The Constitutional Protection of Property: How is Respect for Property Rights Reconciled with Conflicting Fundamental Rights of Non-owners?

Respect for property enjoys protection as a fundamental or constitutional right in numerous jurisdictions and under the ECHR. This research will aim to understand the nature of a constitutionally protected right to respect for property through the lens of conflicts between property rights and the fundamental rights of non-owners. Examples include tenants' rights to respect for their private and family life where a landlord seeks possession of a property they occupy as a home, rights to freedom of expression where a landowner ejects political protestors from their land, or the right to equal treatment where a landowner exercises their powers of arbitrary exclusion or free alienation in a discriminatory manner.

Drawing on the caselaw of UK courts and the ECtHR, I will examine how courts approach the resolution of such conflicts, what this reveals about the concept of property that is being defended, and the underlying justification for its defence. Key questions include how courts conceive of the substance of property as a distinctly constitutional right and how this relates to the bundle of entitlements which characterises the private law concept; whether courts treat disputes between owners and non-owners as revealing a genuine conflict of rights requiring some form of proportionality analysis or balancing, or whether they take a 'definitional' approach to balancing whereby the scope of non-property rights are delineated at the conceptual level by the boundaries of property rules or vice versa; how courts conceive of the reasons for affording constitutional protection to property and how this relates to the values underpinning competing fundamental rights. Answering these questions will entail consideration of broader theoretical debates concerning the nature and possibility of rights conflicts, the role of proportionality analysis in constitutional adjudication, and the underlying justifications of rights.