what length of rent freeze is proportionate and therefore constitutional. Undoubtedly, the length of interference with constitutionally protected property rights can be a factor in determining whether such interference is constitutional.

On Thursday night, a skeleton Dáil – observing social distancing in the chamber – debated the introduction of a Covid-19 rent freeze set to be introduced by the Emergency Measures in the Public Interest (Covid-19) Act.

The legislation will prevent landlords issuing notices of termination or evicting tenants on the basis of existing notices of termination for the period of emergency. It also provides for a rent freeze, in that no rent increase shall take place during the period of emergency. This period is – for now at least – specified as being for the next three months. It appears that the government will have the power to extend the measures if the Covid-19 crisis continues beyond that point.

Halting rent increases until the emergency is over seems, on any objective analysis, to be an entirely sensible response to the economic crisis that is following hot on the heels of the healthcare crisis we now face. With tens of thousands of job losses across the economy, Eoghan Murphy, the Minister for Housing, has acted swiftly and proportionately.

Yet he was later asked whether this move proved that it is possible to freeze rent; that there really isn’t any constitutional impediment to a rent freeze. Similarly, on Thursday night in the Dáil, opposition TDs said they welcomed the rent freeze, despite the fact that the government referred to it as unconstitutional previously. One opposition TD termed the measures “a Damascene conversion of the government on issues that, before the Covid-19 crisis, were impossible and unconstitutional, such as a ban on evictions and a rent freeze”.

On a superficial level, there is a certain logic to that proposition. Why is such a legislative intervention constitutional now, whereas a few months ago it was deemed not to be? However, it must be remembered that when it comes to the constitutionality of laws, context is key. In the context of the emergency the state faces, measures that might otherwise be deemed unconstitutional are now justifiable and proportionate in bringing about necessary policy objectives. For example, gardaí are being given powers to close down events and public gatherings, and to assist in detaining people if they refuse to self-isolate.

Jack Lynch, the former taoiseach, said that “it would be a brave man who would predict what was or was not contrary to the constitution”. While this is true, the doctrine of proportionality will assist the courts in determining the constitutionality of a particular piece of legislation.

The essence of the doctrine of proportionality is that the means chosen to pursue a legitimate legislative objective should impair rights, such as property rights, as little as possible. Furthermore, such impairment must be proportionate to the policy objective being pursued.

The constitution recognises the “natural right” to private property but also says that the state “may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good”.

Right now, these demands of the common good are pressing indeed. Tens of thousands of job losses are likely in the short term. Tenants must be protected against rent increases which might otherwise legally take place during this period of emergency. Extreme measures are required, proportionate to the extreme crisis.

A measure cannot be regarded as necessary in a democratic society unless it is proportionate to the legitimate aim being pursued. Assuming that the length of the rent freeze can be objectively justified, the legislation enacted is defensible as a proportionate and necessary measure.

As the title of the legislation suggests, the Emergency Measures in the Public Interest (Covid-19) Act 2020, involves taking, as the Taoiseach put it, “unprecedented actions to respond to an unprecedented emergency”.

Rather than a Damascene conversion, the proposed actions adhere to the principle of proportionality which seems to have guided the lawmakers in this area for some time.

Peter Shanley is a practising barrister

Share this post

Related Stories

Government allocates just €75m to Pup in 2022

Manufacturer of monoclonal antibody drug in talks with HSE for supply in Ireland

Public health closely monitoring emergence of new strain as EU prepares to hit ‘emergency brake’

HSE to launch additional multi-lingual vaccine information geared towards non-nationals