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Ireland's political and cultural magazine
36 April 2023 April 2023 PB
The affordable and ‘forever
home’ amendment
By Edmund Honohan
the State’s cash flow and avoid breaching
Maastricht Treaty borrowing guidelines.
This article will open up the possibility of
brownfield site assembly, even for properties
which are not derelict and unoccupied. This is the
key to the redevelopment of our inner cities. There
is no reason why the State should not, immediately
after enclosure, license builders, small and large,
to start working.
We might also be able to accelerate the climate-
change agenda for carbon capture measures,
onshore wind farms, solar roll out and urgent
biodiversity investment.
ARTICLE 43.3.3
A householder residing and having a contractual
right to reside should have, as a minimum, a
lifetime inalienable property right to quiet
enjoyment and security of tenure reserving
payment to the beneficial owner of no more than
double the opportunity cost of the capital
employed, measured by reference to available
returns in the corresponding domestic gilt-edged
bond market.
This is about householders whether they are
mortgagors or tenants. Both will lose their right to
security if they default. But responsible
householders will always win.
There really is no excuse for not re-imagining
housing tenure in the interests of society in this
way.
There is an acceptance that we must now
scale-up the rental model to rank alongside
public, AHB and private ownership. But this article
will set the terms of engagement for future capital
market investment in housing construction,
playing by our rules. It is “bankable”, a solid
investment with healthy long-term returns.
It also opens the door for the co-operative
housing model which is successful elsewhere in
Europe.
However, with the new article, we will no longer
pay for the speculative windfalls currently being
engineered by investment funds manipulating the
housing market.
Edmund Honohan was until recently the Master
of the High Court.
1975. The Court held that land-use zoning “cannot
favor rich over poor, violating the State
Constitutional requirements of substantive due
process and equal protection”.
In a later opinion, the court wrote that “Our
Mount Laurel decisions recognized a
Constitutional obligation that municipalities
armatively aord a realistic opportunity for the
construction of their fair share of the present and
prospective need for low and moderate income
persons in the State”.
The New Jersey court relied on “underlying
concepts of fundamental fairness in the exercise
of police power”, adding that “the State controls
the use of the land, ALL of the land”.
I believe the same rationale supports not only
zoning, but density, building standards, even
conditionality as to terms of future letting terms
and conditions. A game changer.
ARTICLE 43.3.2
The State may at its sole and sovereign discretion
opt to enclose any land with a Parliamentary title
extinguishing all prior estates and entitling
claimants to their fair share, for principal, interest
and disturbance, annually for twenty years of a
sum equating to seven and one half percent of the
then market value of the land, and no more.
This is clearly not the 1974 Kenny report
proposal. But it is the minority Kenny report, the
proposal favoured by the two Departmental
representatives on Judge Kenny’s committee. It’s
the alternative to Kenny, one considered by the
ocials as constitutionally sound. Their idea,
translated to today’s terminology, was a State call
option at market value. I’ve reworked it.
I used the concept of “enclosure” as a gesture
to our forebears whose commonage was, in this
fashion, forcibly stolen centuries ago. I see no
reason why the technique shouldn’t be employed
where, for example, lands with full planning
permissions are sitting undeveloped, hoarded by
investors who are manipulating house prices.
The annual payment proposed will be easily
converted into a full market value cash lump sum
immediately in the capital markets, given the
quality of the covenant. It’s “gilt-edged”. The
twenty-year scheduling of payments will minimise
P
roperty rights are, as Blackstone
pointed out in his Commentaries on
the Laws of England (1765), “absolute,
without any control or diminution,
save only by the laws of the land”.
Article 43 of our Constitution confirms rights of
property, and limits the scope of legal interference
with a view to reconciling their exercise with the
exigencies of the common good”.
If we allow capital to exploit its constitutional
status, crowding out the claimants of other rights,
we are ‘constitutionalising’ capital and ceding
sovereignty to the owners of the brass-plate
businesses which are collateralising the land of
Ireland.
Sovereignty is ceded when all policy options
are o the table except the one dictated either by
the lobbyists of the capital market, including tax-
’neutrality’ for their client base, or by the unspoken
threat of capital flight.
The shadow banking ‘squid’ business model for
accumulation-capitalism is fuelled by leverage,
arbitrage, derivative-speculation, asset-shielding
and loss-shifting. And there’s some money
laundering also in the mix.
Because financialisation ‘on steroids’ has
become a juggernaut in direct property
purchasing in Ireland only in the last fifteen years
or so, it is time to review the social contract which
constitutionalised property rights as they were
understood back in 1937.
Thomas Piketty, whose groundbreaking
analysis of modern capitalism has not been
bettered, wrote recently that “the ultimate goal of
alternative finance is to promote a new wave of
financial deregulation and buy o our democratic
institutions”. If this is where we are heading we
should amend the Constitution first ASAP.
Below is a suite of three new sub-articles to be
added to Article 43.
ARTICLE 43.3.1
Even when land and its appurtenances are in
private ownership, its user, enjoyment and
management shall be controlled by public law for
sustainable development including, where
necessary, through armative action to secure
the citizen’s right to fairly located and aordable
accommodation.
The central feature of this article is a
constitutional principle found by the Supreme
Court of New Jersey in the Mount Laurel case in
Amend the constitution to rebalance relations
between home-buyers and Global Capital
OPINION
