DAIL IN COMMITTEE. - INCREASE OF RENT AND MORTGAGE INTEREST (RESTRICTIONS) BILL, 1923—THIRD STAGE.
I beg to move:—
Section 4:—
To insert after the word "judgment," line 28, page 6, the words "Provided that where a contract of tenancy entered into since the passing of the Local Government (Ireland) Act, 1898, contains a provision which imposes upon the landlord liability for, or in respect of, Poor Rate, such provision shall be deemed valid, notwithstanding anything in Section 52 of the aforesaid Act, so that poor rate charged upon the tenant pursuant to the judgment in Bradshaw v M'Mullan, shall not be considered a part of rent "lawfully due" within the meaning of Section 4 (1) (a) hereof.
Deputy Magennis has asked me to move this amendment. I do not know a lot about it, but I do believe that there is something in it that would remedy a defect in the Bill, because where a landlord contracts to pay a certain proportion of the rates by reason of a judgment given in the House of Lords, and which was reversed on appeal here in Ireland, the landlord was relieved of that responsibility.
I do think that before this Bill is passed if this amendment is not accepted there should be a provision in the Bill whereby that could be restored. If a landlord covenants with a tenant to pay any portion of the Poor Rate I do not think that he should be allowed to get out of that liability by a judgment of any Court. Lawyers of course turn cases inside out, and many times attach meaning to them that was never intended. I move that this amendment be inserted.
This amendment that stands in Deputy Prof. Magennis' name is intended to deal with a grievance that has become known as the Bradshaw and McMullan grievance. Whatever may be said as to the propriety of quoting a particular lawsuit in an amendment to an Act the fact remains that there is or there was in the past a very definite grievance which gave rise to that lawsuit. The Local Government Act of 1898 placed the burden of the Poor Rate on the occupier in all circumstances, and made void any contract to the contrary. A great many people unaware of that went into tenancies under which the landlord bound himself or undertook to pay all rates. It was open to the landlord in law to repudiate that, and to fall back on Section 52 of the Local Government Act of 1898. That procedure can only be compared to a pleading of the Gaming Act. The landlord who did that had undoubtedly his Chapter and Section for it, but it was not an equitable and scarcely an honourable performance. That was the issue involved in this particular case which the Deputy has thought fit to quote in his amendment. Deputy Prof. Magennis, I think, has scarcely had time to read this Bill as closely as he might, because the Bill in fact deals with that question, and the necessity for dealing with it was very much before the minds both of the Departmental Committee which was set up to advise the Ministry and of the Ministry's officials themselves. The process by which it is dealt with is rather elaborate and would need to be carefully followed.
It is right to say there was very little tendency on the part of landlords to fall back on that 1898 Act until this particular house famine that we are now attempting to deal with, even in a small way, arose. It is probable that if they had attempted to fall back upon that Act in breach of their undertaking in more normal times that the tenant would have left the house in indignation, and landlords 8 or 10 years ago did not like to have their houses empty. When the shortage became very acute and it was clear that no tenant who was firmly established in a house would leave even though he might feel that he was labouring under a grievance there were a certain number of cases of that kind where landlords definitely went back on the undertakings which they gave the tenants and threw back on to the tenant, depending on the Local Government Act of 1898, the burden of the rate. The object of this amendment is clear; it is to alter the law so that no such transfer of burden shall count against any increase of rent which could otherwise be claimed. We agree entirely with the object, but point out that the object is achieved in the Bill and that the Amendment is, therefore, unnecessary. The object is achieved through the terms of Sec. 2, where the standard rent is defined. In Sub-section 2 of that Section it is provided that the standard rent is the actual rent in 1913 less any rates chargeable on the occupier; that is less the Poor Rate. And the word used in that Sub-section, it will be noticed, is "paid," not "payable." The importance of the fact that the word "paid" is used and not the word "payable" will be appreciated by reference to Section 8, where we find that the addition which may be made in respect of rent and rates are respectively 10 per cent. of the standard rent, and (2) the full amount of the rates which are chargeable on the tenant but are payable by the landlord.
Now, it would take a considerable time to show by general reasoning that this provision remedies the McMullan grievance. Take a specific example. A tenant who had a contract in 1913 under which he paid £60 rent and the landlord paid £5 Poor Rate, will serve as an example. There is nothing in this Bill to prevent the landlord repudiating his technically illegal contract. He can still say to the tenant the day after the Bill becomes law, "You must pay all the Poor Rate; I know that I contracted to do so, but I repudiate that contract, and the law will uphold me in that repudiation." And the law, if this Bill becomes law, will uphold him, and the tenant will have to pay the full Poor Rate, but when it comes to determining the new rent the tenant will get his own back, because the landlord's standard rent is the net 1913 rent; this is not including the £5 Poor Rate, and he cannot add the Poor Rate to it, because the Poor Rate is not payable by him within the meaning of Section 8, Sub-section 1 (b), which reads:—"An amount not exceeding the amount for the time being payable by the landlord in respect of the rates chargeable, or which but for the provisions of any Act would be chargeable on the occupier." He cannot add the Poor Rate to that, because the Poor Rate is not payable by him within the meaning of Section 8, in asmuch as he has successfully refused to pay it. The thing turns absolutely on the word payable. The result is, that when the landlord repudiates what is, in fact, his moral liability for the Poor Rate, relying on the fact that that contract is technically illegal, it comes back on him as a perfectly legal liability under this Act in the form of a diminution of the increased rent which he could otherwise claim. We contend then, and we are confident of it, that the grievance underlying the Bradshaw v. McMullen case is met absolutely and without question in the Bill, and our position is that Deputy Professor Magennis's amendment is superfluous. It is not a matter which we would be at all likely to take any risks about. That particular grievance was definitely under the consideration of the Committee and under the consideration of my Ministry, and we give a very positive assurance to the Dáil that it is amply covered.
When certain Courts, known as Sinn Fein Courts, sat in different parts of the country, a certain gentleman, very well known to the Minister and to myself, acting as judge in those Courts, gave judgment on one occasion in a case in which a father had left a farm to his two sons, and the elder took possession of the farm. It was decided that the elder brother was to divide the farm in halves and leave the younger brother the choice as to which half he would have. I imagine that there is something of the same kind of mind displayed in this matter, and very ingenious it is. I am perfectly satisfied so far as I am personally concerned — and I discussed this matter with Deputy Professor Magennis — that in the case cited by the Minister the point intended to be achieved by the amendment has been achieved by the terms of the drafting, and, as I said before, very ingenious drafting it proves to be.
The Minister is very well aware that one can never gamble with certainty — if one can ever gamble with certainty — on the possibilities of what the law may do or how the law may interpret certain provisions. I would suggest that it might be well in cases of this kind to achieve this purpose by direct specific negation of this possibility rather than to leave two or three spring traps in the way of the landlord, so that if he is not snared in one he will be snared in the other.
I was very glad to hear the lucid explanation given by the Minister of the rather subtle manner in which he has sought to achieve what Deputy Magennis's amendment also seeks to achieve. But, greatly daring, I may say that I am not quite satisfied that the Minister has altogether succeeded in attaining his object. I do agree that the amendment is out of place, and I think, out of order. The amendment proposes incidentally to a section of the Act to repeal for all purposes a section in another Act of Parliament. I think that is a clumsy and an unsatisfactory way of achieving that object.
It seems to me that if the Ministry agree that the decision complained of is wrong, they ought to take the line of putting in a special section in this Act explicitly repealing the Section of the Local Government Act of '98, upon which that objectionable decision was based. Then, no question could arise. Surely it must be plain — and I think the Minister, on reflection, will agree — that there will be cases outside this Act to which the objectionable decision will still continue to apply, and there will be also cases in which it will continue to apply between a particular landlord and a particular tenant before the Act comes into operation. If that be so — if there be cases outside the Act which the decision will continue to apply to, and if there be cases to which the decision will continue to apply until some future date, when the Act comes into operation, as between particular landlords and particular tenants — surely it is better directly to repeal this particular objectionable section, and thereby do away with all question of what the intention of the legislature was when this section comes to be canvassed in the Law Courts.
I would suggest that Section 52 of the Act of 1898 should be repealed. The Minister might be able on Report Stage to bring in some form of words in Section 8 of the Bill that would have the effect of repealing Section 52 of the former Act. If he would consider that, I would be quite agreeable, with the permission of the Dáil, to withdraw the amendment now.
It occurs to me that there may be a way of meeting this difficulty which will avoid confusion and trouble. It could be met by the landlord, in presenting his claim for rent — which is rates compounded — being obliged to divide the amount of rent from the amount of rates and intimate to the tenant that fact. I am doubtful of the wisdom of making alterations in the law, which would remove from the citizen, or tenant, the ultimate liability for rates in the city in which he lives. I am inclined to think that that is quite a good and acceptable principle, but that where, for the convenience of both landlord and tenant, the price of the house, for a given period, is to include rates, the landlord, acting in fact as the agent for the citizen in the payment of such rates, ought to make the ratepayer aware on every occasion what his rent and what his rates are. Then the danger would be avoided. I doubt the wisdom of putting in a Clause in the Bill which is going to remove liability for rates from the citizen. I am sure I will not be thanked by many people for saying this, but, it is my firm conviction that the citizen of a city and the occupier of a house in a district ought to know that he is paying rates, and that it is his money — not the landlord's money — that is going to the upkeep of the city or district in which he resides. I would not like to remove that principle from the law in respect of house-rents, by inserting in this Bill a provision which would have that effect.
May I suggest that the Deputy overlooks the practical consideration that the vast majority of tenancies in this city are based upon the assumption that rents and rates and taxes shall be payable, in the first instance, by the tenant, and that the rates and taxes will be refunded afterwards, in complete ignorance of the Statute that the Deputy objects to seeing repealed.
We have the concrete fact that to-day most of the tenancies in existence in Dublin were entered into in ignorance, or forgetfulness, of the particular section in question, and, consequently, that Section is non-existent for most people, except so far as the objectionable decision referred to has brought it into being again.
Perhaps I am speaking in ignorance. I do not know what this Section is, I am only speaking on matters that have arisen in this discussion, and it seems to me rather that there was a tendency to change the onus from the citizen to the landlord, and I want to avoid that. That is all.
