Vol. 3 No. 29
I move that the Bill be now received for final consideration.
SECTION 2.
Sub-section (2)—Where the landlord at the time by reference to which the standard rent is calculated paid the rates chargeable on or which but for the provisions of any Act would be chargeable on the occupier, the amount of such rates shall, for the purpose of such calculation, be deducted from any rent by reference to which such calculation is made.
I move: "In page 3, section 2 (2), line 52, to delete the word `paid' and insert in lieu thereof the words `habitually paid or allowed a deduction or set off against or indemnified the tenant against." This amendment is introduced in pursuance of an undertaking given by the Minister for Home Affairs in the Committee Stage. It is intended to make it clear that the Bill will operate to neutralise the effect of the decision in the case of Bradshaw v. McMullan.
I may say in connection with this amendment that it was scarcely seriously contested or doubted on the Committee Stage that the grievance underlying the Bradshaw McMullan decision was dealt with in the Bill. This amendment is the result of a promise given that it would be taken beyond the region of any possible doubt, that that particular hardship was removed. The result of the amendment is to define the standard rent in such a way as to make it perfectly clear that standard rent means pre-European war rent, less such rates as were contracted to be paid by the landlord, whether such contract was legally binding or not. It will be observed that the words used are "habitually paid or allowed a deduction or set off against or indemnified the tenant against." If Deputies turn to Section 8, Sub-section 1 (b) it will be observed that the permitted increase in respect of rates as rates payable by the landlord, payable in that context, means legally payable. There is a judicial decision to that effect. It will be clear that poor rate cannot be legally payable by the landlord, which is the effect of the Bradshaw-McMullan decision. Consequently the landlord cannot add poor rate to the standard rent. Take a concrete example. If a landlord and tenant, having agreed in 1913 on a yearly rent of £60, the landlord paying the rates, and if the poor rate in that year be taken as £3 and the other rates amount to £7, then in those days the tenant will probably have paid £60 to the landlord, who paid £10 in rates to the rate collector, or possibly the tenant paid £50 to the landlord and £10 to the rate collector. In any case the tenant's effective burden was £60, and the landlord's effective rent was £50. It will be understood that the word "effective" is used in relation to the rates as an outgoing. There would be other outgoings. £50 is clearly the standard rent of the house as defined by this Bill. Suppose now that rates have doubled, and that the poor rate is £6 instead of £3, and the other rates are £14 instead of £7, and assume then that the tenant is compelled to pay the rates direct to the rate collectors, the landlord as regards rates can only add on the £14 for the rates to the standard rent, because the £6 poor rate is not legally payable by him. As regard the £14, other rates, the tenant can successfully claim a set off. Thus, it is perfectly clear that the tenant's effective burden cannot exceed £50 plus the full rates. In other words, the landlord cannot get more than £50 effective rent, and that is in fact the end that is desired. The Bradshaw-McMullan decision, which is analogous to a pleading of the Gaming Act, is definitely met and definitely removed in the Bill, and the amendment that Deputy Duggan has moved is simply subsequent to an undertaking given by me to raise that out of any possible doubt.
The amendment which I have set down is one about which I must confess I had, at the time, considerable doubt, not with regard to its necessity or value, but as to the exact place in the Bill to introduce it. At first I thought it should come in after Section 8 altogether as a new sub-section. Then, because in Section 4 the words are used "rent lawfully due," it occurred to me in haste that that was the place in which to introduce this reference to Bradshaw and McMullan. I was aware in Sub-Section 2 of Section 2 that there was a phrase which looked remarkably like counteracting the effect of the House of Lords decision, and in Section 8, also, there was, and there is, used a phrase which seemed also to deal with it. I will try to make my mind clear on the matter, if that is possible. The words of this amendment are, instead of "paid," to read "habitually paid." To go back a little to the history of Bradshaw v. McMullan case might serve a useful purpose even though it would take a few minutes. Previous to the Local Government (Ireland) Act of 1898, ordinarily the landlord paid half the poor rate and the tenant the other half, but it was always legal for the tenant and landlord to make an arrangement by which the landlord would be liable for the entire poor rate. Then, through Section 52 of the Local Government (Ireland) Act, 1898, an agreement of this kind was declared null and void. In any contract of tenancy, entered into after the Act of 1898, a provision putting liability for the poor rate upon the landlord was null and void. Now, in the case of Bradshaw v. McMullan, at the second stage of the hearing of the action between these two litigants, Bradshaw claimed to take advantage of that, presumably, as the Minister says as a man in a betting dispute may claim the cover of the Gaming Act. The present Chairman of Seanad Eireann, who was then Lord Chancellor, decided in favour of Bradshaw's contention that under Section 52 the contract made by McMullan for his own cover was null and void. The other landlords immediately proceeded to break the agreements made with their tenants under a like agreement. The Act of 1920 tried to introduce protection, but the words it used are the words at the beginning of Section 8—“Wherever any liability for rates was legally borne by the landlord.” The decision of the Irish Courts was that inasmuch as this was not imposed on the landlord by statute it was not a legal burden, and, consequently, the protection that was sought to be given by the Act was not afforded. My amendment was intended to get rid of Section 2 of the Act of 1898, and to declare that, notwithstanding anything in that section that a contract transferring liability for rates from the tenant to the landlord should be valid. Now, I understand that the contention here is that the substitution of these words in the amendment for “paid” has the same effect or, at any rate, pro tanto, the effect desired. It does not seem to me that that was so because the word “deduct” is used. That proved, as regards some legal decisions, a very wicked word. What I am not quite satisfied about is that the Irish Courts here shall not be obliged to follow the rulings of the House of Lords. We must not forget that in our Adaptation of Enactments Act, these decisions will still have the authority they had unless there is an express repeal. I respectfully suggest that there is no express repeal here.
