Constitutional issues in the regulation and implementation of real estate tax - Part I: The essence of the right to property

Abstract

Property rights, unlike other fundamental rights, embody conflicting individual interest and common good objectives. Correspondingly, the owner does not benefit from a level of protection equivalent to that afforded to the holders of other fundamental rights. According to the historical interpretation of the European Convention on Human Rights, the right to property guaranteed under Additional Protocol No. 1 does not preclude the imposition of a tax whose amount may be equivalent to the entirety of the taxpayer’s assets. In legal systems where constitutional adjudication has established an absolute doctrine of essence of rights, the owner is deemed to possess an inviolable core sphere within the scope of the right to property. A form of taxation that interferes with the very essence of the right to property is referred to as “confiscation” in comparative law. In determining which real estate taxes display a confiscatory character, decisive factors include the objectives pursued by the legislator, the taxpayer’s ability to pay, and the proportion of the tax burden in relation to the taxpayer’s total income.