I agree with Deputy Johnson that the citizens should be liable for the rates in all cases, but where a landlord contracts with the tenant that he is to pay half a certain rate, I do not think he should be allowed, while the tenant is in possession, to make him liable for all. If a landlord is satisfied when he is getting a certain rent, and when he is allowing half of the Borough rate that the tenant pays, that landlord should, in justice, be made keep his contract. I want to see that made plain in this Bill when it is going through, so as to protect the tenants against any landlord who may go back on the agreement he makes when the man enters into possession. There should be no ambiguous language used in the Bill by which the landlord can find a way out.
Mr. O'HIGGINS
In point of fact, there is not an ambiguity in the Bill. The Bill leaves it open to the landlords to fall back on the Act of 1898, but it absolutely removes all inducement for them to do so. Now, we would undertake between this and the Report Stage to reconsider the mere wording of the Bill, with a view to, if possible, making that fact more apparent to lay minds. The thing to remember is, it is not for a Minister for Home Affairs to go into a question of the incidence of rates, or to attempt in a Bill which is of its very nature temporary and emergency to alter the permanent Local Government code. That would be a matter for the Minister for Local Government to consider, and it could be dealt with in a later Act. The question of bringing out more clearly the fact that the Bradshaw v. McMullan grievance is amply met in the Bill will be considered between this and the Report Stage, and we may possibly alter the wording of the Bill to meet the case.
I am quite agreeable to that course.
Amendment, by leave, withdrawn.
I beg to move the following amendment:— In Sub-Section (8) to delete the words, "this Section shall not apply," line 33, and to substitute therefore the words, "No part of this Section other than Sub-Section (3) shall apply."
This sub-section deprives the man in a gate-lodge or any other dwelling occupied by virtue of his employment, of any protection from eviction. This amendment seeks to give him adequate protection.
Mr. O'HIGGINS
This is a paragraph governing that which gave rise to that sub-section. It is a paragraph from the report of the Committee:
"It would be impossible in the case of an Act of the scope of the Act of 1920 to provide against all exceptional cases of hardship, but every reasonable effort should be made, and it seems to us there are certain lettings of a purely casual character, or for mere temporary convenience that should be exempt from the application of the Act, or at least from the ejectment restriction. The owner who lets his house at the seaside for May and June should not be faced with the possibility of his tenant claiming to retain possession, under the Act, for July, August and September; or again, an owner of a house and garden with a gate-lodge ought not to find himself quite unable to dispose of his property because the occupant to whom he lets the lodge says J'y suis, J'y reste. The provisions in the Act of 1920 intended to meet the case have, in practice, proved inadequate, and several cases of extreme hardship have been cited to us.”
Supposing she did not know French?
Mr. O'HIGGINS
The provision as it stands says:—"This Section shall not apply to any dwelling-house let to a tenant during his continuance in any office, appointment, or employment, or for temporary convenience, or to meet a temporary necessity, either of the landlord or tenant." The amendment would provide that "no part of this Section other than Sub-section (3) shall apply." The effect of this Section, if it were carried, would be to prohibit absolutely this kind of casual letting.
I think that it is very much to the convenience both of the landlords and of the prospective tenants that there should be freedom in that matter. Yesterday I spoke of that position which exists on a large scale through the country of houses where tenants are accepted by virtue of their employment, their tenancy dependent on and contingent on their employment. I admit that there can be criticism of that system. I admit that certain employers may hold the heavy hand over an employee and may use unfair leverage for the fact that when the employment ends, the tenancy also ends. They may attempt to exploit unduly the difficulties of the tenant-employee's position. But if you insert an amendment of this kind, then, in effect, you leave no opening for this kind of casual letting, and no householder will consent to make such a casual letting. You simply bar the door against him. Under the 1920 Act you had a position where a man gained employment as a gardener or something of that kind, living in the gate lodge, and then, for one reason or another, when the employment ended, claimed the right absolutely to remain on as tenant after the termination of the considerations that gave rise to the tenancy. I submit that it is to the convenience of the prospective tenants and prospective employees that there should be a certain latitude in this matter and that the effect of that amendment would be merely to make such lettings impossible. If a person has a position by virtue of employment, there must be power to make room for a successor when a new appointment becomes necessary. The amendment would certainly necessarily mean that that system of tenancy contingent on employment would come absolutely to an end. I doubt very much if on reflection the Deputy himself would consider that a desirable thing. Certainly we do not, and we are aware of the anomalies and hardships which the 1920 Act gave rise to. This Bill has been framed on the experience of that Act, and the evidence tendered to the Committee on these anomalies and hardships.
I am surprised that the Minister cannot see his way to accept this amendment, at least in so far as it affects houses occupied by persons in the employment of the owner. I am surprised especially when I consider his speech opposing the amendment re alternative accommodation. Everything said in opposition to that amendment was said because of the existence of Courts which would decide with a reasonable amount of justice or with a general sense of justice the hardship on landlord or on tenant, and that it was quite fair to trust to the judgment of the Courts in such a matter. That argument convinced the Dáil, or a majority of the Dáil at any rate. We now ask that the same course should apply in the case of the occupant of the house which is the property of the employer. We say, "Let the Court decide whether there is to be greater hardship on the owner or upon the occupier." We say, "Leave it to the Court to decide that question." That seems to be a pretty fair deduction from the arguments used yesterday, and the Minister minimises the risk of hardship upon the tenant. There are hundreds, perhaps thousands of families in houses to-day through the country, which houses are the property of the employer of the tenant. Railway companies' houses, for instance, and houses which are owned by shopkeepers, the employees of whom are occupiers. The fact that the tenant can be removed by the will of the landlord is placing that man and his family in a position of utter helplessness. He can be evicted under the terms of the Bill as it stands, or alternatively accept any terms of employment that the employer wishes to impose on him.
There are hundreds of cases which one could cite of employers using the fact that the employee occupied a house of the employer, as a lever to compel acceptance of terms and conditions which would not otherwise be accepted. Now you are placing these people in a position of absolute dependence on the employer. When the alternative accommodation is not available, the alternative to accepting the conditions which may be imposed is to find another house somewhere, and there are no houses to be found. What we ask in this amendment is that before an eviction of that kind can take place, the Courts shall be satisfied that there is alternative accommodation. That is what is asked for in this amendment, and that the provisions of Sub-section 3 of this specific Clause should be applicable. That seems to me to be quite a reasonable proposition. The amendment might be accepted by the Minister if it were made to apply to dwelling houses let to a tenant during his continuance in any office, appointment or employment, and the Section may stand with respect to houses let for temporary convenience or to meet a temporary necessity, that is to say, to meet summer lettings. We have no desire to bring that into the provisions of this amendment, but in the other case I think the Minister ought be convinced that the hardships may be heavy on tenants who are absolutely dependent on their employers for house room, and to leave it to the operations of Sub-section 3 before they can be evicted. I would press the Minister to reconsider his attitude on this amendment.
Mr. O'HIGGINS
This amendment in substance amounts to an alienation of property. It is asking really that a tenancy acquired and initiated on very definite conditions should now become something quite different, and that a casual letting contingent upon employment should be converted into fixity of tenure as long as the rent was paid. We have to consider the hardships and anomalies that such a provision would give rise to. Take this as a convenient example — this gate lodge position. A man is engaged as a gardener. He gets the casual letting, the temporary and contingent letting of the gate lodge. Six or eight months or a year later he sees the prospect of better employment, higher wages down the road, and he goes. He continues to live in the gate lodge and refuses to leave.
The Court would settle that.
Mr. O'HIGGINS
It is proposed to make a matter for the Court the clear exercise of the house-owner's rights, to subject that as if it were something that lay in question. But it is not and it ought not to be, deemed a matter that can be called in question before a Court. It is a matter of undoubted right. It is a matter of definite undertaking that a man securing employment and getting as a perquisite, or condition, of that employment, temporary residence, that temporary residence should end when the employment ends. It is not proposed to make that a matter for the Court to say the last word upon, and it is not proposed to enable anyone to call that clear possession of right into question before any tribunal. Now, at the risk of monotony, let me say that these matters were very thoroughly gone into before a Committee on which the conflicting interests were very fairly represented. We thought it wise to base the Bill very strictly and very closely on the recommendations of that Committee. We did not think it either wise or safe to venture far from the recommendations of that Committee, and we have adhered to these recommendations even in respect of certain matters where our own inclinations would lie otherwise.
The Deputy speaks of thousands of cases throughout the country where you have this position of employees living in the houses of their employers. I admit that cases of that kind are numerous but we cannot agree to be put in the position of saying that a tenancy acquired very definitely as the result of employment, and by virtue of that employment shall continue beyond the expiration of that employment, or that the question as to whether it should or not, should be left as a matter for a tribunal to decide, or that the unreasonable odium in many cases, but, nevertheless the undoubted odium, should be put on the Court of saying that such tenancies should expire. It is a matter of agreement, of fair contract, and it will be bad if you take a step that would result in making these casual lettings impossible and making it necessary for the house-owner to tie up, in the strictest way, a person going into his house as a condition, or by virtue, of employment. I cannot accept the amendment. These representations were made to the Committee, and the Committee did not think it fit to pass on to the Ministry such recommendations.
I agree with the Minister when he says that he followed out the recommendations of the Committee very closely. Yesterday evening, when the Dáil was discussing Deputy Johnson's amendments to Sub-section 1(d), I was absent but I support the present amendment before the Dáil, because I think that the clause regarding the greater hardship covers Sub-section (a). I would like to explain my view of the recommendations of the Committee. We had before us certain cases, as the Minister has mentioned, of gate lodges, and cases where houses had been let temporarily just prior to the Act coming into force, where tenants took advantage of the Act to remain on for years afterwards. It was on that account that we decided that alternative accommodation should be a condition, and that the question whether the greater hardship lay on the tenant or owner should be considered. I intended yesterday to press for Deputy Johnson's amendment for alternative accommodation on the ground that Sub-section 8, which the Minister has moved, covers all the reasons the Committee had for putting in the Clause with regard to greater hardship. Personally, if the “alternative accommodation” amendment had been accepted, I would be quite willing to support Sub-section 8, simply because I considered myself compelled to do so, as it would comply with that recommendation of the Committee but with that term “greater hardship” included in Sub-section 1 (b) I think there is no necessity for Sub-section 8. Therefore, I support the amendment, and at the same time, I will ask the Minister to consider the question of alternative accommodation on the lines of Deputy Johnson's amendment yesterday evening, being included in the Fourth Reading of the Bill. Except for these points, I think the Bill follows very closely the recommendations laid down by the Committee.
