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NUI Galway on RTÉ Brainstorm: The significant human rights issues around evictions in Ireland
Author: Dr Padraic Kenna, School of Law
Opinion: media reports of high profile evictions mask what is a lengthy and traumatic social and legal process
Evictions in Ireland are an emotive issue and the removal of people from their homes by force generates strong feelings. Eviction is not one of life's ups and downs; it is a mark of punishment inflicted by society through State institutions and the legal system. The issue is topical with reports of bank and vulture fund mortgage possessions and family homelessness caused by eviction from private rented housing. Of course, the eviction of Travellers from "unauthorised" sites has long been a feature of Irish society.
Stages of evictions
Media reports of high profile evictions mask what is really a lengthy social and legal process. People almost always avoid the trauma of a physical eviction. As the Central Bank of Ireland describes it, they "surrender" their homes and leave. Thus, forcible removal may not be necessary for an eviction to occur.
EU research identified three phases to evictions starting with a legally recognised formal instruction to leave (not always written). The first, or pre-court stage, involves exchanges of letters, procedures (codes of conduct) and meetings. Most people leave their homes at this stage, but none of these removals are recorded officially as evictions.
From RTÉ Radio 1's Drivetime, John Cooke meets people who are facing eviction from their homes in the Dublin 8 area
The second or court phase can involve lengthy proceedings, adjournments, strike outs, settlements, suspensions or court orders. The third phase is between the court order for possession and the actual physical eviction or execution of the order (if it actually takes place). Thus, most actual evictions do not involve court appearances, or physical removals, but are "involuntary" or forced "surrenders" of rights of occupation, to avoid the ordeal of the eviction process.
For private tenants, where the majority of evictions take place, the pre-court phase takes place through the Residential Tenancies Board, which monitors the numbers of cases, including those of illegal eviction. However, private tenants do not get a opportunity to have the proportionality of their eviction assessed by a court. Local authority tenants have such a procedure established in law and, although the numbers of proceedings are high, the number of actual evictions are low.
There are no comparable official statistics on the length of these stages across Europe. Banking industry claims of slow Irish proceedings are purely speculative; they usually compare only parts of the UK and ignore the more elaborate systems of France and Italy. Indeed, the levels of State intervention, support and mediation services at the early stages are what make the difference, rather than purely legal approaches, although significant human rights issues arise.
From RTÉ Radio 1's Morning Ireland, Mike Allen from Focus Ireland discusses new changes due to be introduced to strengthen tenants rights in renting property
Bunreacht na hEireannstates that the dwelling of every citizen is inviolable and "shall not be forcibly entered save in accordance with law." Human rights law regards evictions as most extreme forms of interference with the right to respect for the home. Any person at risk of such interference should have the proportionality of this interference examined by a court. Evictions should not result in homelessness, and alternative accommodation must be secured.
Indeed, the new Land and Conveyancing Law Reform (Amendment) Act 2019 sets out the factors which Irish courts should consider in relation to the proportionality of this interference with rights to home. Judges in Poland have held that "evictions to nowhere" were unconstitutional, and did not respect and protect the inherent and inalienable dignity of the person. Not so, in Ireland, though.
The causes of evictions largely relate to income loss, illness, over-indebtedness or personal difficulties, leading to rent, mortgage or utility arrears. The availability of support from family, community and State agencies is a major factor in whether an eviction proceeds or not. Legal aid may also be a factor, although not a decisive one. A Central Bank study of 21,000 households in mortgage arrears showed those most at risk of eviction had lower income and higher mortgage costs. Most were unemployed or divorced and were more vulnerable family types, such as single borrowers with multiple children.
From RTÉ News, tenants in Cork avoid eviction after the local council and housing agency Clúid acquires the apartment complex
"An Irish solution?"
Polar opposite views on evictions prevent any sensible public debate. "Spokespersons" complain about how difficult it is to "throw out" people who don't or cannot pay their mortgage or rent. But Ireland has some human rights protections in the Constitution and recent legislation, although almost all evictions take place from the rented sector. Yet the idea that eviction constitutes an interference with the right to respect for home is not accepted by many Irish lawyers and judges.
Of course, modern European states like Ireland do not operate on these extremes only. While the State protects property and contract rights, it also has extensive support for those at risk of eviction with means-tested social housing support, direct provision, or rent support for those renting privately.
States mediate and act to defer actual evictions until alternative accommodation is available, particularly where children are involved. There will always be those who seek to "punish" those who are poor, as a warning to others. But is there any excuse for Irish State agencies to use terms like "surrender’ to describe evictions from homes, especially where no court has approved it, or considered the evicted persons rights. An Irish solution?