In consideration of the fact that this amending Bill is of a miscellaneous character, the Chair permitted, in Committee, an amendment moved by Deputy Fionan Lynch. On examining the amendments now tabled for the Report Stage, I find that most of them, particularly Nos. 4, 5 and 6, are new matter. However, the Chair is prepared to allow all these amendments. Since a Bill is usually recommitted in respect of such amendments, Deputies may speak more than once to each amendment.
Registration of Title Bill, 1941—Report and Final Stages.
I move amendment No. 1:—
In page 2, before Section 4, to insert a new section as follows:—
The committee constituted by Section 73 of the Courts of Justice Act, 1936, shall be styled the Registration of Title Rules Committee in lieu of the style assigned to it by that section.
This is a minor amendment, the purpose of which is to alter the title by which the Rules Committee is known from "Local Registration of Title Rules Committee" to "Registration of Title Rules Committee." The change is thought desirable in consequence of the change in the citation of the Principal Act provided for by Section 3 of the Bill, and also having regard to the short title of the Bill itself.
Amendment agreed to.
Mr. Boland
I move amendment No. 2:—
In page 4, to add at the end of Section 9 a new sub-section as follows:—
(3) Sub-section (1) of Section 11 of the Principal Act shall (notwithstanding the repeal thereof by this Act) be deemed to have been amended, as from the commencement of Part I of the Courts of Justice Act, 1924 (No. 10 of 1924), by the substitution of the expression "the Minister for Justice" for the expression "the Land Judge" wherever the latter expression occurs therein, and accordingly every nomination made by the Minister, after the commencement of the said Part I and before the passing of this Act, of an officer in or attached to the central office to exercise and perform the powers and duties of the central registering authority or of an officer in or attached to a local office to exercise and perform the duties of the local registering authority shall be and be deemed always to have been validly made under the said sub-section (1) as so amended, and nothing done by any such officer by virtue of any such nomination shall be invalid or capable of being questioned on the ground that such nomination was invalid.
Section 11 (1) of the 1891 Act empowered the Land Judge to nominate an officer or officers of the Central Office to exercise and perform the powers and duties of the central registering authority, that is, the Registrar of Titles, or to nominate an officer in a local office to exercise and perform the powers and duties of the local registering authority. The amendment proposes to amend retrospectively the provisions of Section 11 (1) by substituting the Minister for Justice for the Land Judge, and it validates any nominations that may have been made by the Minister.
The main purpose of the amendment is to validate the appointment of the present Acting-Registrar, who has been discharging the duties of Registrar since February last, when the Registrar retired on reaching the age limit.
Amendment agreed to.
Mr. Boland
I move amendment No. 3:—
In page 6, Section 14, line 13, before the word "whereby" to insert the words "or for the transfer of a registered charge on registered land," and in the same line before the word "is" to insert the words and brackets "or the intending transferee (as the case may be)".
Section 14 of the Bill renders void any stipulation in a contract for the sale or charge of registered land whereby the purchaser or chargeant is precluded from making requisitions in relation to burdens that may affect the land. This section was introduced originally to give effect to a suggestion of the Incorporated Law Society, who thought the practice, which obtains in certain parts of the country, of embodying such stipulations in contracts to be improper. On the Committee Stage, Deputy Ruttledge suggested, on behalf of the Law Society, that the section should be extended so as to cover also contracts for the sale of registered charges on land. The amendment does this. The Rules Committee has approved of the proposal.
Amendment agreed to.
Mr. Boland
I move amendment No. 4:—
In page 7, before Section 18, to insert a new section as follows:—
Notwithstanding anything contained in Section 83 of the Principal Act, Part IV of that Act shall apply to freehold registered land which shall have been at any time, whether before or after the passing of this Act, purchased by means of an advance made under the Small Dwellings Acquisition Acts, 1899 to 1931.