I wonder whether it would affect the Deputy if I assured him that the highest legal opinion at the disposal of the Government has been secured on this point.
Very good.
I think this amendment is right. I think it does what the Minister for Home Affairs has stated, and I think he is right in confining it to the purposes of this Act. The amendment of Deputy Magennis was, I think, intended to have the effect of repealing Section 52 of the Local Government Act altogether. In my humble judgment, the Minister was right in declining to accede to such repeal. The whole object of that Section, which was defeated by the landlords themselves, who entered into contracts in violation of the law, was to make people of this country take an interest in the election of those who were representing them on the local Councils, and who were expending the rates levied upon houses. I think it is vital for good government in this country that people should have an interest— a pecuniary interest is one that affects them most—in getting good governors and good government in every branch of administration.
Now we have a Parliament of our own. We have for a long time had Urban and Rural District Councils and Corporations of our own, and it is vital that people who elect these representatives on those Councils should have some interest in seeing that they elect competent and trustworthy people, and make the people thus pay rates and taxes that are charged upon them by their governors. That is the best way to make them take an interest. Therefore in this respect, I think the amendment of Deputy Magennis went too far in the repeal of what, if it is properly enforced, is a valuable piece of legislation, and the Minister for Home Affairs has done full justice by seeing that those people who enter into contracts in violation of the law do not afterwards make money by breaking the contracts they made with their tenants.
Deputy McGoldrick asked me to propose this on his behalf. The amendment is:—
In page 4, Section 3 (1) (ii), to insert after the word "purposes," and before the word "and" in line 39, the following:—
"Provided that where a dwelling-house and business premises are held in common as an annual letting this Act shall not apply, unless it is shown that the annual letting value of said premises, for residential purposes alone, is more than one half its annual letting value for the combined purposes of trade and residence, and accordingly, in case the annual letting value of any premises for the combined purposes of trade and residence is shown to be more than double its annual letting value for residential purposes alone, nothing in this Act shall affect the right of the owner to recover possession of same, or otherwise to obtain a competitive annual rent."
I regret we are not accepting this amendment. It seems to be based on the assumption that business premises ought not to be controlled, and it seems to me further that if it were adopted the logical consequences would be the deletion of Section 16 of this Bill which provides that they shall be controlled. The underlying idea of the amendment seems to be that if the business premises element is predominant the rent ought not to be controlled at all, but the Bill provides that where you have the residential and the business element combined, that the house should be, in fact, treated as a dwelling-house. That provision in the Bill is based on the report of the Committee. An amendment to alter that aspect of the Bill was discussed, and defeated in the Committee Stage. This is merely bringing up a matter again that has been already raised in the Dáil.
The amendment was not moved on the Committee Stage. It was ruled out of order on the Minister's representation that it was part of a Section already passed. It was said it might come in under Section 3.
As between the Committee Stage and this Stage, we have considered very carefully whether there was any reason to depart from the provisions of Section 16 of the Bill, and any reason to exempt mixed places of this kind where you have the business house treated also as a residential place, and we are not convinced that there is any case for this amendment. I am sorry Deputy McGoldrick is not present to put the case he thinks exists, but certainly on information before us, and on the report of the Committee, we cannot accept the amendment.
Amendment put and negatived.
SECTION 4.
(1) No order or judgment for the recovery of possession of any dwelling house to which this Act applies, or for the ejectment of a tenant therefrom, shall be made or given unless:
(a) any rent lawfully due from the tenant has not been paid, or any other obligation of the tenancy (whether under the contract of tenancy or under this Act) so far as the same is consistent with the provisions of this Act has been broken or not performed; or
The next amendment was received late and sent to the printers in the form it was received. I have suggested as an alternation the following: "Provided that, in the case of a tenant whose income does not exceed £4 per week, said rent has not become due owing to the illness or unemployment of the tenant."
