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No rent freeze under FF government as party states it would be unconstitutional

Fianna Fáil has been legally advised against ‘a flat rent freeze’.

Fianna Fáil Spokesperson on Housing, Planning & Local Government Darragh O’Brien.
Fianna Fáil Spokesperson on Housing, Planning & Local Government Darragh O’Brien.
Image: Sasko Lazarov/Photocall Ireland

FIANNA FÁIL HAS published legal advice stating that the roll out of a rent freeze would be unconstitutional. 

Today, the party announced a housing package of €2.1 billion in additional spending above pre-committed levels.

The party’s plans include an SSIA-style top up scheme for First Time Buyers, the retention and expansion of the Help to Buy scheme and a promise to build 50,000 affordable homes which will be bought for under €250,000.

However, when quizzed on the possibility of a rent freeze under a Fianna Fáil government, the party’s housing spokesperson said Fianna Fáil had been advised against “a flat rent freeze”. 

“We did look very strongly at the whole rent freeze issue because to a certain extent the rent pressure zones that were introduced by the government have failed,” said Mary Fitzpatrick, a candidate for Dublin Central. 

She added: ”We have been advised legally that it is unconstitutional. So we clearly can’t do something that’s unconstitutional.”

Despite allowing a Sinn Féin Bill proposing a rent freeze pass in the Dáil in December, the Fianna Fáil leader Micheál Martin previously failed to commit to a rent freeze if he enters into government. 

Continued questioning on whether Fianna Fáil would support such a freeze and what evidence they had to support their decision not to commit to a freeze, resulted in the publication of the party’s legal advice.

Barrister Darren Lehane concludes that a general rent freeze “would be unconstitutional” as it would restrict the property rights of the owners of rental properties”. He states that it could not be justified, stating that it would be “disproportionate”.

David Kenny – Assistant Professor of Law at Trinity College Dublin and co-author of the leading text on Irish constitutional law, Kelly: the Irish Constitution – explored the proposed legislation for a rent freeze last year for TheJournal.ie

He stated that the proposed rent freeze laws could pass the test in the courts. 

He wrote that when assessing if a restriction on property rights is unconstitutional, the courts apply a proportionality test: they assess if the benefit of the law in advancing the common good is outweighed by the harm to personal rights. 

In assessing this, context is king, said Kenny, stating that the courts have to consider the particular objectives of the law and the current social problems it is designed to address. 

Martin has said that rents “need to be controlled” stating that the rent pressure zones will be retained and strengthened. The party has committed to reviewing the current rent-pressure zones which sets out that rents can only increase by 4% in some areas. However, research has shown that rents are rising higher than the 4% in some counties. 

In a bid to tackle rising rents, Fianna Fáil has committed to introduce a €600 rent tax credit for all private renters. It also wants to create a National Rent Deposit Scheme with a “life time deposit” that moves with the tenant until they withdraw it.

It is also proposed to double the resources of the Residential Tenancies Board so it can carry out investigations. 

A three-year rent freeze is part of Sinn Féin’s housing policy.

Speaking yesterday, Eoin Ó Broin said the only way a rent freeze will be imposed is if sufficient numbers of Sinn Féin TDs are elected. 

He said those entering the rental market are paying more than €5,904 more per year than in 2011 and €9,720 more in Dublin since Fine Gael came to office.

He was also asked why a rent freeze would work here when it has struggled in places like Berlin. Ó Broin said the party’s policy would not just be that a rent freeze is the answer, stating that Sinn Féin would ramp up social housing builds, which would in turn reduce the numbers on the Housing Assistant Payment. He said taking people on HAP from the private sector would reduce rents. 

Reacting to Fianna Fáil’s legal advice on a freeze being unconstitutional, he said tonight, that it was “disappointing to see Fianna Fáil once again abandon renters” and attempt to hide behind legal opinion on Sinn Féin’s rent reduction and freeze legislation.

“It was clear from the weekend that Micheal Martin was desperately looking for an excuse to walk away from their tepid support for our Bill,” he added.

“Sinn Féin does not believe that out Bill is unconstitutional. We were told that delivering 20% of private developments for social and affordable use under Part V of the Planning Acts would be unconstitutional, and yet it wasn’t. We were told Alan Kelly’s two year rent freeze in 2015 would be unconstitutional, and yet it wasn’t. Too often politicians try to hide behind the Constitution when they don’t want to do something. And so it with this Bill,” he said.

Other parts of Europe have taken a different approach. 

Berlin’s state cabinet has agreed to a rent freeze for five years from 2020 in a bid to tackle the rising cost of rents in Germany’s capital city. 

Only a small minority of people living in the capital own their own home, and rising rents have prompted long-term renters to leave the city as a result. 

Berlin has seen its housing costs double over the last decade as employees lured by the strong job market move into the city.

The freeze means “protection against rent increases for 1.5 million apartments,” tweeted the Berlin government’s department for urban development and housing at the time. 

Only social housing and new builds that have not been let out would be exempt from this.

The ESRI’s Conor O’Toole insiststhat each rental market has its own specificities, however, and said “there is international evidence that short-term measures for tenants won’t solve the housing supply crisis”.

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