Dáil Éireann debate -
Wednesday, 14 Nov 1945

Vol. 98 No. 9

Elections to Seanad Eireann. - Rent Restrictions Bill, 1944— Committee (Resumed).

SECTION 27.

Mr. Coogan

I move amendment No. 72:—

To delete from the word "the" where it occurs secondly in line 14 to the end of the paragraph, line 16, and substitute therefor the following words:—

"the expression `small premises' means controlled premises which are situate in an appointed area being a county borough or the borough of Dun Laoghaire the rateable valuation whereof does not exceed £10 and which are situate in an appointed area elsewhere than in a county borough or the borough of Dun Laoghaire and the rateable valuation whereof does not exceed in amount such sum as the Minister may from time to time by prescribed regulations made under this Act fix or determine".

The purpose of this amendment is to direct attention to a situation which may arise when the Minister comes to extend the provisions of the Act outside the county boroughs. I want to bring to his notice by way of this amendment the position which obtains in small towns, and, for that matter, large towns throughout the country. There are many towns where the rateable valuation of business premises is exceedingly low and profitable business concerns are carried on in such premises. It would be well to have some power in the Minister by which he could fix the valuation for particular premises when he comes to extend the operations of the Act outside the county boroughs. I know several businesses carried on in small villages and towns where, I am sure—I have not the precise figures—the rateable valuation of the premises does not exceed £10. I doubt if it is the Minister's intention that these people who are engaged in profitable business should be treated, as it were, as poor persons.

Mr. Boland

I am prepared to consider bringing in an amendment on Report Stage to cover that point, not in exactly the same words as the Deputy's amendment. I see the point and I will look into it.

Amendment, by leave, withdrawn.

Amendment No. 73 not moved.

Mr. Boland

I move amendment No. 74:—

In line 14 to delete the words "controlled premises" and insert in lieu thereof the words "controlled (1923 Act) premises".

The effect of this amendment is to restrict the application of Part III, that is the Part dealing with small premises, to 1923 Act cases. As I think I explained on Second Reading, my main object was to deal with the tenement dweller. I know that in the £10 valuation class and perhaps a little under that valuation there are premises, perhaps, small houses, which are occupied by people who do not require the same protection and facilities as it is proposed to give the poorer dwellers in tenement houses. If we restrict the application of this Part to 1923 Act cases, we will be eliminating the possibility of that type of house coming in, that is, the more recently constructed houses which are occupied by people who are in a better position than those living in tenement houses. As everyone realises, special facilities are given here which I think ought only be given to the very poor who occupy tenement houses. I think the amendment ought to commend itself to the House.

Mr. M. O'Sullivan

What would the effect be? Would it mean that the question of statutory tenants would have to be decided? Are you making a discrimination between 1923 controlled houses and houses controlled by the Order of 1944?

Mr. Boland

Of course the non-1923 Act cases are controlled in the ordinary way. The Emergency Powers Order cases were incorporated under Part II. They are controlled already in the ordinary way. As the Deputy realises, there are special facilities given here, such as applications being heard in private. I do not want them to apply to these other houses, but these houses are subject to rent restrictions under Part II of the Bill.

Mr. M. O'Sullivan

Can the Minister envisage the situation arising in any of the tenement areas here where those who might be aggrieved could not now proceed under the Bill simply because of the amendment the Minister is introducing at this stage?

Mr. Boland

I cannot. As a matter of fact, I think in the two or three cases we have mentioned already there was some heat engendered unnecessarily. There was the question of the Associated Properties and the Artisan Dwellings Co. We are all aware that houses of that type are occupied by people who are better off than those who are forced to live in tenements. They are covered already in Part II, but they do not get the special facilities proposed to be given to those other poor people in tenement houses. I do not anticipate any case of hardship. I think we will cover them all if you agree to what I am proposing here. I think it is a big improvement.

Amendment put and agreed to.

Mr. M. O'Sullivan

I move amendment No. 75:—

In line 15 to delete the word "ten" and substitute the word "fifteen".

The beneficial clauses of this Bill are so obvious and the Minister's intention to include as wide a scale of tenants who may be suffering is so clear that I am wondering whether his ceiling figure of £10 is correct. I am aware that a number of these premises would run £1, £2 or £3 over that valuation. I fixed the figure at £15 in order to include a number of cases which, I think, the demarcation line of £10 will rule out in the hope that the Minister will, in any event, raise the figure of £10 a little. There are a number of flats situated at the very top of houses throughout this city. I know one case on the north side where a flat at the very top of a house is rated at £15 valuation and is occupied by people whom, it might be said, we are anxious to cater for here. There are obviously other cases of that kind. The intention of the amendment is to ensure that a large section will not be ruled out by the figure of £10.

