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Dáil Éireann debate -
Wednesday, 24 Mar 1943

Vol. 89 No. 11

Landlord and Tenant (Amendment) Bill, 1942—Committee and Final Stages.

Section 1 agreed to.
SECTION 2.

I move amendment No. 1:—

In sub-section (1), paragraph (a), lines 24 and 25, to delete the words "not so situate, does not exceed one statute acre in area", and substitute the words "such land is not so situate, such land was demised by such lease for a term of not less than twenty years."

I have provided in the Bill that a holding which is outside an urban area and is not more than one acre in extent would have the benefits of the 1931 Act. On thinking over the matter, I thought I would not be justified in confining it to one acre. A person could have two acres, held separately, and would still have the benefits. I propose now, instead of having a limit of one acre or any area limit, to provide that the lease must be for not less than 20 years so that it would not be a question of an ordinary agricultural letting and, if that is the case, if the land is built on and the lease is for 20 years or more, the benefits of Section 46 of the 1931 Act would be extended to such a lease. I think that is more satisfactory than limiting it to one acre.

Amendment agreed to.

In regard to amendment No. 2, it seems to me that the Deputy's point is met by amendment No. 3.

I move amendment No. 2:—

In sub-section (1), before paragraph (b), to insert a new paragraph as follows:—

(b) by the deletion in paragraph (b) of the said sub-section of the words "the portion of such land not covered by such buildings", and the substitution in lieu thereof of the words "either the whole of such land not covered by such buildings, or any separable and definable portion of such land not so covered".

This amendment and another amendment in my name were designed to cover a type of case where an individual acquired a property under an unexpired lease and proceeded to build thereon. I have a case in mind of a property in an urban area containing 24 acres and a very substantial residence. A number of houses were built on the land at a cost of some £12,000. The lease is about to expire and the tenant has applied to the landlord for a reversionary lease. The landlord has refused to grant him a reversionary lease. It would appear to me to be highly improper and unfair on the part of this landlord, who had no interest whatever in the development of the property in this particular town. In fact, it appears that he had no intention of building or developing the property.

Here is an enterprising man who, some years ago, expended £12,000 and that particular portion of the property is worth in the neighbourhood of £20,000 now. If he is not able to secure a reversionary lease, it means that he will have to surrender that valuable property to an individual who has no interest whatsoever in the town. That is because all the property is not fully developed and, according to the original Act, that portion of the land is not subsidiary and ancillary to the portion which has been developed. The Minister is conversant with the case, and so far as I can see, I think he has covered it fully. I should like, however, to have the Minister's assurance that he is satisfied that that case is covered. If so I shall withdraw my amendment in favour of the Minister's.

Mr. Boland

I think, as a matter of fact, I have covered this point better than it was covered in the Deputy's amendment because he does not provide for a case in which there was a house actually on the land. Perhaps I might be allowed to move amendment No.3 at this stage.

Is amendment No. 2 being withdrawn?

Amendment No. 2, by leave, withdrawn.

Mr. Boland

I move amendment No. 3:—

Before sub-section (2), to insert a new sub-section as follows:—

(2) Where a lease (in this Act referred to as a partly-built lease) which expires after the passing of this Act would, at its expiration, be a building lease as defined in sub-section (1) (as amended by the foregoing sub-section of this section) of Section 46 of the Principal Act but for either or both of the following facts, that is to say, that, though there are (in either case), at such expiration, permanent buildings on the land demised by such lease, the portion of that land which is not covered by such buildings is not wholly subsidiary and ancillary to such buildings or some (but not all) of such buildings were neither erected by the lessee under the partly-built lease nor erected in pursuance of an agreement for the grant of that lease on their erection, the following provisions shall apply and have effect by way of amendment of the said Section 46, that is to say:—

(a) the partly-built lease shall, for the purposes of Part V of the Principal Act, be deemed to be at its expiration and to have been since the passing of this Act or for the seven years next preceding such expiration (whichever period is the shorter) two separate leases whereof one lease (in this Act referred to as the built-on lease) comprises that portion of the land demised by the partly-built lease which is covered with permanent buildings, either erected by the person entitled at their erection to the lessee's interest under the partly-built lease or erected in pursuance of an agreement for the grant of that lease on their erection, together with so much of the said land as is subsidiary and ancillary to those buildings and the other lease (in this Act referred to as the vacant lease) comprises the residue of the said land, whether there are or are not permanent buildings on that residue;