This amendment proposes to apply the provisions of Part IV of the 1891 Act to freehold registered land purchased under the Small Dwellings Acquisition Acts. Part IV, which at present applies only to freehold registered land bought under the Land Purchase Acts, effected an important amendment of the law of real property as affecting the transmission of the ownership of land on death. The great majority of purchasers under the Land Purchase Acts were yearly tenants whose tenant right interest, which was of considerable value, devolved as a chattel real, which meant that the holding devolved on the personal representative for the benefit of the next-of-kin.
One of the consequences of the acquisition by a tenant of the freehold in his holding was that it changed its devolution. On his death intestate after the purchase, the holding, being now a freehold, devolved on his heir-at-law subject to the right to dower of his widow. The change caused both hardship and inconvenience, and to secure that a tenant's interest would still devolve as a chattel real for the benefit of the next-of-kin as a whole, notwithstanding his acquisition of the freehold, the special provisions contained in Part IV were inserted in the Act.
It is now proposed to apply the provisions in question to freehold registered land purchased under the Small Dwellings Acts. The main reason for this is that the existing law in regard to the devolution of freehold land, involving, as it does, such consequences as the creation of rights of dower, tenancies for life and so on, is particularly unsuitable for application to very small holdings, such as constitute for the most part the type of holdings acquired under the Small Dwellings Acts. In England all freehold land now vests in the personal representative of the deceased owner, and the vesting of land in the heir-at-law, rights of dower and tenancy by the courtesy (or tenancies for life) have been abolished. This was done by Part IV of the 1891 Act, as regards land in Ireland bought under the Land Purchase Acts, and the effect of the amendment will be to do the same as regards land bought under the Small Dwellings Acts.
I understand from the Minister that this amendment has been recommended by the Rule-making Committee. I find it hard to see that there was any real necessity for this, and I shall tell the Minister why—this is purely a personal opinion of my own, and I have not gone beyond that. The property that is purchased under this Small Dwellings (Acquisition) Act is generally—in small towns at any rate —small houses, with very little land attached to them, perhaps a yard or something like that, and as Part IV of the Local Registration of Title Act did not apply, if the father died intestate, the property went to the eldest son, subject to the right of the mother. Now that is going to be changed. If the father dies and leaves a widow and three children, all will share under the Intestate Estates Act.
I wonder is it worth while in these cases? It would be much better for these people to be left as they were. What will happen if the father does not make a will is that nobody will be the boss and there will be cases where the property concerned will not be worth the trouble of administration and certainly not worth the bother of incurring great legal steps in regard to it. What happens at the moment, in country towns at any rate, in regard to artisans' dwellings or small dwellings, when the father dies, is that the eldest son is regarded as the legal owner, and in strict law he is the legal owner. I do not know the reasons for bringing this in, but it seems to me that it will not result in any great benefit to these particular people and may make things rather awkward for them occasionally. I do not press it beyond that.
Mr. Boland
We have considered that and we think that, on the whole, it is worth while. After all, generally, when people do make a will they provide for all the members of the family and it seems only fair, when the general practice is to provide for all the family, that it should be done in the case where a man dies intestate and let them settle between themselves the question as to who is to have the house.
There is one town in my constituency which was the first town that ever adopted this particular Act, the Small Dwellings (Acquisition) Act, and the average cost of the houses purchased through that was something like £46. These dwellings have been improved a great deal since because people got them cheap and only paid back at the rate of 1/- a week, but it seems to me that the average type of person who lives in these houses, whether they dispose of their property by will or die intestate, is not the type of person that will be able to provide for all the members of his family, and I think it would be better if the position were the same as the position in the case of a labourer's cottage, where only one member of the family would be entitled to get the property. I think this will involve these people in legal complications.
Mr. Boland
These were matters considered by the Rules Committee and I usually accept their suggestions, but I will have that point examined and if I am satisfied that there is need for a change I can consider it again when it comes to the Seanad. I cannot do it here.
Amendment agreed to.