Mr. Boland

From inquiries I have made I am satisfied that the vast majority of the people concerned will be dealt with under the £10 valuation figure. In fact, I think it is a bit too high. People with flats of £15 valuation are scarcely tenement dwellers who require to be helped and to whom special facilities should be given. Deputy O'Sullivan may know whether they are or not. I imagine that people who occupy a flat valued at that sum would scarcely be very poor. After all, they are covered by the ordinary rent restrictions. I do not want to give people who do not require it the help and extra protection which are being given in this particular Part. If anything, £10 valuation is on the high side. The Deputy knows that we have made definite provision for a separate valuation of each letting. I am providing for that further on. I think a flat of £15 valuation would scarcely be occupied by people who require the extra protection this Part gives. Consequently, I do not think the Deputy ought to press the amendment.

Amendment, by leave, withdrawn.

Section 27, as amended, agreed to.

SECTION 28.

Mr. M. O'Sullivan

I think the point of amendment No. 76 has been met by the Minister. The Minister will recollect that, on the Second Stage, it was not clear what machinery will be devised for the segregation of the premises or flats so as to come within the £10 valuation. I think, however, he has provided for that.

Mr. Boland

The amendment is not necessary.

Amendment No.76 not moved.

Mr. Coogan

I move amendment No. 77:—

In sub-section (2), line 24, before the word "particulars" to insert the word "prescribed".

This is a very small point. It is to avoid having all sorts of particulars collected by District Court clerks. It is to prevent miscellaneous particulars, which may not be pertinent to an application, having to be taken by the clerk if the applicant insists.

Mr. Boland

I think the amendment would make for more formality and rigidity than is intended. The idea was that a person may not be familiar with forms and that the court clerk should get from the person concerned the particulars with regard to the tenement. If we prescribe the kind of particulars that should be given, it might make for a certain amount of rigidity. I would rather leave it wider and more open, so that the clerk can ascertain from the tenant exactly what the position is.

Mr. Coogan

It is to make the administration uniform. If certain particulars were prescribed, it would perhaps help the tenant and also the clerical staff. What I had in mind was that only certain particulars should be taken, such as the rent, the nature of tenancy, the type and size of the premises, the situation, age and condition of the premises, the name of the landlord, the poor law valuation, and who pays the rates. Otherwise you might have all sorts of miscellaneous particulars being furnished, and it would be impossible for a clerk to deal with them in an efficient manner.

Mr. Boland

I believe that the position is that, if it is necessary, the rule-making committee can provide for that. It is not necessary to do it here. It is better not to put it in the Bill. If it is found necessary, the Rules of Court will cover it.

Mr. Coogan

Would it not be simpler for the applicants?

Mr. Boland

That is what I am advised on the matter. I will look into it again and, if necessary, I will do it. I am advised, however, that it is better to leave it to the court officials.

Amendment, by leave, withdrawn.

Mr. Coogan

I move amendment No. 78:—

Before sub-section (3) to insert a new sub-section as follows:—

(3) A person acting as agent for a tenant in accordance with the next preceding sub-section shall not as a condition of his acting as such agent require the payment of any remuneration or fees or other like sum or the giving of any pecuniary or other consideration and a person requiring any such payment or other consideration in contravention of this section shall be guilty of an offence, and shall on summary conviction thereof, be liable to a fine not exceeding £5, and the court by whom he is convicted may order the amount paid or the value of the consideration to be repaid to the person by whom the payment or other consideration was made or given.

This is to prevent the hob lawyer appearing on the scene or the mischievous gentleman who is perhaps imposing himself on poor persons as interested in their welfare and who organises some sort of association to protect their rights and get applications organised and presented to the court. I think the Minister has something in amendment No. 79 that more or less meets my amendment.

An Leas-Cheann Comhairle

Amendments Nos. 78, 79, 79a and 79b can be discussed together.

Mr. Coogan

It is really to prevent that type of mischievous person imposing himself on these people for a consideration. I think the Minister's amendment meets my point.