May I just say that there have been many cases which will be affected by this section as it stands and I think the Minister will be interested to know that during the time when he was acting in another capacity, when the strike against carrying munitions was operating, many railwaymen, occupants of railway companies' cottages, were served with notice of eviction. Now it may be reasonable to say that these men ceased their connection with the Company voluntarily and, therefore, that they should be evicted from their houses. That may be the view of the Minister but it is not only in time of strike that Railway Companies serve notice upon their tenants. A case in point is provided where a man in Co. Dublin has been arrested on suspicion and the Railway Company has no reason to believe that he is guilty, and have no reason for dismissing him, but they seem to have obtained possession of his house. Under this Bill, if it passes, even though the man proves absolutely his innocence of any offence of any kind against either the Company or the State, if any member of the Company's staff has a grudge against the man, he can put in a claim for the house, and there can be changes and changes of that kind. More apposite cases could, however, be quoted where shop assistants and shop managers were brought from one part of the country to another years ago, long before the war, and rented a house from the employer, perhaps a mile away from the place of business.
It may be well contended under this section that that is a part of the condition of employment, that it is incidental to the employment. You are letting the employer of that man use the fact that he resides in one of his houses as a means of — shall I say — coercion, compelling him to accept certain conditions under the penalty of eviction. I am surprised at the position taken by the Minister in this, because the whole Act is an interference with the rights of the owner of the house, and why that distinction should be drawn between a house that is owned by the employer of a man, and another house owned by another man, passes my understanding. There may be cases where special hardship would be imposed on the owner of the house, if you retain the rights of the tenant under all circumstances to remain in that house, but we are asking you to use that machinery which you, yourselves, have provided for the Court to say whether it is a reasonable case. We are not asking in this case to provide alternative accommodation. We are asking that the Courts should also have power to act in those cases, and in the case of tenancies where the dwelling house is the property of the employer.
I would like to enlarge on the subject just dealt with by Deputy Johnson. The Minister appears to take the view that the houses, in which certain classes of people live, are houses that are given because the occupiers are employed by a company or an individual, and that the house is charged at such rate so that it may be taken as part of the emoluments of the individual employee. Now, take the case of a Stationmaster. The house in the case of a Stationmaster is provided by the Company at the station, in order that he may be convenient to the station premises, so as to make this individual, at all times available in the interests of the Company, especially for the protection of the Company's property. There was a time when houses were provided for Stationmasters, and the arguments used by the Minister might be taken as correct. The house was provided, and the nominal rent was charged. Under the new condition of service the Stationmaster is charged what is to be considered the proper rent according to the classification of the station. I fail to see why provision should be made in a case of this kind to deprive the individual of his house, especially in such a case as Deputy Johnson refers to. I know the particular case he refers to, and another where one individual Stationmaster is in prison, and where the Company seeks to put him out of his house, although he has not been tried or found guilty on any particular charge. Until the Company can prove him guilty of some charge they cannot determine his employment, and have no right to deprive him of his house. There is another case where an individual was charged with a certain offence brought into the Courts, and where the case was remanded to the City Commission. Between the time of trial at the Police Courts and trial at the Commission the Company sought to put this man out of his house, although it had not been proved that he was guilty of the charge on which he was arrested. Cases of this kind should be brought into account in the Bill, and the Bill should be made to prevent people from being ejected so far as the Company is concerned.
Mr. O'HIGGINS
Deputy Johnson, when he finds himself weak on general principles, is never at a loss for specific cases, and as he has a monopoly of knowledge with regard to specific cases, he can present them in a way eminently calculated to support the contention he happens to be pressing at the time. I prefer to deal with the general principles, and not to be drawn into specific cases. If I wished to deal with specific cases, I could point to cottages of the General Prisons Board, occupied by men, by virtue of their positions as warders. I could point to cottages built by the Tramway Company, and so on and I could elaborate the hardship to the employer whether individual or company, if people claim the right to remain on in those dwellings as long as they pay rent, and after they will have gone elsewhere to some more remunerative employment. Further, Deputy Nagle thinks that we are not adhering to the Report. Paragraph 14 of the Report deals expressly with this case. It would be impossible in the case of the scope of the Act of 1920 to provide against all exceptional cases of hardship, but every reasonable effort should be made, and it seems there are certain lettings of a purely casual character that should be exempt from the application of this Act, or at least from its restrictions. The owner of a house at the seaside who lets it for a month or two to a tenant, should not be faced with the possibility of having that tenant for a longer period; or again, the owner of a house and garden, with gate lodge, ought not to find himself quite unable to dispose of his property because the occupant to whom he let the lodge says j'y suis, j'y reste. Deputy Johnson says that the whole Act is an interference. I admit that, but I do not agree with him when he says “You have scratched these people; you have drawn blood; why not cut through the jugular vein and make an end of it.” He may think that that is a splendid argument: “You have encroached to a certain degree on strict property rights; finish the job.” In fact, we do not find any temptation at all along those lines. We rather regret that a particular emergency, a particular disease in the social system, has necessitated such an interference with individual rights. We do admit it has necessitated it, but we are not prepared to go any further than our own conception of what the emergency demands, and so, because we have drawn blood, we will not cut a jugular vein.
You give protection to one section of the public while you remove protection from another section — those who happen to live in their employers' houses.
Mr. O'HIGGINS
There is a fallacy underlying that. They went into those houses on a very definite understanding that they would occupy those houses as long as their employment lasted.
May I point out that the Clause does not say anything of the kind. The Clause is not confined to those who went into their employers' houses on a very definite understanding. It says that it "shall not apply to any dwelling house let to a tenant during his continuance in any office, appointment or employment."
Mr. O'HIGGINS
"Or to meet a temporary necessity either of the landlord or the tenant." I am afraid, A Chinn Chomhairle, there is no prospect of mental contact or agreement on the lines of this Amendment, and I can offer no compromise that I think would meet the views of the Deputies who are promoting this amendment.
In the country towns there are a large number of employers who always try to procure a certain number of houses in the vicinity of their firms so as to have their employees within a convenient distance and so that they will be in time in the mornings. If a dispute took place in one of these firms and the landlord happened to be looking out for other employees from a different part of the country, would he, under this Section, be allowed to evict the tenants?
Of course, he would. That is the intention.
Furthermore, in the case of labourers' cottages owned by District Councils, a large number of tenants of these cottages work on the roads. They may be employed for 20 years, and they may be living in those cottages for that period. When they are no longer of use to the District Council are these men liable to be evicted from the labourers' cottages, although they have paid for them in rent.
On a point of order, is not the Deputy discussing Sub-section 6 of Section 3? This Sub-section says that the Act shall not apply to any dwellinghouse provided by a Local Authority under the Labourers (Ireland) Acts, 1883 to 1919, or under the Housing of the Working Classes (Ireland) Acts, 1890 to 1921.
The second case cited by Deputy Lyons does not come under Sub-section 8, but the first one does.
I know a number of landlords throughout the country who have a large amount of house property. Their employees live in their houses, and those employees are working for them and living in those houses for 25 or 30 years. These employees come to be regarded as a piece of machinery, and in old age are thrown on the scrap heap. Is the employer to be allowed not alone to throw them on the scrap heap but to evict them? I think that is rather unjust, and I would ask the Minister to reconsider this matter before allowing this Clause to go through. I may say that I am not in favour of the Bill, but I would like to make a bad Clause as good as I can.
May I draw the attention of Deputy Lyons to one class of case which he does not consider. That is the case referred to in the last sentence read out by the Minister from Section 14 of the Departmental Committee's Report — the owner of a house and garden with a gate lodge. The tenancy of the gate lodge man is, according to Section 8, during his "continuance in the office, appointment or employment." The owner wishes to sell the property and, as Deputy Lyons, perhaps, forgets, he has to give clear possession to the buyer. He cannot give clear possession if there is an irremovable tenant in the gate lodge. In the case of a house, with stable and loft attached, the stable and loft may be sub-let to a cabman who employs it not only to shelter his horse and cab but also to shelter himself. If the owner wishes to dispose of the property, he must first determine the tenancy of the cabman. Otherwise he cannot deliver up clear possession, and unless he can give clear possession he cannot sell. After all, if we are here to weep over the hardships of suffering humanity, we ought to have some tears to spare for the owners of property as well as for their victims.
May I just draw attention to the terms of this amendment, which says nothing about the gate lodges or stables. The minds of Deputies seem to be fixed upon these exceptional cases. The Minister says, "We have called attention to exceptional cases." True, but there are very many more classes of people affected by this Section than residents in gate lodges. I would be quite prepared to leave them to the Section as it stands, but remember what the amendment proposes to do. All it proposes to do is to say "that a dwelling-house let to a tenant during his continuance in any office, appointment or employment" shall come under the provision of Sub-section 3, which merely says "the Judge shall have power to adjourn the application or to stay or suspend the execution of any such order or judgment or postpone the date of possession for such period or periods as he thinks fit, and subject to such conditions in regard to payment of arrears," and so on, "as the Court may think fit. He may then discharge or rescind any such order or judgment." It is throwing the whole onus of deciding this case upon the Court, and that is the very argument that was used here last night.
I am surprised at the Minister when he states that he cannot think of any suggestion that would afford a compromise under this particular Clause. There is something more behind this Clause than what the ordinary eye can see. I say frankly that it makes provision for dealing with people who may go on strike. In the case of a railway company's houses or any other company's houses it gives the power to evict during a dispute. Further, according to my reading of the Bill, it makes provision for blacklegs who may be brought in to take the place of the men on strike, and go into the houses, although the workers' services may not have expired with the company with whom the dispute is going on. That is my reading of the Clause.
Mr. O'HIGGINS
I am amused and not in the least impressed at Deputy Davin's attempt to lash himself into a fury over this Sub-section. I cannot offer any compromise that would meet the views of the Deputy.
Amendment put.
The Dáil divided: Tá, 14; Níl, 35.
Tá
- Tomás de Nógla.
- Riobárd Ó Deaghaidh.
- Liam de Róiste.
- Tomás Mac Eoin.
- Ailfrid Ó Broin.
- Tomás Ó Conaill.
- Aodh Ó Cúlacháin.
- Séamus Eabhróid.
- Liam Ó Daimhín.
- Seán Ó Laidhin.
- Cathal Ó Seanáin.