Mr. Boland
I move amendment No. 5:—
Before Section 23, page 9, to insert a new section as follows:—
The powers conferred on the registering authority by Section 67 of the Principal Act shall be exercisable not only in the case of an application to register an owner of land but also whenever the registering authority has occasion, in the course of his duties, to investigate the title to registered land or to a burden on registered land, and the said powers shall, when exercised on any such occasion, extend to and be exercisable in respect of the production of any deed, will or other document the production of which the registering authority considers to be necessary for the purpose of such investigation.
This amendment proposes to amend Section 67 of the 1891 Act so as to give the registrar power to require production of all necessary documents in any investigation of title. Section 67 at present refers only to cases where an application is made to register an owner of land, but documents are often required in other cases where no change of ownership is involved, as, for example, in applications to cancel equity notes or to register leases as burdens on land. It is the practice in such cases to order production of the necessary documents, but if the person having custody of them objected on the ground that the application was not for the registration of an owner, the registrar, in the present state of the law, would not be able to insist on their production. Therefore, the amendment is considered necessary.
Amendment agreed to.
Mr. Boland
I move amendment No. 6:—
Before Section 23, page 9, to insert a new section as follows:—
Where freehold registered land to which Part IV of the Principal Act applies is settled by the will of a testator dying after the passing of the Principal Act (whether before or after the passing of this Act) and probate of the said will is granted. to two or more executors, those executors shall be trustees for the purposes of the Settled Land Acts, 1882 to 1890, of the settlement of such land made by the said will, unless or until trustees for those purposes of the said settlement are appointed by the said will or otherwise.
This also is a recommendation of the Rule-making Committee. The object of this amendment is to provide that where lands subject to Part IV of the 1891 Act are settled by will and the will does not appoint Settled Land Act trustees, the executors who prove the will will become Settled Land Act trustees until such trustees are appointed. Sub-section (4) of Section 84 of the 1891 Act provides that proving executors shall be deemed to be trustees of the settlement "for the purposes of this Act", that is, the Act of 1891. Until recently it was thought that Section 84 (4) had the effect of making proving executors Settled Land Act trustees also. This was probably due to the provision in Section 95 of the 1891 Act that, in that Act, the expression "trustees of the settlement" was to be construed as having the same meaning as it had in the Settled Land Acts, 1882 to 1889. The presence of the words "for the purposes of this Act" in Section 84 (4) has, however, raised doubts on the point, and the idea that proving executors were Settled Land Act trustees has had to be abandoned, with the result that, if a sale of the lands under the Settled Land Acts becomes necessary, the parties are put to the trouble and expense of an application to the court for the appointment of Settled Land Act trustees. It seems clear that the framers of the 1891 Act intended that Section 84 (4) should have the effect of making the executors Settled Land Act trustees but that, owing to bad draftsmanship, they failed to achieve their intention. The amendment remedies the position now.
Amendment agreed to.
Mr. Boland
I move amendment No. 7:—
In page 10, Second Schedule, before the amendment of Section 46, sub-section (3) of the Principal Act, to insert the following:—
Section 40, sub-section (7). By the deletion of the word "certificate" and the insertion in lieu thereof of the word "instrument".
The object of this amendment is simply to remedy an obvious drafting error in sub-section (7) of Section 40 of the 1891 Act. The expression "certificate of charge" should obviously be "instrument of charge".
Amendment agreed to.
Mr. Boland
I move amendment No. 8:—
In page 10, Second Schedule, before the amendment of Section 58, sub-section (1) of the Principal Act, to insert the following:—
Section 56: By the deletion of the words "and in each local office such maps for the county in which such office is situated".
Section 56 of the 1891 Act provided that maps should be kept in the central office and in each local office. Maps have not been kept in the local offices since 1922, when the practice was abandoned on account of the pressure of work in reconstructing maps destroyed by fire. Besides, only a limited use was made of maps in the local offices, and the expense and inconvenience occasioned by their preparation and the keeping of them in conformity with the central office maps was not considered worth while. The object of the amendment now proposed is to legalise the practice that has obtained for the last 20 years.
Amendment agreed to.
Question—"That the Bill as amended be received for final consideration"— put and agreed to.
Question: "That the Bill do now pass," put and agreed to.