(b) for the purposes of such division of the partly-built lease, the rent thereby reserved shall be deemed to be apportioned between the built-on lease and the vacant lease rateably in proportion to the area of the land comprised in those leases respectively and the covenants on the lessee's part and the conditions contained in the partly-built lease shall be deemed to be apportioned likewise so as to relate separately to the land comprised in the built-on lease and to the land comprised in the vacant lease;

(c) the built-on lease shall be deemed to be, at the expiration of the partly-built lease and to have been since the said division of that lease, a building lease as defined in sub-section (1) of Section 46 of the Principal Act as amended by this Act, and Part V of that Act shall apply and have effect in relation thereto accordingly;

(d) a sublease of part of the land comprised in the built-on lease, which would, at the expiration thereof, be a proprietary lease as defined in sub-section (2) of Section 46 of the Principal Act if the partly-built lease were a building lease as defined in sub-section (1) of that section as amended by this Act, shall be deemed to be at the said expiration and to have been from the passing of this Act or the commencement of the term demised by such sublease (whichever is the later) a proprietary lease as so defined as aforesaid, and Part V of the Principal Act shall apply and have effect in relation thereto accordingly, and for that purpose the built-on lease shall be deemed to be the building lease of which the said sublease is a sublease.

This amendment provides for a case such as was mentioned by Deputy Hughes in which a plot of land was only partly developed. As the Act stands at present, unless all the land is ancillary to the buildings that are erected, those holding under the building lease or sub-leases thereunder do not get the protection of the 1931 Act. I agree with Deputy Hughes that that was not the intention of the Oireachtas at the time the Act was passed. I think it would be most unjust that, because a man proposed to build six houses on certain land and succeeded in building only three, he or those to whom the houses were sublet should be deprived of their rights. We are providing for that by dividing that particular lease into two leases. A new term has been coined by the Parliamentary draftsman and he calls one portion of the lease the "built-on" lease. That will apply to the part of the land which had been developed. Take the case of a man who proposed to build six houses but who built only three. To each of these houses there was a certain amount of land ancillary. A road was driven right through the estate, but the other portion on which no houses were built was undeveloped and might have been used as a market garden. There might have been a house on it before the lease was granted. Under the amendment it is proposed to treat the part that has been developed as the subject of a "built-on" lease and give to it all the privileges of a building lease. The landlord and the tenant can make whatever arrangements they wish as regards the vacant land. I think this amendment covers the point more fully than Deputy Hughes' amendment because it provides for the house on the land which his amendment would not.

In effect, that means that he is entitled to a reversionary lease?

Mr. Boland

Yes, and if he sold the houses to other tenants, they would be entitled to their leases.

I should like to ask the Minister if a public body builds a doctor's residence on land on which the lease has expired, can the public body get the benefit of this amendment? I have a case in mind in which, although the landlord had already been paid £300 by the public body, he refused to take another £120 and the public body had to give him £720 in all. Will this new clause safeguard the position of public bodies such as that?

Mr. Boland

The first amendment I moved covers that case.

Does it cover all public authorities because I have other cases?

Mr. Boland

It does. The reason it was not covered previously was that it was not in an urban area. It happened to be outside a village. For that reason it was not included. In this Bill we have rectified that omission. I was providing only for one acre, but as I examined the case I did not see any reason why we should confine ourselves to one acre. I am making sure that the lease will not be an ordinary agricultural letting, but will be a genuine building lease.

Is the Minister protecting other cases? I have in mind other cases in the City of Cork where leases held by public institutions will soon be up.

Mr. Boland

They are covered by the 1931 Act. This is only providing for a case raised by Deputy Mulcahy where a building was erected before the lease was actually made. This is a building outside an urban area. The other cases were already provided for and there was no necessity to cover them in this Bill.

I am anxious to know if, in a city area, a public institution has a lease which will expire in four years, the landlords are free to make any charge they like when the renewal of the lease comes along? I have in mind a case in Cork where the lease will soon be up, a big institution.

Mr. Boland

The Act of 1931 provides for that. They are already covered by that Act. This other case was not covered because it was not in an urban area.

Amendment put and agreed to.
Section 2, as amended, ordered to stand part of the Bill.
Amendment No. 4 not moved.
SECTION 3.