- Domhnall Ó Muirgheasa.
- Risteárd Mac Fheorais.
- Domhnall Ó Ceallacháin.
Níl
- Donchadh Ó Guaire.
- Uáitear Mac Cumhaill.
- Seán Ó Duinnín.
- Domhnall Ó Mocháin.
- Séamus Breathnach.
- Pádraigh Mag Ualghairg.
- Deashumhain Mac Gearailt.
- Seán Ó Ruanaidh.
- Mícheál de Duram.
- Seán Mac Garaidh.
- Pilib Mac Cosgair.
- Mícheál de Stáineas.
- Domhnall Mac Cárthaigh.
- Eoin Mac Néill.
- Liam Mag Aonghusa.
- Pádraig Ó hÓgáin.
- Pádraic Ó Máille.
- Seosamh Ó Faoileacháin.
- Seoirse Mac Niocaill.
- Fionán Ó Loingsigh.
- Séamus Ó Cruadhlaoich.
- Criostóir Ó Broin.
- Caoimhghin Ó hUigin.
- Próinsias Bulfin.
- Séamus Ó Dóláin.
- Próinsias Mag Aonghusa.
- Eamon Ó Dúgáin.
- Peadar Ó hAodha.
- Séumas Ó Murchadha.
- Seosamh Mac Giolla Bhrighde.
- Liam Mac Sioghaird.
- Alsadair Mac Cába.
- Earnán de Blaghd.
- Uinseann de Faoite.
- Mícheál Ó Dubhghaill.
Amendment declared lost.
Question: "That Section 4 stand part of the Bill," put and agreed to.
SECTION 5.
No distress for the rent of any dwelling-house to which this Act applies shall be levied except with the leave of the Court, and the Court shall, with respect to any application for such leave, have the same or similar powers with respect to adjournment, stay, suspension, postponement and otherwise as are conferred by this Act in relation to applications for the recovery of possession.
Mr. O'HIGGINS
Question: "That Section 5 stand part of the Bill," put and agreed to.
SECTION 6.
(1) A tenant who by virtue of the provisions of this Act retains possession of any dwelling-house to which this Act applies shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy, so far as the same are consistent with the provisions of this Act, and shall be entitled to give up possession of the dwelling-house only on giving such notice as would have been required under the original contract of tenancy, or, if no notice would have been so required, on giving not less than three months' notice:
Provided that, notwithstanding anything in the contract of tenancy, a landlord shall not, for the purpose of exercising any right under this Act or any right exercisable on or after the expiration of this Act, be required to give any notice to quit to a tenant retaining possession by virtue of the provisions of this Act.
(2) Any tenant retaining possession as aforesaid shall not as a condition of giving up possession ask or receive the payment of any sum, or the giving of any other consideration, by any person other than the landlord, and any person acting in contravention of this provision shall be liable on summary conviction to a fine not exceeding one hundred pounds, and the Court by which he was convicted may order any such payment or the value of any such consideration to be paid to the person by whom the same was made or given, but any such order shall be in lieu of any other method of recovery prescribed by this Act.
(3) Where the interest of the tenant of a dwelling-house to which this Act applies is determined, either as the result of an order or judgment for possession or ejectment, or for any other reason, any sub-tenant to whom the premises or any part thereof have been lawfully sub-let shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms, but as tenant retaining possession by virtue of the provisions of this Act, as he would have held from the tenant if the tenancy had continued.
(4) It shall be deemed to be a condition of the tenancy of a tenant who by virtue of the provisions of this Act retains possession of any dwelling-house to which this Act applies that the tenant shall afford to the landlord access thereto for the purpose of viewing the condition and state of repair of the dwelling-house, and shall afford all reasonable facilities for executing therein any repairs which the landlord is entitled to execute.
(b) that the tenant will not assign the dwelling-house or any part thereof without the consent in writing of the landlord;
(c) that the landlord shall be responsible for any repairs for which the tenant is under no express liability or liability implied under Section 42 of the Landlord and Tenant Law Amendment Act (Ireland), 1860.
I beg to move the following amendment:—
In Sub-section (1) to delete the words "or any right exercisable on or after the expiration of this Act," lines 60 and 61, and to add at the end of the Sub-section the words "and shall be entitled to recover possession of the dwelling house only on giving such notice as would have been required under the original contract of tenancy, or, if no notice would have been so required, on giving not less than three months' notice."
The object of this is to place the landlord and the tenant on equal terms. I am sure the Minister will applaud that desirable intention. As I read the Bill, at the expiration of the Act the tenant may be bound to give three months or such other length of notice as the contract of tenancy will require, but the landlord shall not be in such bond. Notwithstanding anything in the contract of tenancy, he shall not be required to give any notice to quit: he may enter into occupation at once. If I have not understood correctly the meaning of the Bill, I would like to be corrected, but it appears to be unfair that, on the expiration of the operation of the Act, the tenant automatically could be evicted without notice.
at this stage took the Chair.
The tenant automatically could be evicted without notice, whereas he may not leave the house without giving the prescribed notice to the landlord. If that is not correct, I am sure the Minister will put me right; and if it is correct, perhaps he will try to justify it.
Mr. O'HIGGINS
Deputy Johnson is half right. The position is that there are really two tenancies. There is the contractual tenancy, which is assumed to expire and to be artificially prolonged by the statutory tenancy which this Act establishes. What Deputy Johnson's amendment amounts to, in effect, is to ask that the statutory tenancy should not expire with the Statute which gave rise to it, but that it should have the life of three months beyond the lifetime of the Act which establishes it. We have to remember that that is the effect of the amendment, to prolong control after the Act expires. Personally, I am not satisfied there is sufficient reason for doing that. It is a concession to the tenant that he has been allowed to remain in possession after the expiration of his contractual tenancy, and that that contractual tenancy has been artificially prolonged by the statutory tenancy provided for in this Act. As the Bill stands, when the Statute expires the statutory tenancy will expire with it, as we think it should. The contractual tenancy will have expired long since, and there seems no sufficient reason why the tenant should be given any further special rights. We take it this Bill has a lifetime of three years. Presumably, if the Parliament of the day considers that the conditions are still such as to require control, the Bill will be renewed and prolonged. There seems no reason for saying that after the necessity for control and after the Act providing for control expires, that there should be still a period, even a period of two or three months, in which the effects of the Act are allowed to continue to run.
Amendment put.
The Dáil divided: Tá, 13; Níl, 35.
Tá
- Tomás de Nógla.
- Riobárd Ó Deaghaidh.
- Liam de Róiste.
- Tomás Mac Eoin.
- Ailfrid Ó Broin.
- Tomás Ó Conaill.
- Aodh Ó Cúlacháin.
- Liam Ó Daimhín.
- Seán Ó Laidhin.
- Cathal Ó Seanáin.
- Domhnall Ó Muirgheasa.
- Risteárd Mac Fheorais.
- Domhnall Ó Ceallacháin.
Níl
- Liam T. Mac Cosgair.
- Donchadh Ó Guaire.
- Uáitear Mac Cumhaill.
- Seán Ó Duinnín.
- Domhnall Ó Mocháin.
- Séamus Breathnach.
- Pádraigh Mag Ualghairg.
- Darghal Figes.
- Seán Ó Ruanaidh.
- Mícheál de Duram.
- Seán Mac Garaidh.
- Pilib Mac Cosgair.
- Mícheál de Stáineas.
- Domhnall Mac Cárthaigh.
- Eoin Mac Néill.
- Liam Mag Aonghusa.
- Seosamh Ó Faoileacháin.
- Seoirse Mac Niocaill.
- Piaras Béaslaí.
- Fionán Ó Loingsigh.
- Séamus Ó Cruadhlaoich.
- Criostóir Ó Broin.
- Caoimhghin Ó hUigin.
- Próinsias Bulfin.
- Séamus Ó Dóláin.
- Próinsias Mag Aonghusa.
- Eamon Ó Dúgáin.
- Peadar Ó hAodha.
- Séumas Ó Murchadha.
- Seosamh Mac Giolla Bhrighde.
- Liam Mac Sioghaird.
- Alsadair Mac Cába.
- Earnán de Blaghd.
- Uinseann de Faoite.
- Mícheál Ó Dubhghaill.
Amendment declared lost.
Question: "That Section 6 stand part of the Bill," put and agreed to.
SECTION 7.
(1) The rent to be paid by the tenant who by virtue of the provisions of this Act retains possession of any dwelling-house to which this Act applies shall be determined as follows:—(a) The landlord and such tenant may by agreement determine the rent to be paid by such tenant for the time being under this Act, and in such case, and subject to the provisions of this Act, the rent so determined shall, until varied by new agreement or by notice under this section be and continue to be the rent to be paid in respect of such dwelling-house.
(b) If at any time the rent to be paid by such tenant does not exceed the standard rent, or exceeds the standard rent by less than the amount permitted by this Act, the landlord notwithstanding any temporary agreement under this sub-section may serve upon such tenant a notice increasing such rent to an amount not exceeding the standard rent by more than the amount permitted under this Act, and in such case, and subject to the provisions of this Act, such increased rent shall, until varied by agreement or by any subsequent notice under this section, be and continue to be the rent to be paid in respect of such dwelling-house.
(c) If at any time the tenant is entitled to claim a reduction of an increased rent he may, notwithstanding any temporary agreement under this sub-section, serve upon the landlord a notice reducing such increased rent to the limit prescribed by this Act, and in such case, and subject to the provisions of this Act, the increased rent so reduced shall until varied by agreement or by any subsequent notice under this section, be and continue to be the rent to be paid in respect of such dwelling-house.
(d) Where the rent to be paid by such tenant has not been determined under any of the foregoing paragraphs of this subsection, the rent payable by the tenant in respect of such dwelling-house immediately prior to the commencement of this Act, or if such tenant has since the commencement of this Act held under any lease, agreement, or other contract of tenancy, then the last rent payable by him under any such lease, agreement, or other contract of tenancy shall, subject to the provisions of this section, be and continue to be the rent to be paid in respect of such dwelling-house.
(2) Every notice served under this section shall be in the appropriate form contained in the Schedule to this Act, or in a form substantially to the same effect, provided that no such notice shall take effect until or in respect of any period prior to the expiry of one clear week from the date of service, and provided that a notice to be served by the landlord may be served by the landlord on a tenant during the currency of his tenancy if at the date at which such notice is expressed to take effect the landlord would but for this Act be entitled to obtain possession.