Mr. M. O'Sullivan

I would like to deal with one point in the Minister's amendment, as I have an amendment to it. I cannot understand why the Minister has decided to exclude the designation of solicitor from the list of persons to be "outside the Pale" in this respect. I agree with the protection given by the Minister, which is absolutely desirable, as Deputy Coogan says, to prevent undesirable individuals who, seeing the going fairly good, may attempt to exploit poor people. Seeing that the earlier stages of this procedure are confined to the elementary process of going before the District Court clerk, I see no good reason for cutting out solicitors in this particular clause. There is no professional work involved. The individuals will be bound to find—as they have found— social organisations and public men who will carry out this elementary duty. Certainly, there should be no need for a special prerogative for solicitors at this stage. There will be plenty of room for them afterwards.

Mr. Boland

I imagine that not many of these people would be able to afford to employ solicitors, but I do not think I would be justified in excluding solicitors, whose business it is and whose profession it is to act if people want to employ them. I provide that those employed must be recognised legal practitioners. I would be going too far if I did not make it possible for them to be heard, though I do not anticipate that many of them will be employed by the type of person with whom we are concerned. I would not be entitled to rule out those whose profession it is to represent clients in court.

Mr. O'Sullivan

If the object of the Minister were confined within those four walls, we could scarcely grumble at it.

Mr. Boland

If one of these people wants to employ a solicitor, we cannot prevent it. The solicitor has a regular way of checking his costs, but some of those other people have not and we do not know what they are doing. It would be a reflection on the solicitors' profession if I did not make provision for them in a matter which is really part of their business.

Mr. O'Sullivan

The rest of the amendment is excellent, as it affords the protection we feel should be there, where penal provisions are being imposed.

Amendment, by leave, withdrawn.

Mr. Boland

I move amendment No. 79:—

To add at the end of the section the following sub-section:—

(4) Where a person, not being a solicitor, acts as agent for any person on an application under this section directly or indirectly for or in expectation of reward, he shall be guilty of an offence under this sub-section and shall, without prejudice to his liability to be convicted of any other offence of which he may be guilty, be liable on summary conviction thereof to a fine not exceeding £100 or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both such fine and imprisonment.

Amendment No. 79a (amendment to amendment No. 79) not moved.

Amendment No. 79 agreed to.

Amendment No. 79b not moved.

Section 27, as amended, agreed to.

Section 28 agreed to.

SECTION 29.

Mr. Boland

I move amendment No. 80:—

To delete sub-section (1) and to insert in lieu thereof the following sub-section:—

(1) Every application referred to a district justice under Section 28 of this Act shall be dealt with by him as follows:—

(a) he shall deal with the application privately,

(b) in case it appears to him—

(i) that the premises are small premises to which Section 8 of this Act applies, or

(ii) that the premises are small premises to which Section 9 of this applies, the basic rent whereof has already been determined by the court, and that the amount of that basic rent is ascertainable,

he may by order determine provisionally—

(I) the lawful additions to the basic rent of the premises, and

(II) the lawful rent (in this part referred to as "the provisional rent") of the premises;

(c) in case it appears to him that the premises are small premises to which paragraph (b) of this sub-section does not apply, he may by order determine provisionally—

(i) the basic rent of the premises under Section 9 of this Act,

(ii) the lawful additions to the basic rent of the premises, and

(iii) the lawful rent (in this Part referred to as "the provisional rent") of the premises;

(d) if the premises are not separately valued under the Valuation Acts, he may for the purposes of this Act apportion to the premises such part as he thinks proper at the rateable valuation of the property in which the premises are comprised.

This amendment proposes to delete sub-section (1) of Section 29 and to substitute an entirely new sub-section. It is the first of a number of amendments which, it is hoped, will considerably improve Part III of the Bill.

The main objection that might be urged against the existing provisions of Section 29 is that the provisional rent which the justice would fix under a provisional order must obviously be an inadequate rent, since it would not include anything for rates or repairs. Despite this, under sub-section (2) of Section 30, that inadequate rent would become immediately the rent to be paid for the premises and would remain the rent to be paid until either the landlord had come into court under Section 31 or, in default of his so doing, the provisions of Section 32 had come into play. This would be, on the one hand, unfair to the landlord and, on the other hand, would be apt to cause confusion and possibly dissatisfaction among tenants when they would be told after a month or two that the provisional rent which they had been paying since the provisional order was made was too low and would have to be increased to bring it up to the strictly lawful rent.