I move in page 5, Section 4 (1) (a) to add after the word "paid," line 57, the words "provided that in the case of a tenant whose income does not exceed £4 per week, said rent accrued has not become due owing to the illness or unemployment of the tenant." I ask the Minister to accept this amendment, as it would be fairly awkward on a lot of tenants that owing to illness or unemployment they may not be able to continue paying rents or may not get an opportunity to defend their case if the landlord tries to put them out. I think it is only fair and honest to make provision in this Act to enable them to continue in possession, provided this provision does not apply to a tenant whose income is over £4 per week. I may add that it was not my original intention to have that clause in it, but I did it to safeguard the poor working man so that he will have some protection in this Bill.
I am afraid that the Deputy, in reading through the Bill, did not take particular notice of Sub-section 3 of Section 4, which reads:—
"At the time of the application for or the making or giving of any order or judgment for the recovery of possession of any such dwelling-house, or for the ejectment of a tenant therefrom, or in the case of any such order or judgment which has been made or given, whether before or after the passing of this Act, and not executed at any subsequent time, the Court may adjourn the application, or stay or suspend execution on any such order or judgment or postpone the date of possession for such period or periods as it thinks fit, and subject to such conditions (if any) in regard to payment by the tenant of arrears of rent or mesne profits and otherwise as the Court thinks fit, and if such conditions are complied with, the Court may, if it thinks fit, discharge such order or judgment."
We think that the Deputy's point as to hardship arising out of illness or other such cause is amply provided for in that Sub-section where the Court has power to take such action as will prevent the occurrence of hardship of that kind, and will give time to the tenant whom it feels is making reasonable efforts to clear off arrears and pay his rent. Inasmuch as that object aimed at by the Deputy is abundantly provided for in that Section, we think the amendment unnecessary and we do not propose to accept it.
I do not think the object of the amendment is at all met. I fully understand the matter and I have read the Clause several times.
Would the Deputy read Section (5)?
I am dealing now with this Section. Of course, I know it lies in the discretion of the Judge whether he will or will not evict tenants under this particular Clause, but we want to try and have it enacted in the Bill and not leave it to the kindness of the Judge or anyone else. Here it lies with the Judge himself. By accepting this amendment and inserting it in the Bill it would be made a hard and fast rule and would have to be carried out. Unless the Government accepts this amendment we will have to go to a division.
The effect of this amendment is that if a tenant was unemployed by his deliberate choice no decree could be made against him for rent; no judgment for possession could be given against him, and there is no provision by which if he became employed again any arrears of rent could be recovered from him, or a decree made for possession against him if he refused to pay the arrears that accrued during the period of his voluntary unemployment. It seems to me the general effect would be that a tenant, or a body of tenants, in possession of rooms in one of those houses that have a large number of rooms could not be put out, or have a decree for possession made against them, because the defence would be that they were not working, and that they were unemployed, and therefore no decree in such a case could be made against them for possession. That scarcely seems to be fair.
There is just one point. I am sure the Dáil will fully realise that a tenant in a house could not have many rooms when he had only four pounds a week when at work, especially having regard to the present cost of living.
I was referring to a number of tenants who occupied a number of rooms in a particular dwelling.
As regards the next amendment on the Order Paper, I want to raise a point of order about it. I think it embodies something that was very thoroughly discussed on the Committee Stage.
Was there an amendment to this effect in Committee?
That point, I think, raises a very important question. Are we to consider that an amendment, which may have been discussed and defeated in Special Committee, cannot be considered when the Bill returns to the Dáil? If it may be so discussed after being considered in Special Committee, have we any right to treat the matter differently if it has been discussed in the Dáil in Committee?
There is a Standing Order on the matter which says:—"In the case of Bills returned from Dáil Eireann sitting in Committee no amendments, previously rejected shall be in order."
This amendment has not been rejected.
The Standing Order specifically does not mention Special Committees, and therefore, I presume, the intention of the Committee on Procedure was to exclude amendments of this character.
An amendment in these terms was moved on the Committee Stage.
On a point of order, is the Minister in order in——
The Minister is in order in making a point of order to the effect that the amendment cannot be moved.
Even before it is moved?
An amendment to this effect was moved: "And the Court is satisfied that alternative accommodation reasonably equivalent as regards rent and suitability in all respects is available." That amendment was moved and defeated on the Committee Stage.
Then the Deputy's amendment is out of order and cannot be moved.
I bow to your ruling, A Chinn Comhairle. I beg to move the following further amendment to Section 4 (8), to add after the word "tenant" on line 36,: the words "but the Act shall apply in all cases where the employee is dismissed from his employment through no fault of his own, and shall apply in all cases during the continuance of a trade dispute."
I think the Minister for Home Affairs and the Dáil should receive this amendment with open arms. In the case of a trade dispute, where an employer had a large number of employees living in dwelling houses which he owned himself and which happened to be in the vicinity of the firm concerned in the trade dispute he could, under this Section, evict every one of the employees mixed up in that trade dispute. This amendment was also intended to meet the case of men who, through no fault of their own, but because of the slackness of trade were thrown out of employment. I would remind the Minister for Home Affairs that a very learned K.C., a man who was one time a leading light in the English House of Parliament made a statement to this effect, that there was no Act of Parliament through which one could not drive a coach and four. I do not want the present Town Tenants' League of Ireland to drive a coach and four through this Bill when it becomes an Act, and that is why I put forward this amendment. If you accept it you will be able to prevent that organisation, of which I am a member, doing that. I am going to go against this Bill in every shape and form until, in the interests of the tenants, these amendments are accepted.