(3) If a notice served under paragraph(b) of sub-section 1 of this section contains any statement or representation which is false or misleading in any material respect, the landlord shall be liable on summary conviction to a fine not exceeding ten pounds, unless he proves that the statement was made innocently and without intent to deceive.
I beg to move the following amendment to Sub-section (1) (b):“To insert after the word `landlord,' in line 44, the words `subject to,' and delete the word `notwithstanding.' ” This deals with agreements between landlords and tenants as to the amount of the limits fixed by the Act. Section (b) permits the landlords at any time to break agreements and raise the rent to the full maximum. The amendment provides that if a landlord makes an agreement he shall keep it.
Mr. O'HIGGINS
I cannot understand this amendment, except on the basis of Deputy Davin sitting at a table and deciding that wherever the landlord was given the right it was a safe thing to strike it out and move an amendment accordingly.
Mr. O'HIGGINS
It may be wrong, but it is the only explanation that suggests itself to me for the amendment. This section should be read with the following one, where a corresponding right is given to the tenant, and (b) and (c) stand or fall together. There is no reason why the landlord should not be in a position to secure the full rent allowed within the limits of this Bill. This section merely provides for that, as sub-section (c) provides that a tenant may apply for reduction. They are reciprocal rights, but the proposal before us amounts to striking out one and leaving in the other. Section 7 was rendered necessary by the peculiar provision in the Act of 1920 that a landlord could not agree with an incoming tenant as to rent without formally serving notice to quit. The effect of Section 7 is to remove this anomaly by making it possible to have agreements, and the Bill provides that that agreement can be modified in accordance with the general idea of the Bill. It is a perfectly fair provision, and opposition to it can only be explained by some peculiar idea that one man was not as good as another, and if one happens to own a house and another wants to occupy it, that ownership of a house places a man in a position of inequality or inferiority.
It depends on the mentality of the man.
Mr. O'HIGGINS
That is too subtle for me. I deal with plain, blunt facts. As I read them, (b) and (c) are interlocked, and the Deputy wants to strike out one right by leaving in another which is in essence reciprocal.
If the Minister deals with plain, blunt facts, I wish he would draft the Bill in plain, simple language, as then perhaps we would not get involved in any difficulties. Section 7, so far as the plain, blunt man can understand it, determines the rent to be paid by tenants, and says that within the limits of the Act the landlord and tenant may agree on a rent which is less than the standard rent. It is very unlikely, of course, but they may agree that a house for which the standard rent is £50 may be let at £45, but if at any time, according to sub-section (b), the landlord takes it into his head that the agreement no longer operates, all he has to do is to give notice and say that the rent henceforward shall be sixty pounds. Sub-section (c) is a different matter altogether. The tenant's right in that is only a claim for reduction when there has been, say, a change in the rates and when the landlord is charging more than he is entitled to. The tenant then has to prove that he is entitled to a reduction. (c) and (d) deal with provisions in the Bill, whereas (b) touches the agreements come to in regard to payments of something less than standard rent, and the landlord is free to break the agreement. That is what the Minister asks us to agree to. If the Bill means what a blunt man reads into it, I would like the Minister to explain, and if not I would like to know if he means anything else.
Mr. O'HIGGINS
I will endeavour to meet the Deputy's wishes. The Bill provides in (a) of Section 7, Sub-Section (1), that “The landlord and tenant may by agreement determine the rent to be paid by the tenant for the time being under this Act, and in such case and subject to the provisions of the Act the rent so determined shall, until varied by new agreements or by notice under this section, be and continue to be the rent to be paid in respect of such dwelling-house.” That is plain and blunt enough for anyone. It provides that the landlord and tenant may come to an agreement. It does not say what the agreement is to be. It does not even exclude insanity on the part of the tenant agreeing to pay a rent in excess of the terms of this Bill, any more than it excludes the conception of the landlord agreeing to take less. It simply says that an agreement may be arrived at, but it goes on to provide in (b)“If at any time the rent to be paid by such tenant does not exceed the standard rent or exceeds the standard rent by less than the amount permitted by this Act, the landlord, notwithstanding any temporary agreement under this sub-section, may serve upon such tenant a notice increasing such rent not exceeding the standard rent by more than the amount permitted under this Act.” The net result of (a), (b), and (c) is this, that agreement may be arrived at by which either party agrees to accept the terms, either more or less than what he is entitled to by the provisions of the Bill, but there is liberty to both parties by notice to claim their full statutory rights. You say that in (b) the landlord may give notice that he intends to stand on the Statute and to claim all that the Statute gives him, and you say in (c) that if the tenant decides to claim a reduction under the Statute, notwithstanding any agreement previously come to with the landlord, that is open to him also. It is not, as Deputy Johnson says, a case of the appeal in one case only. It simply does not, as the 1920 Act did, preclude the idea of agreement or arrangement except after a notice to quit. It makes it possible for such agreement to be come to, and it makes it possible for the other party to terminate that agreement by notice, and to say whether he intends to stand by the Act. There is no unfairness or inequality there, but there would be if the Deputy succeeded in carrying his amendment, which I can only understand on the basis that he sat down to strike out the rights of the party he had the least sympathy with, considering that it was a safe rudder and compass when wading through this Bill.
Am I to understand that a tenant cannot have protection of the Act unless he gives notice that he is going to claim protection of the Act? Are we to take it that when there has been agreement to pay certain rent for a house, which the tenant finds is above what the landlord is allowed to charge, that a tenant is not protected because he has not the insight, knowledge, and ability to go through the processes of law and to give notice that he is going to call for the protection of the Act? Is that the case? Are you throwing all the onus on the tenant to plead the Act for his protection, and to give notice that on and after a certain date he will not pay more than the Act requires?
Perhaps the Minister would explain whether this applies to all tenants — tenants who have been tenants before 1914—or does it apply only to tenants going into possession today or when the Act becomes law? Section 2 fixes the standard rent. Section 7 determines the rent. Is this to be considered fair rent? If the tenant and landlord are in dispute at the moment, the tenant may say his rent is not a fair rent. Does this Act prevent them going into Court to fix it there?
AN LEAS-CEANN COMHAIRLE
You cannot discuss the whole Bill.
There is an ambiguity in the whole Act, and we have got to get it cleared up line by line as we proceed. I quite accept the Minister's statement with regard to (a), (b), and (c), taken together, but there is something after all in Deputy Davin's amendment. We all know fairly well that the landlord who possesses a considerable amount of property has his work done by some solicitor or solicitor's agent, in either case of which the Act of Parliament is under his nose. The tenant comes along, and we know the conditions under which the tenant hitherto or at the moment goes into possession. He finds 150 other applicants before him for that house. He may have to move to some other part of the country to undertake his ordinary day's work. He is forced to live, at all events, in that particular place, and as his family is in some other place, consequently there is a hardship on him to get a home at the earliest opportunity. He approaches the landlord, and finds various applicants before him for this house. After some time the landlord yields. The landlord is cognisant of this Act. He approaches his solicitor, who is conversant with every line of it. We know that tenants have not this Bill or any other Bill in their pockets, and they are not going to produce this Bill and ask the landlord——
AN LEAS-CEANN COMHAIRLE
You cannot continue the discussion; you must speak on the amendment before the Dáil.
I maintain that the landlord who has the solicitor or some other agent conversant with the Act has the better portion of the bargain, and that consequently this Sub-section (b) should be deleted altogether. As the tenant is not conversant with the Act of Parliament, he is taken at a disadvantage, and if the landlord there and then enters into an agreement with the tenant while he is conversant with the Act of Parliament, any agreement entered into by the landlord should be compelled to stand over.
Deputies seem all to forget, and therefore have to be reminded, as to what the purpose of this Act is.
Not to protect the tenant; it is to protect certain tenants. That was a misleading generalisation. It is to protect certain tenants, statutory tenants — to wit, tenants whose tenancy under lease or under contract of tenancy would have come to an end, and the tenant would have to leave the house but for the provisions of this Act, and by virtue of the provisions of this Act is allowed to continue on in the tenancy. The first thing to bear in mind is that the tenant we are dealing with now is one who is a tenant by virtue of the provisions of this Act. Under the Acts between 1915 and 1920 that were passed in the Westminster Legislature with a view to making the tenants in some such wise as this, the difficulty arose, as the Minister has explained, that the ritual or ceremonial had to be gone through on serving notice, which everyone knows was not a notice or was not to take effect. All this is explained in the Departmental Committee's report. Now the purpose of Section 7 is to allow agreements between tenant and landlord, "the rent to be paid by the tenant, who by virtue of the provisions of this Act retains possession"—I beg the attention of Deputy Hennessy now to this —"of any dwelling-house to which this Act applies shall be determined as follows: —(a) The landlord and such tenant may be agreement determine the rent to be paid by such tenant for the time being under this Act, and in such case and subject to the provisions of this Act, the rent so determined shall, until varied by new agreement or by notice under this section, be and continue to be the rent to be paid in respect of such dwelling-house.”
Now, members of all Parliaments, I believe, do not read the Schedules to the Bills. I remember having a case submitted to me under one of the Land Acts, when the solicitor saw that the first thing I did was to read the forms of notice. He was quite amazed. He did not see that the forms of notice threw a very great illumination upon the text of the Acts. Now, I turn to the most valuable form set out in the Schedule, and I think it would relieve the mind of Deputy Hennessy if he were to read Forms 1 and 3. Form 1 is the notice by a landlord of increase of rent. That is the mode in which Sub-section (b), Section 1 (a) will operate.
I think the Deputy will damn his own cause.
I am proceeding to damn my own cause with my own eyes open, and, according to theologians, that is the only effectual way in which anyone can be damned. Form 1 is a form of notice which the landlord is obliged to serve when he happens to increase the rent. A study of it will show the operation of Section 8. I do not like to suggest that Deputies, speaking to an an amendment, are discussing one section without having read the remainder. That is the great benefit of having a united scheme — all the parts of it hang together with wonderful agreement. The items set out in Form 1 belong also to Section 8 of the Bill. Form 3 will be found interesting; that is the notice that the tenant has to serve on the landlord for a reduction of increased rent, and that form throws a light, I suggest, on (c), Sub-section (1), of Section 7, which reads: “If at any time the tenant is entitled to claim a reduction of an increased rent he may, notwithstanding any temporary agreement under this sub-section, serve upon the landlord a notice,” etc. Now, what these notices are for and why the variation in the agreed terms is to be permitted is, I think, understood by reading Section 8.