Another serious objection is that there would be a very strong inducement for landlords in every case to come into court to try to upset prosional orders, since the rent (even though it was only provisional and temporary) which they were obliged to accept under such an order was obviously too low and did not even include provision for the rates, not to mention repairs.

The provisions of the new sub-section which the amendment proposes to insert have been framed to meet all these objections. The main feature of the new provisions is that in fixing the rent under a provisional order, the justice first settles the basic rent, when it is not already known, then determines the lawful additions and finally shows in his order the full lawful rent payable. This scheme has obvious advantages: the provisional order makes the position quite clear to both landlord and tenant and, since the rent fixed under it will be a far closer approximation to the strictly lawful rent than a provisional rent fixed under the existing sub-section could possibly be, there is a far better prospect that the landlord will accept the position and that thereby the trouble and expense which applications under Section 31 would entail for everybody concerned—the justice, his staff and the tenant as well as the landlord—will be eliminated or reduced to a large extent.

The new provisions have also the advantage that they provide a far more precise and scientific method for dealing with cases under Part III. Thus, if it is disclosed, in the course of the inquiries which the justice causes to be made, that the case is a Section 8 case, that is, one in which the standard rent had been fixed by the court under the 1923 Act, then all the justice has to do is to take that standard rent, add 20 or 25 per cent. (as the case may be) to it in order to arrive at the true basic rent, determine the lawful additions and so fix the full rent to be paid. The same procedure will be applicable if the case is a Section 9 case in which the basic rent has already been determined by the court. This procedure is provided for in paragraph (b) of the proposed new sub-section. The register of standard and basic rents which it is proposed to have compiled under the proposed amendment to Section 54 should be of considerable assistance to the Justice in finding out whether a case comes within paragraph (b) and, if it does, what the standard or basic rent of the premises is.

If the case does not come within paragraph (b), the justice deals with it under paragraph (c) by first determining the basic rent in accordance with the provisions of Section 9 (as now amended), then determining the lawful additions and finally the lawful rent to be fixed as the provisional rent.

The provisions of paragraphs (b) and (c) have the further merit that, in the matter of the recovery of excess payments of rent, the cases fall automatically into their proper category and the question whether or not there is a right to recover overpayments depends on the provisions of the Bill generally applicable in that matter. Under the existing draft it had been necessary to deal with the matter in an arbitrary fashion in Section 32 (1) (c) by deeming every case to be a Section 8 case, thus giving a right to recover overpayments in cases in which such a right would not exist if the case had been dealt with by proceedings in the ordinary way under Part II of the Bill.

Finally, paragraph (c) of the new sub-section gives the justice the power, which it is clearly necessary that he should have, to apportion the rateable valuation of the property which comprises any premises which are the subject of proceedings before him. This provision is necessary now for the particular reason that the justice in the process of making his provisional order is required to determine the lawful additions. One lawful addition will be that in respect of rates and, in order that the justice may be able to determine the amount of the rates attributable to, say, a single room, he must be able to apportion the valuation of the whole house. The provision for apportionment will, moreover, it is hoped, meet certain criticisms which were levelled at Part III by some Deputies on the Second Reading of the Bill. A number of Deputies were doubtful, as the Bill originally stood, whether the Justice had the right to apportion, but I think it is made quite definite by this amendment. I think the amendment will make a very big difference and improve that part of the Bill very much.

Mr. Coogan

The amendment, as I read it, entails a tremendous amount of work upon the District Court staffs. An application will be heard in the court and, in practice, it will be the duty of the clerk to prepare the material for the disposal of the application by the district justice. I can visualise a situation arising in a large town where the district justice's office will be inundated with applications. In view of all the calculations which the clerk will have to make, and all the items which he will have to take into consideration to decide the proper category into which a particular application may fall, I can see a tremendous increase in the work of the District Court offices, particularly in large towns and cities.

The Bill, as at present framed, does not set up any machinery for dealing with this extra work. Already the District Court clerks are whole-time officers. Some of them are on very small salaries. The Minister is aware that the District Court clerks are very dissatisfied with their salaries and allowances. They are prevented by law from embarking on any other business; in fact, a penalty will be imposed on them by law if they embark on any particular business. Under this Bill we will throw a tremendous amount of work on these officials. I wonder if the Minister has considered whether it is equitable to throw any extra work on them in view of their miserable salaries and allowances. I cannot see any clerk in a given town such as Waterford or Kilkenny being able to cope with this work. I suggest the matter should be considered from this angle before we approve the section.