What the Deputy may do in the future is a matter entirely for himself. His amendment raises an interesting question as to what a "fault" is. It says "where the employee is dismissed from his employment through no fault of his own." This would be an impossible amendment to accept. It puts on the Court the onus of deciding whether a particular employee has been guilty of a fault or not. He might have been guilty of a lack of judgment, or guilty of avarice, but it is a difficult question to ask the Court to say in the case of a particular dispute between an employer and an employee, that the employee was or was not in fault. This Bill is not a Bill for the regulation of trade disputes, and I submit that the amendment is not relevant. Trade disputes, any that I have watched, generally ended by some kind of compromise, and the compromise generally carried with it reinstatement, a kind of status quo position. Presumably there will be no considerable departure from that in the future, but whether there is or not it is not a question that can be dealt with by the Bill. The Deputy scarcely realises the difficult role he will impose on Judges if this amendment were accepted. They have got to say in every case of a trade dispute, in every case of friction between employer and employee, whether or not the employer was in fault in the particular instance. The amendment has no proper place in the Bill, no real relevancy to the Bill, and I am not accepting it.
I have a good deal of sympathy with the mover of the amendment, but I cannot help feeling that he does not attain his object even if he gets the amendment passed. Apart from the rather obvious fact that to attain his object it would require much more elaborate drafting than he has attempted, one may be permitted to point out to him that whereas the Section he wants to amend indicates that this Section shall not apply in certain cases, his amendment proposes to add to it, "but the Act shall apply in all cases where the employee is dismissed," and so on. The two things are totally different. If the Deputy got his amendment passed the fact that the Act was going to apply to cases he specifies would in no way prevent this Section from not applying to them. I think the Deputy has got himself tangled in the wording of a somewhat elaborate Bill, and if he looks at the matter he will see that it is utterly useless to pass the amendment, because to say that the Act is going to apply to certain cases does not get you out of the difficulty which the Deputy has in mind. It says nothing about individual Sections excluding certain cases that have been in his mind, and, consequently, to pass the amendment would be utterly useless.
I use the word "Act" as "Act of Parliament."
I beg to move. Page 7, Section 4, to add a new Sub-section as follows:—"Where an order for the recovery of possession of a house to which this Act applies, or for the ejectment of a tenant therefrom, has been made but not executed before the passing of this Act, the Court—by which the Order was made—may if it is of opinion that the Order would not have been made if this Act had been in operation at the date of the making of the Order, rescind or vary the Order in such manner as the Court may think fit for the purpose of giving effect to this Act." I think if I interpret Sub-section (3) of Section 4 aright, it covers the point I had in mind in bringing up this amendment, and that any fears or anxieties I have entertained would be sufficiently allayed. I think the Minister will agree that Sub-section (3) of Section 4 deals with this amendment sufficiently.
I think that Section 4, Sub-section (3), meets the amendment, and I find it hard to imagine such a case as the Deputy anticipates arising. In any case I think Section 4, Sub-section (3) is sufficient.
I beg to move: Page 7, Section 4, to add a new sub-section as follows:—
This section shall not apply to any dwelling-house or premises to which this Act applies, acquired by a landlord since January 1st, 1920.
In this amendment I have in view the case of the house speculator who goes out to purchase a house and obtains possession of the house in the Court on the plea that he wanted it for his own use, and, probably, gets a decree for possession, dispossesses the tenant, goes into possession for a short time, and then sells the house at an increased price. I ask the Minister to consider such a case arising in the future, and to make some provision before the final passing of the Bill, whereby such tenants would be protected from persons like that. I think it is a reasonable case to put up, and I do not think that I am asking too much in asking the Minister to give it consideration.
Does that apply to a case where the house is acquired since the date he mentions by will?
I have not that in mind. I have in mind house speculators who purchase and who make a business of it.
The Deputy will have to be reminded that the Judge will never know what he has in his mind.
Frankly, I do not understand the amendment. Section 4 deals with restrictions on the rights of possession. The Deputy's proposal is that the provisions of Section 4 shall not apply to a dwelling-house or premises to which this Act applies acquired by a landlord since January 1st, 1920. If the house was built since April, 1919, the provisions of this Act do not apply at all. If it was built before that date, if it was built in normal times—and this Act is intended to apply to houses built in normal times—then there seems to be no sufficient reason why it should be decontrolled because it had come into a particular person's possession since January, 1920. If the Deputy sees such reasons, I would be glad if he would be more explicit in stating them.
Mr. G. FitzGibbon took the Chair at this stage.