On a point of explanation, might I say that my point is that the ordinary tenant is not conversant with the Act of Parliament; very few of them read it.
No doubt the ordinary tenant does not. There is a fiction that everybody knows the law. That is a valuable fiction, though it sounds ludicrous, like many other fictions of the law. If the law is the bulwark of personal liberty, and if every man can plead ignorance and escape the liability he has incurred, we should soon have social chaos in the country. Why is the landlord supposed to know? This is really what happens. The landlord is trying to get as much as he can from the tenant, and the tenant is trying to escape as much as he can. This is generally the attitude: A and B bargain, particularly about rents. A, the landlord, puts on a higher rent, and Deputy Hennessy asks us to imagine the tenant in such a desperate need for a roof to cover his family's head that he agrees to the higher rent. Now he has time to discover the wrong he has done himself. Under paragraph (c) of Section 7 he can serve notice in Form 3 to ask the Court to have the rent varied. Very good. That is a splendid thing, Deputy Hennessy would think, if the tenant can be saved from his own folly and reckless haste in entering into the bargain. Yes; but what is sauce for the goose is sauce also for the gander. Under these circumstances it is a noble and a splendid thing for the tenant, who is a human being. But let us look at the case of the human being who owns the house. For a variety of circumstances let us say that the man who holds the house holds on after the expiry of the lease, and it is arranged that the lower rent he had been paying is to continue to go on as the rent.
Now, under one of the later provisions of the Act the sanitary authorities step in, or a development of ill-health in the family arises, and repairs are called upon to be made and must be made, and the landlord is out of pocket, and he discovers that the contract is not paying. Now, is he permitted to have recourse to the courts to have the bargain set right, as it affects him injuriously? Is not that equity? That is the effect of paragraph (b), which reads: “If at any time the rent to be paid by such tenant does not exceed the standard rent, or exceeds the standard rent by less than the amount permitted by this Act.” The landlord, if he can show good cause, is to be permitted to increase the rent up to an amount permitted by the Act. What the amount is to be you discover on reading Section 8. We are going to destroy Section 8 by anticipation if we carry out the behest of Deputy Hennessy and eliminate Section (b) altogether, and then you will have to change the title of the Act, which will certainly not be a Rent Restriction Act.
I did not ask to have it eliminated, but I maintain that in any agreement entered into by landlord and tenant, both parties should absolutely stand for it.
I was led to understand that the meaning of this section, from the speech of the Minister, would be as follows:— That the landlord and the tenant might agree upon a rental of any sum whatever.
No, that is not the Minister's definition. I think that was the intention subject to the provisions of this Act. Now I find they could agree to any sum whatever, and that until it comes to a threat of eviction or volition of the tenant, who may serve notice that he will not pay a rental over and above the rent allowed by the Act. I think that is the meaning of the Minister's last speech. The landlord and the tenant are to be free to make an agreement, but then "subject to the provisions of the Act." The tenant can secure a reduction, and if that is the meaning, and if the Minister is right in his interpretation of the Bill, then the Bill is a very bad one, and worse than the existing law. It may be quite right to say that the tenant can take advantage of the Act, but the purpose of the Act in the beginning was to protect the tenant from the landlord who is going to take advantage of the tenant who may not only be ignorant, but may be in an unprotected state. Now the Minister tells us that they can make an agreement, but that if the tenant, after having made the agreement, seeks to take advantage of the provisions of the Act he may do so. I submit if that is the intention there is no protection of the tenant at all such as is required, because poor men or women living in hundreds of houses together in streets and tenements are not aware of their rights under the law and they are afraid of the risk of being evicted and they will suffer all kinds of ignominy and they will pay pence and shillings per week more than they are required to do by law to avoid the risk of conflict with the landlord. If the Act is not going to be a protection to the tenants it is not worth anything. If the Act is going to throw the onus of appearing in court and serving notices upon the landlord then what Deputy Lyons said a few moments ago is right, namely, "better throw it overboard and resist forcible eviction." It is much better than having a pretence of protection which is neally no protection at all. If the Minister's interpretation is right, and I am still doubtful, I prefer to read Sub-section (a) as meaning that any agreement they enter into should be within the limits of the Act and within the standard rent.
If that is so it is satisfactory, but if it means as the Minister suggested, or as I understood him to suggest, that they may make an agreement outside the standard rent, then the onus is upon the tenant, and that is all wrong. I want to draw attention to this fact that, speaking generally throughout the country, there are a large number of cases of tenants who have automatically entered into agreements under the Act, which is now being amended, to pay, say, 40 per cent. above the standard rents. The onus is now sought to be thrown on all those tenants to seek a reduction. That is the kind of provision that ought to lie upon the landlord and not upon the tenant. The tenant ought, automatically, to come into the region of the Act when it is passed, and not have to serve notice upon the landlord to the effect that he intends to come within the region of the Act. I hope the Minister will clear the air on this matter.
Mr. O'HIGGINS
I think it would be a good system to consider one amendment at a time. There has been a tendency, in discussing this particular amendment, to forge ahead, and to discuss simultaneously the following amendment. To combine discussion on two amendments does not make for clarity. Keeping to Deputy Davin's amendment, the position is as I have stated, that a landlord and tenant may come to an agreement within, as Deputy Johnson said, "the provisions of the Act," but it is open to either of them, to the landlord by (a) and to the tenant by (b) to claim the fullness of his rights within the Act, just as it was open to forego them by the agreement. Under the 1920 Act no such agreement could have been come to without the formality or the ceremony, as Deputy Magennis described it, the empty ceremony of the notice to quit which gave rise to quite a lot of confusion. “Subject to the provisions of the Act” has been stressed by Deputy Johnson and properly stressed. It is not competent to a landlord to charge a higher rent than the Act provides.
Mr. O'HIGGINS
No, not even by agreement.
That is exactly what I thought, but that is not what I understood you to say in your earlier speech.
Mr. O'HIGGINS
It is open to him to take a lower rent than he is entitled to under the Bill, and it would be open to him to terminate that by a notice just as it would be open to a tenant, if he were foolish enough to do it, to accept less than the fullness of his rights under the Bill. He might do that in certain circumstances, and it is open to him to terminate that state of affairs and to stand on the Bill after notice has been given. There has been a tendency as I say to forge ahead and to discuss the next amendment, but you can take the next amendment when it comes. Deputy Hennessy drew a picture of one man, one party, with a solicitor in his pocket, and the other with no means of knowing the law at all. That is an entirely inaccurate picture. The word landlord has, of course, a certain association of ideas with regard to us here, but without following Deputy Johnson's example and stressing too many specific instances, I know cases of landlords that do not at all correspond to the popular mental picture of them, and I know cases of landlords whose circumstances are very much worse than many of their tenants. Deputy Davin's amendment, as I have stressed, and as I stress again, is inequitable. It proposes to deprive one party of a right which the following section gives to the other. Now there must be reciprocity. If an agreement is come to, and if it is open to one party to terminate it by notice, it should be equally open to the other. The effect of Deputy Davin's amendment would be to leave a hopelessly lopsided arrangement by which one party to the agreement could keep it or break it as he choose, but by which the other was bound.
Might I satisfy Deputy Johnson and read to him again a few words of the Section under discussion. Section 7 reads:—
"The rent to be paid by the tenant who, by virtue of the provisions of this Act retains possession of any dwelling-house, shall be determined as follows:—(a) The landlord and such tenant may by agreement determine the rent to be paid by such tenant.” Linking up the opening words of Article (b) Section 7 with the opening words of Sub-section 1, it is impossible for anyone to misinterpret the rent to be paid by the tenant “who by virtue of the provisions of this Act retains possession of his dwelling house.” Article (b) (Section 7) reads:—“If at any time the rent to be paid by such tenant does not exceed the standard rent or exceed the standard rent by less than the amount permitted by this Act the landlord, notwithstanding any temporary agreement under this Sub-section, may serve upon such tenant a notice increasing such rent.”
There is only one interpretation of these words, and that is that the agreement entered into between the landlord and tenant is, for the purposes of Article (b), a rent either equal to the standard rent or above it, but not up to the limit allowed by the increase of rent under Section 8. Consequently, as the Minister argues properly, (b) and (c) are reciprocal. One provides for the landlord and the other for the tenant, and the forms to which I have drawn attention are the proper forms in each case. I quite agree with Deputy Johnson to this extent, that there are no charitable societies for providing relief to tortured minds. There are charitable societies like the St. Vincent de Paul, the Sick and Indigent Roomkeepers' Society, and so on, which come to the material aid of the needy poor, but legally it is not given unfortunately. That is one of the respects in which our charitable organisations are defective, notwithstanding the number of them, the extent of their operations, and the amount of money that they distribute. It is quite conceivable that hardship would ensue in the case of tenants such as Deputy Johnson describes. There is no one to let them know of their rights. If Deputy Johnson would introduce into the Bill some workable Clause by which a huge penalty would be imposed on the landlord who sought, trading upon the ignorance and the continuity of the ignorance of these tenants, to increase the rent beyond the limits allowed, that would improve the Bill. There is a later Section — Section 12 — which I will quote:—
"Subject to the provisions of this Act, if an increased rent or an increased rate of interest exceeds by more than the amount permitted under this Act the standard rent or the standard rate of interest, the amount of such excess shall, notwithstanding any agreement to the contrary, be irrecoverable from the tenant or the mortgagor, as the case may be.
There is in another Section, a penalty prescribed for anyone who attempts to get a fine or bonus or other payment for permitting the continuance of a tenancy. If there were a penalty Clause, so that a landlord who preys upon ignorance shall, when the offence is proved against him, be subject to a penalty of £100, I think that would meet he desire of Deputy Johnson. I throw that out to him as meeting his purpose, whereas the amendment under discussion does not.