Mr. O'Connor

I consider that the amendment suggested by the Minister will greatly reduce the volume of work that will go to the District Court under this part of the Bill. It makes it clear that the district justice will determine the basic rent in accordance with Sections 8 and 9. That was not quite clear in the Bill as originally drafted. It is now quite clear and I would remind Deputy Coogan that when the district justice is given the power to fix the basic rent and make lawful additions if necessary, it will mean that tenants will get the benefit of the Act under this part, but they will not get a reduction greater than under any other part. The effect will be that a greater number of tenants will simply have notice served on the landlord and a greater number of rents will be arranged by negotiation. I do not think the volume of work that will go to the District Court will be anything as great as it would have been if the Bill remained in its original condition.

Mr. Costello

I do not see the slightest necessity for or advantage of this elaborate procedure in the Bill. I made the point that I wished to make on this part of the Bill on the Second Reading. I asked where the scheme came from and I do not think I was told. Apparently the scheme was not properly thought out because it has had to be amended very drastically in the way now suggested. One very simple method of doing all this would be an ordinary summons before a district justice by a tenant and let the district justice determine the matter in open court between the parties for the first and last time. Why there should be any necessity to go into the District Court or into the clerk privately and have another hearing before a district justice, with possibly a further appeal, I cannot understand.

There is nothing elaborate about the procedure I suggested—an ordinary summons for the landlord to appear in the District Court in order to have a standard rent determined. That can be a printed form. The parties can negotiate outside court. If they cannot agree the issue will be knit to a narrow point which can be determined in a few minutes by the district justice with all the material available before him. He will make these private investigations and determinations without any proper assistance and in 99 per cent. of the cases there are bound to be hearings before the District Court again. I cannot see any justification for this part of the Bill.

Mr. Boland

I do not know whether there will be any rush to avail of the facilities granted to poor tenants under this part of the Bill, but if there happens to be a big rush and the clerks and the district justices are not in a position to deal with them, we shall have to provide some help for them. I do not know whether there is anything in the statements made that there are people in tenements who are paying big rents and who will be afraid or nervous to go to court and, therefore, will not avail of the benefits to be obtained under this legislation. I do not know if that will be the case.

We are told that, although the tenants can issue a summons to the landlord, they will not be prepared to do so. That may or may not be true. If it is true, I want to give them an easier way of doing it. As to where this emanated from, I do not think that is a matter for Deputy Costello or anybody else. You may take it that it came from me. We have to get the best possible advice and we have sought advice from those who know a good deal about this problem. We have sought various opinions and tried to get an easier way for these people to deal with their landlords, if they are in the position in which I am told some of them are. As to who told us, or where it emanated from, that does not arise.

I admit that this is a new thing. It may not work, but it will not fail for want of staff. I am quite satisfied that once the Minister for Finance agreed to this provision he will not deny any help that may be necessary if there is a big rush. We have to see whether there will be such a big rush to avail of the provisions of this section. We do not know about that. Our anxiety is to help the people who, we are told, will not go into court for the reasons I have set out. They may be afraid to do it, afraid of costs or afraid of going into a public court. We are providing what is undoubtedly a new way, but I think it is worth a trial. I will not say that this is the most satisfactory thing that could be devised but it is as good a way as we could devise. I admit we found flaws in the section as it stood and as a result of the debate on Second Reading we have tried to meet the various points raised. The whole object of Parliament is to try to improve any draft brought in. We think our original proposal is considerably improved in this present proposal and I suggest it is worth giving it a trial.

Mr. Costello

My objection to this scheme is not based primarily or principally upon the volume of work that it may throw upon the District Court. That is a matter that may affect the taxpayer, but if it tends to the public good then there will be no objection from me. My objection is one on principle. I do not ask out of mere curiosity where this scheme emanated from. It is no satisfactory answer at all events for the Minister to say it is there anyway.

Mr. Boland

Coming from me.

Mr. Costello

Coming from the Minister, but that is merely a statement that the Government says: "The Minister on his Ministerial responsibility is bringing this in and that is all we are going to tell you about it." That is certainly a new angle on democratic government. I asked where it emanated from in order to see what experience and what knowledge the persons responsible for the scheme had and whether they had any authority to make it. The working of a scheme of this kind put forward tentatively for the first time would largely depend on whether or not the people responsible for devising it had any experience or knew what they were talking about. It was for that purpose, and for no other, that I asked the question. I want to know the authority behind it.