I imagine this amendment is going to defeat the mover's object utterly. If it were passed it would simply mean that any house that has changed hands since the date mentioned—since the 1st January—would be free, and that the present owner could obtain any rent he likes. It is a repeal of the Act in so far as it affects these particular tenancies. Deputy Hennessy had got into his head that there are a very large number of tenants in the country who are living in houses on which there has been no increase whatever since 1914, and he is afraid that there will be a general increase on those tenancies. This Act will not cause the landlords to increase the rents, I think, inasmuch as they will have been allowed hitherto to increase them. Judging by the argument that is used, I think that they are not likely to avail of it now, but the effect of this new sub-section suggested means that any person who has gone into a house since January, 1920, is at the mercy of the landlord, and that the protection that the Act is intended to apply will be lost. I do not think that was the desire of the mover, but that would be the effect of the amendment.
I had in mind that the Dáil decree provisions as to providing alternative accommodation prevented such speculators from going ahead. Having regard to the assurance of the Minister, I ask leave to withdraw the amendment.
In regard to the next two amendments, 6 and 7, recalling the discussions that occurred in Committee of the Dáil dealing with this matter, it occurs to me—perhaps I am unduly presumptious—that both endeavour to carry out the terms of that discussion in different ways, the Minister's amendment being rather a fuller carrying out of it than the specific alteration of wording proposed in No. 7 by Deputy Johnson. They do definitely relate to the same matter, and more or less cover the same ground.
I beg to move amendment No. 6:
In page 8, Section 7 (1), lines 36 to 61, to delete paragraphs (a), (b) and (c), and to insert in lieu thereof the following paragraphs:—
(a) The landlord and the tenant may at any time, and from time to time by agreement (in this Section referred to as a temporary agreement) determine the rent to be paid by the tenant under this Act in respect of such dwelling-house, and in such case the rent so determined shall, until varied by a new temporary agreement, or by notice under this Section, be and continue to be the rent to be paid by the tenant in respect of such dwelling-house; Provided always that the rent determined by a temporary agreement shall in no case exceed the standard rent by more than the amount which at the date of such agreement is permitted by this Act in respect of such dwelling-house;
(b) if at any time the rent payable by the tenant, whether under a temporary agreement or otherwise, does not exceed the standard rent, or exceeds the standard rent by less than the amount for the time being permitted by this Act, the landlord may serve upon the tenant a notice increasing such rent to an amount not exceeding the standard rent by more than the amount permitted by this Act, and in such case such increased rent shall, until varied by a subsequent temporary agreement or a subsequent temporary notice under this Section, be and continue to be the rent to be paid by the tenant in respect of such dwelling-house;
(c) if at any time the rent payable by the tenant, whether under a temporary agreement or otherwise, exceeds the standard rent by more than the amount permitted by this Act, the tenant may serve upon the landlord a notice reducing such rent to an amount which exceeds the standard only by the amount permitted by this Act, and in such case such reduced rent shall, until varied by a subsequent temporary agreement or a subsequent notice under this Section, be and continue to be the rent to be paid by the tenant in respect of such dwelling-house.
I think amendment No. 7 comes first.
I agree that the object I seek in the next amendment will be gained if amendment No. 8 is adopted. In view of that, I suggest that, under the circumstances, No. 6 might be taken now, and I will risk it not passing.
I was endeavouring to suggest that.
The object of this amendment (No. 6) is to improve the wording of Section 7 in the original draft, and make it clear that the rent agreed on is subject to the restriction in the Act.
With regard to the wording, one matter occurred to me, to which I would bring the Minister's attention, and that is, (c) seems rather unnecessary in view of (a). If he will turn to the two he will see (a) concludes thus: "Provided always that the rent determined by a temporary agreement shall in no case exceed the standard rent by more than the amount permitted by this Act." (c) says if at any time the rent exceeds the standard rent by more than the amount permitted by this Act the tenant may serve a notice reducing such rent. Surely this proviso in (a) renders the whole of (c) supererogatory, because if it is stated that it shall not be so, the tenant has a right to cause it automatically to be reduced to the legal requirements set out in (a), which is all that (c) intends to do. I therefore suggest that (c) merely is making assurance doubly sure by killing the fallen slain.
I think, with all respect to Deputy Figgis, he is misreading the first sentence, because it says that the landlord and tenant may enter into a temporary agreement, and then the proviso is that "the rent determined by such temporary agreement shall in no case exceed"—that is, the limits of the permission are given in the proviso. They may enter into an agreement which is not one putting the rent above the lawful increase prescribed by the Section (a), but, apart from the legality or permissability, the fact is possibly that the tenant might under some compulsion or coercion enter into an agreement of this sort, undertaking to pay a rent in excess of what is legally permitted under (a). If that were so, the tenant can escape the obligation of that in Section (c) by simply having recourse to the Court, so that there is really no discrepancy between them. It is due to the fact that the proviso is put in at the end of (a) instead of incorporating it at the beginning of (a).