The point that interests me is to know whether or not Deputy Johnson is right in the interpretation which I gather he took from the Minister, that the landlord and tenant may agree as they like, though afterwards the tenant may come along and claim a change. I am not at all satisfied with Deputy Magennis's explanation. I invite the Dáil to look again at this Section 7(a), which, after all, is very clear. There are two parts of it. The first part says, in terms, that the landlord and the tenant may by agreement determine the rent to be paid by the tenant for the time being under the Act. That is to say, that when an occasion arises for a change of rent under the Act an agreement may be made between them. So far there is nothing in these words to limit in any way the agreement. The terms of that agreement are limited, to some extent, by the following words, “subject to the provisions of this Act, the rent so agreed upon shall be the rent.” I ask what is the meaning of “subject to the provisions of this Act?”“Subject to the provisions of this Act” means this: unless there is anything in the agreement conflicting with the provisions of this Act. Very well. Deputy Magennis refers to Section 12, which places restrictions on increasing the rent and makes improperly increased rent irrecoverable in certain circumstances. But Deputy Magennis overlooked the opening words of Section 12, “Subject to the provisions of this Act”— in other words, subject to the complete liberty which we have given the landlord and tenant to agree as they like under Section 7, the following should have effect. In each of these two Clauses, 7 and 12, you have the words “subject to the provisions of this Act.” Therefore, Section 12 must be read subject to the latitude we have given landlord and tenant under Section 7. I take another Section — Section 8. The same fatal words appear again. “The amount by which the increased rent of a dwelling-house to which this Act applies may exceed the standard rent shall, subject to the provisions of this Act, be as follows”— subject to the latitude we have given you under Section 7 to do what you like, be as follows. I do not wish to assert that that view of the section is correct, but I do assert that the opposite view is very far from being proved, and I do assert that in a court of law a gentleman who took the view of Deputy Magennis might find himself in Queer Street. What then is the meaning of these words in Section 7 (a)“The rent to be paid by the tenant for the time being under this Act” and the following words “subject to the provisions of this Act”? I take it that the meaning is clear, that it means that where you have a provision like that which occurred in Section 13 expressly prohibiting the taking of a premium or a fine, that the landlord and the tenant in coming to their new agreement will be absolutely bound to observe the provisions of that Section 13. Because observe, if I have not mis-read that Section 13, Sub-section 1 — and, indeed, I think, the following Sub-sections — there is nothing there in this very carefully and skillfully drafted Act about “subject to the provisions of this Act.” Section 13 is a definite mandatory Section —“you shall not do so; you shall not put on a fine as a condition.” That is clear and unequivocal —“We tell you that is a thing you must not do.” Therefore when Section 7 talks about giving the right to the landlord and tenant to agree upon a rent under this Act, they mean “you must not infringe Section 13.” I venture to submit that Section 7 (a) does not mean “we prohibit you from infringing other Sections like 8 and 12,” which in their terms only apply subject to the preceding provisions which this Dáil shall have put into the Act of Parliament. Both Sections 8 and 12 expressly say “subject to anything we may have allowed you to do under other Sections of the Act, such-and-such a provision shall have effect.” I think it is obvious that some change in the wording is required in Section 7 if the intention is to be carried out.
Would the Minister accept, and would the Dáil agree to accept, a phrase something like this? After "the landlord and such tenant may by agreement determine the rent to be paid by such tenant for the time being under this Act," and "within the limits provided for by this Act." It seems to me that without such provisions there is very grave risk of the interpretation being such as has been suggested by Deputy Gavan Duffy, and which I think the Minister suggested as possible. I am driven to this conclusion now by the insistence of Deputy Magennis in previous amendments that this was an Act limiting the rights of eviction and limiting the rights of ejection. That is probably true, now. If the landlord and tenant are prepared to make an agreement outside the Act, and sub rosa saying “neither of us will take any action within the Act,” then they may do so, and such freedom simply overrules everything that the Act intends to provide because it places the tenant helpless as he is, by virtue of the fact that there is no accommodation, completely at the mercy of the landlord, or at the mercy of circumstances. He says,“I can afford to pay 5s. a week more for my house, and I will do so, and let the Act slide,” thereby steadily raising the rental and inducing other people to make similar agreements. I am afraid the Bill as drawn does encourage such agreements, and will allow of such agreements, practically to contract out of the Act. That is not the intention, and should at once be provided against.
Deputy Johnson apparently omits to notice Sub-section C, designed for the relief of such people, "notwithstanding any agreement entered into the tenant can."
That is no use to the dweller in the slums.
But there might be a tacit agreement that they will not, and circumstances will induce the tenant who is driven by poverty to make a tacit agreement of that kind with the landlord, that he will not take advantage of the Act.
There may be this duress, and under it a tenant may make this agreement which is so inimical to his own interests. Very good. This Act comes to his relief, and Sub-section 1, Article C of Section 7, enables him, notwithstanding that agreement to serve upon the landlord a notice under Form 3. What is the use of any Act to anyone who does not know? That is a practical question. Deputy Gavan Duffy argues very speciously, and he repeats the argument of Deputy Hennessy that unless a man knows what protection he is afforded by the law he is not able to take advantage of it. Why that is one of the jests made by the clown in "Twelfth Night." The old philosopher at Prague says, that "is is." We all know perfectly well that a man who does not know he has a weapon is unarmed. At the critical juncture when he ought to use it in his defence, if he does not know he has it, he has it not for all practical purposes. I concede to Deputy Johnson that what Deputy Gavan Duffy calls the dweller in the slums is not likely to know of this, but surely I have suggested how he can be made to know it. There are sufficient philanthropists to let him know what his rights and protections are. It is not a good thing to encourage litigation, it is not a good thing to have too much work for too many lawyers, and if Deputy Gavan Duffy, as a lawyer who has exhibited what he could do in making the Clause appear to defeat the purpose for which it was introduced, can argue so speciously, and if a man of such clarity of mind as Deputy Johnson can entertain doubts about it, what I suggest to him, and I hope I am a reasonable man, is that it would be better to reword this, but not to omit Sub-section (b). I am speaking altogether against the amendment, which has the effect of nullifying Article (b).
This amendment has only reference to the interpretation we are putting on it, that within limits an agreement entered into may be broken without notice. It is a very trivial matter because there will be no such agreements.
There may be. As I understand, the amendment we are discussing is to Section 7(b), and it has been so discussed by those who advocate it as to drive us into the desire really to debate, at times sub-section (b), and above all going back on (a) which we had passed. I am trying, therefore, within the limits of order to arrive at what I think is the proper view to take in regard to the proposed amendment, namely, to defeat that amendment because it serves no useful purpose to pass it. At the same time I candidly admit that in the course of the discussion, when Deputy Johnson raised this point, he raised a point which is undoubtedly one with regard to which a great many minds will be clouded, and for the benefit of the Act hereafter, and not for the benefit of lawyers, it would be well to have that amended. This penal Clause 13 says a person shall not, as a condition of the grant, renewal, or continuance of a tenancy or sub-tenancy of any dwelling-house to which this Act applies, require the payment of any fine, premium or other like sum, or the giving of any pecuniary consideration in addition to the rent, etc. There is a penalty — any person making or offering to make any such payment shall be liable on summary conviction to a fine not exceeding £20. If there were a penal clause imposing a penalty of not less than £100 on a landlord who would attempt to force a tenant to contract out of the Act and become liable by agreement under (a) to pay a rent in excess of the increase permitted by Section 8.
Deputy Magennis now admits that is the interpretation.
I do not admit anything of the kind. I take the position rather that when Deputy Gavan Duffy can argue so speciously and Deputy Johnson can be deceived, that it is not a wise thing to leave the words as they stand, or rather leave the Act as it stands. I have said that it should be amended, but not amended as proposed in the amendment now under discussion. Surely that is an intelligible position to take up when the amendment is worthless, inasmuch as it would defeat a very useful purpose of the clause to which it purports to be an amendment.
With regard to (a), that precedes it, an alteration of words, plus a later Section imposing a penalty in connection with that, is an amendment to the Act, but it is not an amendment in the sense that makes me guilty of such illogical self-contradiction as Deputy Hennessy seems to suggest.
Mr. O'HIGGINS
It may help if I read the paragraph of the report bearing on this matter, because when there is a question of what the Bill means, it might be helpful to know what it is intended to mean:—
"We think in a new Act it should be made clear that the parties are entitled to agree as to the rent payable, subject to the restrictions in the Act for the time being."
Will the Minister tell us the portion of the Report?
Mr. O'HIGGINS
Paragraph 21. It goes on to say: "Then the right of the landlord to increase the rent by the prescribed notice should be given affirmatively, with the right to serve further notices from time to time; also the tenant should be given the right to serve notice, for he might claim the amount of the permitted increase, which falls since the last notice; lastly, an existing rent should be continued up to the amount permitted by the Act, pending any agreement or formal notice. If this course were adopted, it would do away with the indiscriminate service of notices and confine the normal service of a notice to cases where a dispute is anticipated. It should be made clear that a notice is not to be invalidated in toto by reason of a technical difficulty or some error in calculation.”
It seems to me that the difficulty is not a real one, and that the key to it is this: the Bill contemplates a maximum rent, but that maximum is not fixed; it varies. For instance, when rates go up, the maximum will go up and vice versa. What this Section in the Bill aims at is to enable the fluctuation in either direction, upwards for the landlord, or downwards for the tenant. While it lies with them to come to an agreement at any given time, they may, without changing circumstances, decide to stand on the Bill and to serve their notice, the landlord for an increase, or the tenant claiming a reduction. The maximum rent payable under the provisions of the Bill will not be a fixed, but a variable rent, and any party may make up his mind, from time to time, that it would benefit him to claim the fullness of his statutory rights, and that some change has taken place either since the agreement or since the last notice, as the case may be. The tenant may decide that though the landlord at a particular time gave him notice to increase the rent, and did in fact succeed in getting that increase, circumstances have changed in such a way that it would not benefit him (the tenant) to claim a reduction. The idea of agreement simply gives you a starting point, and it is open to either party to claim, as they think the circumstances would favour such a claim on their part. I cannot see, though I am prepared to discuss the thing as between this and the next stage, that there is real ground for confusion, real ground for ambiguity, in that expression “subject to the provisions of this Bill.” In the report on which the Bill is modelled you have practically the same expression. I would undertake to look into the matter and discuss it, and if, in the opinion of experts and the draughtsmen, there is any real ambiguity as to the intent or the meaning of the provision as it stands, I would undertake to bring forward a suitable amendment. It would not be an amendment along the lines of what we are now discussing, or what we ought to be now discussing, which involves leaving to one party the right of which it is proposed to deprive the other.
Might I ask the Minister would he, in view of that undertaking, consider what revision would be made, taking into account also the words with which Deputy Duffy made so much play. If the words "subject to the provisions of this Act" were omitted, that would, I suggest, meet a great deal of the point in Deputy Johnson's criticism.