Mr. Boland

I move amendment No. 5:—

Before Section 3, to insert a new section as follows:—

(1) Where a lease (in this sub-section referred to as the expired lease) which expired after the passing of the Principal Act and before the passing of this Act was not at its expiration a building lease as defined in sub-section (1) of Section 46 of the Principal Act but would, if it had expired after the passing of this Act, have been either a building lease as defined in the said sub-section (1) as amended by this Act, or a partly-built lease within the meaning of the next preceding section, such of the following provisions as is or are applicable shall apply and have effect, that is to say:—

(a) where—

(i) the expired lease would have been a building lease as defined in sub-section (1) of the said Section 46 as amended by this Act if it had expired after the passing of this Act, and

(ii) the lessee under the expired lease is, at the passing of this Act, in possession of the land or any part of the land comprised in the expired lease, and

(iii) the granting. (under Part V of the Principal Act) to such lessee of a reversionary lease of such land or the part thereof of which he is so in possession (as the case may be) would not prejudice or affect any right acquired before the 1st day of March, 1943, by any person other than such lessee and the person liable to grant such reversionary lease,

then and in such case such lessee shall, during six months after the passing of this Act, have the same rights in relation to obtaining (under the said Part V) a reversionary lease of the said land or the said part thereof (as the case may be) as he would have had during the seven years next before the expiration of the expired lease if this Act had then been in force;

(b) where—

(i) the expired lease would have been a partly-built lease within the meaning of the next preceding section if it had expired after the passing of this Act, and

(ii) the lessee under the expired lease is, at such passing, in possession of the whole or some part of so much (in this section referred to as the built-on land) of the land demised by the expired lease as would have been comprised in the built-on lease arising on the division (under the said next preceding section) of the expired lease if that lease had expired after the passing of this Act, and

(iii) the granting (under Part V of the Principal Act) to such lessee of a reversionary lease of the built-on land or the part thereof of which he is in possession (as the case may be) would not prejudice or affect any right acquired before the 1st day of March, 1943, by any person other than such lessee and the person liable to grant such reversionary lease,

then and in such case such lessee shall, during six months after the passing of this Act, have the same rights in relation to obtaining (under the said Part V) a reversionary lease of the built-on land or the said part thereof (as the case may be) as he would have had during the seven years next before the expiration of the expired lease if this Act had then been in force;

(c) where—

(i) a lessee (in this sub-section referred to as a sublessee) under a lease which is a sublease (whether mediate or immediate) under the expired lease is, at such passing, in possession (where the expired lease would have been a building lease if this Act had been in force at its expiration) of the land or part of the land demised by the expired lease or (where the expired lease would have been a partly-built lease if this Act had been in force at its expiration) of the built-on land or part of that land, and

(ii) such sublease would at its expiration (if this Act had then been in force) have been a proprietary lease as defined in sub-section (2) of Section 46 of the Principal Act, and

(iii) the granting (under Part V of the Principal Act) to such sublessee of a reversionary lease of the land of which he is so in possession would not prejudice or affect any right acquired before the 1st day of March, 1943, by any person other than such sublessee and the person liable to grant such reversionary lease,

then and in such case such sublessee shall, during six months after the passing of this Act, have the same rights in relation to obtaining (under the said Part V) a reversionary lease of the said land of which he is so in possession as he would have had during the seven years next before the expiration of such sublease if this Act had then been in force;

(d) in a case to which any of the foregoing paragraphs of this sub-section applies, the fact that the lessee or sublessee to whom that paragraph applies has taken or agreed to take from his landlord or a superior landlord a lease or other letting (other than a reversionary lease the terms of which are not less favourable to such lessee or sublessee (as the case may be), than the terms which might have been fixed by the court under sub-section (1) of Section 48 of the Principal Act) of the land of which he is in such possession as is mentioned in that paragraph shall not prevent or prejudice the obtaining by such lessee or sublessee (as the case may be) by virtue of the said paragraph of a reversionary lease of the said land under Part V of the Principal Act, and, on such lessee or sublessee so obtaining such reversionary lease, the said lease or letting or the agreement therefor (as the case may be) so taken or made by him from or with his landlord or superior landlord shall become null and void, but without prejudice to the validity of anything previously done in pursuance of a covenant or condition contained in such lease, letting or agreement.