(c) refers to a "temporary agreement or otherwise." I would draw attention to the fact that the amendment may still leave it possible for a period to elapse between the time that the agreement is made and the later stage when the permissible increase is less than the amount of the agreement. The words are, "Provided always that the rent determined by a temporary agreement shall in no case exceed the standard rent by more than the amount which at the date of such agreement is permitted." An agreement may be made in January for payment of so much, including rent and rates. The total might be £50. On the 1st April there is a considerable reduction in the rates. I wonder would that require that the tenants would then have to serve notice upon the landlord for a revision of the agreement?
Deputy Figgis has discovered a mare's nest, and whether the mare in this case is a female horse or belonging to a lower species is not for me to say. Section (a) refers to the date of the agreement. Sections (b) and (c) start, "if at any time," and so on. Now the thing to remember is that the rent under the provision of this Act is not a static thing, but variable—that it varies, for instance, with a fall in rates, and the rates might fall between the date of the agreement and any subsequent date. With any fall it would be open to the tenant to serve notice of reduction, and that is where Deputy Figgis walked into it, so to speak.
I think this amendment meets the points made on the last Stage very well, but I should like if I may, to suggest to the Minister that between this and the next Stage he might consider leaving out three words at the beginning of the section. Sub-section (1) says: "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." I suggest for his consideration that it is dangerous to leave in the words "by virtue of the provisions of this Act."
As a matter of drafting, and to avoid disputes in the Law Courts, it would be better to leave out those words and rely on the subsequent words, "the position of any dwelling-house to which this Act applies," as being ample and sufficient. If you leave the words I object to in, you will have cases of people who would continue in possession by the tacit consent of the landlord, and it would certainly be open to argument that a tenant is not continuing in possession by virtue of the provisions of this Act. I foresee there is a pretty field of controversy possible in words which, I think, if examined, will be found wholly unnecessary, as they are covered by reference to the Act in the third line of the section. They are dangerous words, and are quite unnecessary. I do not ask the Minister to decide that now. It is a matter that could be decided later.
If there were anything faulty in the wording it would be important to get it right now, inasmuch as there will be no other Committee Stage in the Dáil. I am advised, however, that the wording as it stands is all right, and I must rely upon that advice.
I suppose we may assume this section applies in the case of agreements entered into, verbally or written, any time previous to this Act becoming law? Does it apply in cases of agreements made within the last five or ten years, or only to agreements from the time the Act becomes law?
I do not object as a lawyer to the words staying in. From a lawyer's point of view they are delightful, because they are a source of litigation. The matter should, however, be brought to the attention of the legal advisers of the Ministry between this and the next meeting.
Does the Deputy suggest any words in substitution?
I suggest they are covered by the words, "dwelling-house to which this Act applies." Those words amply cover the case the Minister has in mind.
I will have the point raised by Deputy Gavan Duffy looked into, and if we find the words are wrong and that he is right, it will be easy to get the matter rectified in the Seanad.
Amendment, "In page 8, Section 7, to insert after the word `applies,' in line 35, the words `shall not exceed the standard rent by more than the increase permitted by this Act, and subject to this limit' " (Tomás MacEoin), withdrawn.
I beg to move: In page 9 Section 7, line 24, to add the following new Sub-section:—
If a landlord demands, whether in writing or otherwise, or enters into an agreement with a tenant for the payment of a rent exceeding the standard rent by more than the amount permitted by this Act, he shall be liable on summary conviction to a fine not exceeding ten pounds, unless he proves that he acted innocently and without intent to deceive.
Those last words are taken from another Section of the Act. The arguments in favour of this were stated very clearly and fully by Deputy Magennis. There is a danger of certain classes of landlords, house lords, house-owners, taking advantage of the fear of tenants— that they may be put out and that they may lose their houses—by demanding rents, frequently perhaps not by themselves but by their rent collectors—the kind of person they send around to tenements to collect rents and who make all kinds of threats. It is to meet that kind of collector, or the landlord who employs that kind of collector, that this amendment was brought forward. It seems to me that there is something required by way of penalty upon the landlord who is endeavouring to obtain money by false pretences—endeavouring to obtain rents which he is not entitled to. On the other hand, it may well be that even the landlord may innocently demand more than he is entitled to. The amendment, as drafted, would make it quite clear that no such person will be liable to this penalty. I beg to move the amendment.
When we remember that this control is abnormal, it will help us to get a proper perspective with regard to the amendment. The normal method would be to allow the free play of economic forces, to allow landlord and tenant to make their bargains on the basis of demand and supply. But a situation grew up in which the scarcity of houses was such that it became necessary for the State to bring in a measure of control in alleviation of the position the tenants would otherwise be in. But to go further and suggest that the State, having interfered between two contracting parties, should proceed to impose penalties on the one for any failure on the part of the other to secure himself and to see that he got his full rights, is something which is not acceptable to us. I wonder if the Deputy, before putting down the amendment, had considered Section 15. Section 15 is put in to meet the object that Deputy Johnson aims at in his amendment. That is, I submit, as far as we could go in defence of one of the contracting parties, remembering that the situation which gives us any right or justification for interference between these parties is an abnormal situation.