I am very much obliged to the Minister for quoting the paragraph he has quoted from the Report. When he comes to consider what amendments should be made I do urge upon him the desirability of taking note of the very great difference between the phrase, "subject to the provisions of this Act," and the phrase in the report, "subject to the restrictions in this Act." There is a very great difference. If it be made clear that the agreement that the landlord and tenant may make, must be subject to such restriction as the Act contains, then I for one would not have another word to say. But I think on investigation it will be found that it is not clear at present, because of the repetition of that ambiguous phrase in these sections whereby one section throws you back on another, and that section on another further back.
I am rather reminded of a certain discussion that took place when the British Act was introduced. I think I am right in saying that it was urged that the Act was more or less in the nature of a gambling Act. We were told that under the Act an eviction could not take place.
Mr. O'HIGGINS
Is this on the amendment?
Well, if the Minister wants to be very strict, I am out of order. But inasmuch as he began the disorder and we have all followed him, and that the disorderly discussion is very much more important than an orderly one would have been, I suggest that it is more desirable to allow this matter to be finished, and we would not be long in getting through it. Deputy Magennis has pointed out that this is an Act restricting eviction. Now, we have come to consider as a possibility that people may contract out of the Act by agreement. It is generally believed, and the report which was quoted by the Minister shows, that the Committee desired that there should be restrictions upon the power of the landlord to increase rents, or that even there should be restrictions upon the landlord and tenant agreeing to rents outside the limits of the Act. If the Minister would make sure that the intention of the report would be embodied in Section 7, presumably in Sub-section (a) of Section 7, then that issue would have led to a satisfactory conclusion. As the Minister has agreed to do that then we may leave it. On the amendment itself I do not see the injustice, but, as I say, it is of quite secondary importance. I do not understand the Minister's contention that it is unjust to say that an agreement entered into, knowing that the people are protected can, at the instance of one side be broken simply by notice. It seems to me that surely when an agreement has been entered into, after the Act comes into operation for a rent lower than the increase allowed, that that agreement will persist until a new agreement has been made. The proposition of the section is that in the event of an agreement to accept lower than the permitted increase being entered into, it will be of no avail as soon as the landlord says, “I want to break the agreement.” I do not understand the argument in favour of that view.
On the point that was last made by Deputy Gavan Duffy, I do suggest that we might hear from the Minister whether he is disposed to accept the suggestion of the alteration of words in this section, instead of "subject to the provision of this Act" that the words of the Report of the Committee might be accepted, "subject to the restrictions in the Act."
"Restrictive and other provisions" is necessary.
Mr. O'HIGGINS
I undertake to look into the wording, and will bring up on the Report Stage an alternative form. Whether it will be just that alternative or another I cannot say until I have gone fully into the matter and discussed it. It is clear from the report what the intentions of the Committee were, and it will be simply a question of reconciling the wording of the Bill with the intention of the Committee.
Amendment put and negatived.
I move:
In Sub-Section (1) (c) to delete the words “he may” and “landlord,” in lines 54 and 55, and to substitute, respectively, the words “the landlord shall” and “tenant.”
The Minister has, I think, stated his view upon this amendment too. The proposal of the amendment is to impose upon the landlord the duty of informing the tenant that he is entitled to a reduction. It is because of practical difficulties I want such an amendment embodied, whether in this form or some other form I do not mind. Take the case of the tenant who has been entitled to pay 5/- standard rent plus, say 2/- for permitted increase, plus 2/- rates, say 9/- in all. That is the utmost that is legally chargeable, but there has been a reduction of rates. The tenant not paying the rates directly, is not aware of this, and unless some organisation is promoted and encouragement is given by the clause as it stands to such an organisation simply to provide tenants with the information that they are now entitled to a reduction of rent, because of the reduction of rates, tenants are much more likely to continue paying the rental which they have been paying during the previous year. I submit that the onus of this matter of readjusting the rental to the new circumstances should be upon the new house owner, and that it should not be required of the tenant that he must serve notice on the landlord that a new charge is now to be made because of decrease in rates. It seems to me that the landlord, who is paying the rates in most instances, and who is much more likely to be acquainted with the changed circumstances, should bear the onus of informing the tenant of the new rental. That is the object of the amendment. I think the Bill as it stands, throwing upon tenants the onus of serving notice and of making themselves acquainted with all reductions of rates, etc., and how much that will affect their particular rental, is unreasonable. As a matter of fact I suppose 75 per cent. of the tenants know nothing about their valuation. They do not know how their rates affect them, and what proportion of the rent that they are paying the landlord is really rent, and what proportion is rates. Consequently they are not, except by means of some organisation, in a position to serve notice on the landlord. Therefore, I submit, that the purpose of the amendment should be accepted, whether in its present form or not, I am not particular.
Mr. O'HIGGINS
I feel that we ought not to proceed to throw that statutory duty upon the landlord, and we ought not to strike that new note, that any section of the people are so incapable of looking after their own rates that the onus must be thrown on the opposite party to the contract to inform them. It runs contrary to the whole trend of ordinary business relations in which each man is expected to mind himself and mind his own interests and know his own rates. You come along now and you ask one of the contracting parties to do something that is contrary to human nature, and I do not think that there are grounds for it. Although in this whole matter it is clear that certain people are thinking of tenants and landlords as opposite ends of the social scale, a picture which is most untrue, I think that the tenant is in fact capable of watching his own interests or has means at his disposal of ensuring that they will be watched either by an organisation or by the services of a solicitor. It would be open to the landlord to say, "If the tenant gets statutory protection in this way, why should you not throw on him the positive duty of paying an increased rent before he is asked for it?" Despite the conventional picture of the landlord that is presented here, one knows that very often the full legal right is not exacted, and that the landlord does not, in fact, come along to exact his last pound of flesh under the terms of this or any preceding Act. If you put on the landlord the positive duty of minding the tenant's business, either personally or through a solicitor, if he happens to have one, then you will certainly work up the state of mind where the full liability will be exacted. We are not standing for this simply because we refuse to accept the view that this Bill is so complicated that it does not lie in a fairly normal way within the power of the citizen to find out his rights in the matter. There was no such provision in previous Acts. If tenants find it necessary to organise to have their rights preserved, that is a matter they must consider, but I think the State ought not to come in in this way between the contracting parties, and put on one the positive duty of watching the other's rights and interests and assume that one is ignorant, while the other has all the information at its disposal.
I know cases where the circumstances of the landlord are inferior to those of his tenants, and it is becoming the rule rather than the exception, because there have been cases of people who were living on certain annual rentals at a time when the purchasing power of money was very much greater than it is now, and the rentals not having increased in proportion to the decrease in the purchasing power of money left those in very straitened circumstances indeed. The feeling is entirely against putting a positive duty which is unnatural on one of the contracting parties. Normally the relations between them would be free and unfettered. Owing to special circumstances we are coming in and, to a certain extent, controlling those relations, but we ought not to take the entirely new and exceptional step of saying that one party should watch the interests of the other where the interests of the other conflicted with his own. That is contrary to the whole trend of business relations as between man and man.
The spirit of the amendment is obviously doctrinaire.
It is reminiscent of former days.
St. Thomas Aquinas, the mention of whom I notice excites laughter in Deputy Gorey — the incipient laugh was unmistakeable—has raised a question which I think will interest Deputy Johnson. It is following a problem of morals started by Cicero. Suppose there is a beleagured city running short of food supplies. Some farmers, with that enterprise which characterises farmers in other lands, break through the lines, and bring supplies of corn. One of them arrives ahead of the others. The absolute necessity of the beleagured citizens would make them willing to pay any price which the enterprising farmer could exact. St. Thomas as a moralist asks, is the farmer bound to inform the needy citizens that there are other carts on the way with other supplies, and he answers the question that it would be heroic virtue on the part of the seller of corn to let it be known that the supply is not quite so limited as it seems, and that there will be no shortage in a little time. What Deputy Johnson proposes to introduce into the relation of landlord and tenant is heroic virtue. So the situation, as he visualises it is, I am a landlord who entered under (a) into an agreement with tenant B, and tenant B is to pay me such-and-such a sum. I have discovered later on that the amount of repairs I have to provide, and the cost of these on a falling market is such-and-such, and that the rates are decreasing. Whereupon I watch my books and write to B as follows:—“Dear B, Notwithstanding the temporary agreement into which we entered under a Sub-section of the Act, I rejoice to inform you that I find myself in a position to reduce the amount you agreed to pay. You will therefore kindly take notice that the amount is not so much, but so much, mentioning a lesser sum.” No doubt what Deputy Johnson proposes would be a highly desirable improvement in a relation of man to man, but is it practicable?
A DEPUTY
Yes, I am told. Well now, I would ask the affirmative answerer to re-read Article C in the light of the amendment, or rather in the darkness of the amendment; "If at any time the tenant is entitled to claim a reduction of an increased rent he may, notwithstanding any temporary agreement under this Sub-section, serve upon the landlord notice reducing such increased rent to the limit prescribed by this Act." Who is to enforce this obligation? The tenant, according to the argument in favour of the amendment, knows nothing about the situation, and it is because he could not possibly know that the rent he has agreed to pay ought to be reduced, that the amendment has been proposed, so that the situation, I imagine, is that my tenant B does not know that he is entitled to a reduction but we will introduce a Clause into the Act of Parliament making it obligatory upon me to notify him. But supposing I do not choose to recognise the obligation what will happen?
Very good. I am delighted to hear that answer. I shall be found out by some philanthropic Society's vigilance that makes it its business to protect the unhappy tenants from the consequences of their own ignorance arising out of their own poverty. The way to amend these things is to have better agencies and organisations for acquainting the poor of their rights. The St. Vincent de Paul Society provides them with bread and butter and shoes and boots, and contributions towards their rent, my charity would take the form of not merely supplying them with medical assistance as is done through the dispensaries, but with legal assistance as well, by introducing a highly imaginative and sentimental adjustment of an Act of Parliament which could not work.
Amendment put, and lost.
Question put:—"That Section 7 stand part of the Bill."
Agreed.
Mr. O'HIGGINS
I suggest that we give the harassed landlord a rest, and move to some other item on the Orders of the Day. It will cheer up some people to learn that I am prepared to accept the next two amendments. I move to report progress.
I think the Minister is to be congratulated.