(2) Where a lease (in this sub-section referred to as the terminated lease) was, after the passing of the Principal Act and before the passing of this Act, terminated (before the expiration thereof by effluxion of time) by ejectment for non-payment of rent, breach of covenant, or otherwise, or by the exercise by the lessor of a power of re-entry for breach of a covenant or a condition contained in the terminated lease, and the terminated lease was not, at the date of its termination, a building lease as defined in sub-section (1) of Section 46 of the Principal Act but would, if this Act had been in force on that date, have been either a building lease as defined in the said sub-section (1) as amended by this Act or a partly-built lease within the meaning of the next preceding section, the following provisions shall apply, and have effect, that is to say:—

(a) a person who was, at the termination of the terminated lease, in possession of the land or any part of the land comprised in the terminated lease and was so in possession thereof under a sublease (whether mediate or immediate) under the terminated lease which would have been a proprietary lease (as defined in sub-section (2) of Section 46 of the Principal Act) if this Act had then been in force, shall, if he is in possession of the said land or the said part thereof (as the case may be) at the passing of this Act, be deemed to be and always to have been in such possession under a proprietary lease and shall have and be deemed always to have had, in relation to the said land or the said part thereof (as the case may be), all the rights, privileges, and protections conferred on lessees under proprietary leases by Part V of the Principal Act;

(b) where a person to whom the foregoing paragraph of this section applies has, subsequent to the termination of the terminated lease, taken or agreed to take a lease or other letting of the land of which he is so in possession as is mentioned in that paragraph from the landlord who terminated the terminated lease, such lease or letting or the agreement therefor (as the case may be) shall, on the passing of this Act, become null and void, but without prejudice to the validity of anything previously done in pursuance of a covenant contained in such lease, letting, or agreement.

This is to provide for a case mentioned by Deputy Mulcahy on an earlier stage when he suggested that a sublessee, whose lease expired since 1931 but who is still in possession, should have the benefit of the 1931 Act so long as no third party has acquired some rights in the meantime. This is a very long section, and it was very difficult to frame it, but I think every point is covered in it. It also covers the case where a new lease may have been agreed to on the understanding that the parties could not get the benefits of the 1931 Act. Provided that no third party is interested, that lease, if its terms are less favourable than those which could have been got under the 1931 Act, is being voided, as it was intended that such cases should come under the 1931 Act.

The case was a very simple one. I suppose, arising out of the experience which the Minister had under the 1931 Act, he was anxious to see that whatever holes existed in different directions should be stopped. The Minister is to be congratulated on finding out all the holes that had to be stopped.

Mr. Boland

They were found out for me, I can assure the Deputy.

I can only hope that the Minister has successfully stopped all of them.

This long amendment may cover the particular case raised by Deputy Mulcahy, but does the Minister think it right, generally, that whatever agreements or leases were made since the passing of the 1931 Act should be made null and void now?

Mr. Boland

As between the two main parties, I should say that the provision is fair enough. If a third party were to come in, it would be different. Take the case of a head landlord who had made a lease which expired since 1931. If, because of a flaw in the Act, this man had to make another agreement with the same person, I do not think that there would be anything unfair or unjust in this provision. If a third party had come in in the meantime, it would be different.

This amendment merely gives a person who was entitled, in spirit, to the benefit of the 1931 Act the benefit to which he might not be entitled according to the letter of the Act?

Mr. Boland

That is all.

It does not deprive a person who, because of the defect in the 1931 Act has acquired rights, of any benefits to which he is entitled?

Mr. Boland

No.

It simply refers to the case of a landlord who, because of the circumstances, was in a position to enforce unfair and unreasonable conditions?

On the original lessee.

Mr. Boland

That is what it means. The decision of the Supreme Court was not unanimous and one of the judges said that there seemed to be a flaw in the Act. We are, therefore, on safe ground. Although judgment was given against the lessee, one of the judges, who was in the majority, said that, in his opinion, there was a flaw in the Act.

Amendment agreed to.
Section 3, as amended, agreed to.
LONG TITLE.

Mr. Boland

I move amendment No. 6:—

In line 14, before the word "section", to insert the words "and extend".

This amendment will make the title read "... to amend and extend ...". It is clear that we have extended the Act somewhat and, accordingly, the title requires amendment.

Amendment agreed to.
Amendment No. 7 not moved.
Title, as amended, agreed to.
Bill reported with amendments.

When is it proposed to take the Report Stage?

Mr. Boland

If there is no objection, I should like to have it taken now.

This Bill has been hanging fire a long time and we have no objection to the remaining stages being taken now.

Bill received for final consideration and passed.

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