It is an elementary principle in business matters that people are expected to look after themselves. It is for this purpose, for instance, that organisations such as Town Tenants Leagues exist, confer and get advice. Cases are submitted. But for the State to undertake this onus of protecting one of two parties to a business deal is a principle that we are not prepared to accept. Section 15 gives ample protection. It provides for the recovery of sums wrongly paid, and it provides a penalty for any proved cases of fraud; of attempt to deceive by incorrect entries or otherwise. But that is the maximum protection that we feel called upon to give to one of two parties who would normally be free agents and simply dealing on their own without control.
Perhaps the Minister will remember that in Section (b) there is a penalty imposed upon any landlord or householder who demands a premium, which is another way of entering into an agreement.
Yes; anticipation of rent. There is an old maxim, of which mention is often made, which says that he who proves too much proves nothing. The Minister argues very properly that this legislation is to meet abnormal circumstances. It does meet these. To extend protection to the tenant is the essence of this Bill. The essence of Deputy Johnson's amendment is to prevent beforehand, if possible, the necessity on the part of the protected tenant from having recourse to the remedies provided in the Bill. That, I think, is the case for the amendment. Undoubtedly Clause 15 protects the tenant from being forced to pay even where there is colour given to the pretence that he owes rent, that colour being secured through entries in a rent book. But Section 13, which I quoted before, does not permit the landlord to exact a premium or fine or any similar sum, and not only that, but a person requiring any payment or the giving of any consideration in contravention of this section shall be liable, on summary conviction, to a fine not exceeding £100. That premium or that fine is something more than a licence, so to speak, by the tenant. It is also a kind of anticipatory rent. It is a lump sum paid beforehand instead of being distributed as rent over a number of years. The spirit of the amendment is precisely that which animates all the sub-sections of Section 13. I quite agree that to-day, after the new wording of the previous section, by which we have permitted agreements to be entered into and then have restricted the character of these agreements, the necessity for a penal section of this kind has to a great extent disappeared. That is how it appears to me, inasmuch as the agreement is permitted, which before was not permitted under the 1915 to 1920 Restriction Acts. It is undoubtedly the duty of the tenant to keep his eyes open in the framing of this agreement, or to have assistance of some sort, and whoever gives him that assistance will, of course, have in view the restriction of Section 7, and I quite see that the case might be made for the Minister that the number of times that this intimidation will be necessary will reduce almost to vanishing point. Still, it does appear to me that the presence of a penal section of this kind adds to the completeness, and in fact makes for the perfection, of the Bill.
I agree that to amend Section 7 again, perhaps, is necessary although I also think that Section 16 goes a long way to meet the point that Deputy Johnson has made, but that it does not go far enough. The difficulty about the present amendment, as it seems to me, is that it will not hit the worst cases. If one reads the words put down by Deputy Johnson, I think one would see that in the really bad case, where the rent collector had gone round getting more than he was entitled to, if you prosecute the landlord he will say, "Oh, that was a shocking thing for the rent collector to have done. I have never authorised him. I get a lot of rents, and, of course, I did not notice that a little more was paid in this case than in the other cases. This ruffian who was collecting rent for me did that off his own bat." You cannot treat him as a criminal in a case of that kind, if the Court believes that he is not telling the truth, or, I should say, if you are not in a position to prove he is not telling the truth. The person whom the Deputy wants to hit—namely, the landlord who knowingly does these things—will wriggle out through his rent collector, because the amendment, as worded, does not hit the landlord—does not hit the landlord where he did it through the rent collector, and he can afterwards say, "It is not my fault."
It seems to me that the weakness of the amendment is: Who is going to discover this thing, and who is going to prosecute the landlord? If you tell me that a tenant or his advisers will discover it or may discover it ultimately, well, there is the safeguard in Section 15.
I do not like to interrupt, but we are not in Committee, and I think that the same ruling will have to apply to everybody. Some other Minister may reply on your behalf, but you have already spoken on this amendment, unless, of course, it is a matter of explanation.
I do not think it is a matter of explanation.
I move: In page 9, Section 8 (1), (c), (i), line 53, to add after the word "rent" the following:—"That where money has been paid by the tenant for repairs which have not been carried out by the landlord on or since the 3rd August, 1914, that the tenant shall be entitled to have refunded to him by the landlord all moneys paid by the tenant for said repairs." I think there are many cases where tenants have paid in some instances 25 per cent. of an increase for repairs since 1914, and none of these repairs have been carried out. During that time the landlords were receiving something like 25 per cent. of the rent each year for doing nothing at all. They carried out no repairs, and I think it is only just and fair that this money should be refunded to the tenants. The Minister may tell me that Section 15 deals with this also, but I do not think so. If it does provide for it, I am willing to withdraw the amendment. I ask the Minister to accept this amendment. It is a deserving one, dealing with the case where people, I may say, get money under false pretences. A landlord who gets money to carry out repairs and does not carry them out gets money under false pretences.
The difficulty of accepting the Deputy's amendment is, it is so very retrospective in its effects. I wonder if the Deputy adverts to the fact that under the 1920 Act it was possible for a tenant to get the landlord's 25 per cent. allowance for repairs and his 15 per cent. bonus suspended if he were able to satisfy the Court that the landlord was, in fact, not executing repairs. That remedy was there for tenants. If it was not availed of, it is rather difficult to see that any other remedy would be availed of now. It clearly was there, and this amendment, with its retroaction to 1914, seems outside the scope and purpose of this Bill, and I do not propose to accept it.
The amendment in my name, I think, is not in order on your ruling already on a similar amendment.
I was about to inform Deputy Hennessy that his amendment was not in order. An amendment to substitute another figure for 10 has been already defeated in Committee, so his amendment is ruled out of order.
I wonder if before the next amendment by Deputy Duggan is moved I would be allowed to make a small verbal correction without notice:—"In line 40, in page 13, the words `any such Act" clearly should be `this Act.' "
That amendment would have been in order, I believe, even on the next stage. It is a printer's error.
I move: "In page 13, Section 16, to insert immediately before Section 16 a new Section, as follows:—Where a dwelling-house to which this Act applies is empty or unoccupied the landlord of such dwelling-house shall be deemed to be the person in rateable occupation of the dwelling-house for the purpose of any enactment authorising the making, levying or recovering of any rate on or from an occupier thereof."
This amendment is brought forward in pursuance of an undertaking given when the Bill was in Committee. The object of this amendment is to penalise landlords who keep their houses vacant for an unduly long period by imposing on them a liability for rates which, as the law stands at present, they are not liable for.
I welcome this amendment as a desirable movement towards something reasonable. I wish there was in addition a liability to let the unoccupied house or to offer it for a rental at the rates provided for in the Bill, but that has not been acceptable, and I think this is a good second best.
I think the Deputy may rest assured that when the landlord has to pay the full rates on a vacant house the house will not be vacant very long.
What rates?
All rates.
Amendment 11 by Mr. Lyons:—"In page 13, Section 16 (1), (d) to delete the words `twenty-five,' line 58, and to substitute therefor the word `five.' "
I doubt if that is in order under the previous ruling.
I cannot understand how that amendment is out of order.
I do not know what the decision in the Committee was in this case, or whether there was any amendment on this.
The point of changing that figure was fully thrashed out in the Committee stage. An amendment proposing to alter the bonus was moved in the Committee stage, and it was pointed out that the 1920 Act controlled business premises only for one year and gave a 35 per cent. bonus.
The ground on which the previous amendment was ruled out of order was that in Committee an amendment had been moved to change ten to five. That amendment was defeated, and it follows from that, when the Dáil was not willing to reduce ten to five, to reduce ten to nothing would be out of order. I have no record of any amendment of this particular figure in this particular section.
The question as it arose was the desire to make business premises and house property identical. That was in effect the amendment.
I think I am in order, because the last time an amendment was moved it was moved to delete paragraph (a). This amendment is different altogether. It was an amendment to delete the word "twenty-five" and substitute the word "five."
I think the amendment is certainly in order. I apologise for the delay, because I was not in the Chair at that stage, and have no record of what amendments were moved in Committee.
I can assure the Dáil that it would please me better if the Minister would accept the amendment rather than I should accept your apologies. I put forward this amendment because I do not think it is right, after giving a landlord 10 per cent. in the previous section, we should now give him 25 per cent. I think five per cent is quite enough. If I had my way I would give him nothing.
If this is a sample of town tenants legislation it is pretty bad. I am going to ask the Dáil to refuse to put the tenant of business premises in a better position than the tenant of a house. I was twitted for saying I was standing up for the small shopkeeper the other day, but I am certainly not going to ask the Dáil to put him in a better position than the house tenant.
It is scarcely necessary for me to add anything. The Act of 1920 controlled business premises for one year only and gave a bonus of 25 per cent. It is a concession to control, and we have done so only according to the regulations of the Departmental Committee. Twenty-five per cent. is the figure recommended by that Committee, 10 per cent. being the figure for dwelling-houses. Everyone knows that shops make bigger profits now than in 1914. There is no case for limiting the increase to 5 per cent.
Except that the shopkeeper will put on an increase to the consumer.
I think the amendment is lost.
Division.
We will take a division.
I am going to ask for a proper ruling. I am not quite sure whether a Deputy who calls for a division can ask the Ceann Comhairle not to have a division. I want to be clear on this point now. In other words, what I meant was, I simply called for a division so that when I should get a full House I might be allowed for at least two minutes to explain why a shopkeeper should be looked after just the same as the small man.
Deputy Lyons cannot go into this matter at all. My ruling is that after a division is called for it must be taken.
I am quite satisfied even though I am a one man party, as Deputy Gavan Duffy is.