I know that the Minister stands over it, that it is his responsibility, but merely to say to Deputies who make a point against it: "It is there anyway", is certainly a new way of meeting Parliamentary criticism. I presume it is a fact we have to face that we are to be told when we debate a Bill in the Dáil and raise any objection: "It is there and you may do what you like about it", but from the point of view of the working of a deliberative assembly, it is a new light on the Ministerial attitude.

I have criticised this scheme because I think it is entirely too elaborate and wholly unnecessary. I do not think it is an easy scheme. If there is a problem in relation to people being afraid to go into court to have their rents fixed—and I do not know that there is such a problem, though there may be some such people—there are any number of solicitors and any number of charitable organisations, including the Society of St. Vincent de Paul, who are prepared to help poor tenants in the matter. But leaving that aside, the point I am making is that this is entirely over-elaborate and is not an easy method. It does not get over the difficulty which the Minister says he is instructed exists, or may exist, that people will not go into court. They have to go into court under this provision. They have to stand in a queue at the District Court clerk's office and face an appeal by the landlord in court. How does that get over the difficulty?

The suggestion I made was that they should go into the District Court office and get a printed form of two lines: "You are hereby directed to attend at the District Court on such and such a date to have the standard rent determined in respect of such and such premises". Nothing more is necessary. The landlord has to come in and have it determined by the district justice in a few moments. That is a simple, easy scheme, and why we should have all this elaboration with a consequent possible additional burden on the taxpayer, I entirely fail to see.

Amendment put and declared carried.

An Leas-Cheann Comhairle

Amendments Nos. 81, 82 and 83 cannot be moved now, but they can be brought on again on Report Stage.

Mr. M. O'Sullivan

Are you ruling amendment No. 81 out of order?

An Leas-Cheann Comhairle

Not exactly. The carrying of amendment No. 80 puts it out of court at the moment, but the Deputy can bring it up on the next stage.

Mr. M. O'Sullivan

My amendments would still apply to the section, as amended.

An Leas-Cheann Comhairle

The Deputy will have to put them in another form for the next stage.

Mr. M. O'Sullivan

Does the Minister agree?

Mr. Boland

I accept in principle.

Amendments Nos. 81, 82 and 83 not moved.

Mr. Boland

I move amendment No. 84:—

In sub-section (2), line 50, to delete the words "this section" and to insert in lieu thereof the words "Section 28 of this Act".

This amendment is designed to correct a slight mistake in the existing text. The reference in sub-section (2) of Section 29 should clearly be to an application under Section 28 and not an application under Section 29.

Amendment agreed to.

Section 29, as amended, agreed to.

SECTION 30.

Mr. M. O'Sullivan

I move amendment No. 85:—

Before sub-section (2), in page 17, to insert the following new subsections:—

(2) Any document required by this section to be served on the landlord of premises to which this section applies may be served by—

(a) handing it to the landlord or his agent; or

(b) leaving it at the last known address of the landlord or his agent; or

(c) sending it by post in a prepaid registered letter addressed to the landlord or his agent at the last known address of such landlord or agent.

(3) Any document required by this section to be served on the tenant of premises to which this section applies may be served by—

(a) handing it to the tenant; or

(b) leaving it at the premises in respect of which an application has been made under Section 28 of this Act; or

(c) sending it by post in a prepaid registered letter addressed to the tenant at his last known address.

This amendment is self-explanatory. I merely set out what I thought the Minister might have embodied in the section, that is, the form of service. Deputy Coogan suggested earlier that we might have detailed particulars in a case of this kind, and I have put down a series of regulations which I believe should be observed and which should be made public. The section in the Bill is not quite clear as to the procedure to be followed.

Mr. Boland

I will consider that before the Report Stage.

Mr. O'Connor

Might I remind the Deputy that the matter of service is covered by particular rules and there is a rule-making committee which will amend the rules, if it is necessary, as a result of the Bill being passed?

Amendment, by leave, withdrawn.

Section 30 agreed to.

SECTION 31.

Mr. Boland

I move amendment No. 86:—

To delete sub-section (1) and insert in lieu thereof the following sub-section:—

(1) The landlord of any premises in respect of which a provisional order has been made may, within three months after the service of a copy of the provisional order upon him or his agent, apply to the District Court to revoke or modify the terms of the provisional order and thereupon the following provisions shall have effect:—

(a) if on the hearing of the application it appears to the court—

(i) that the premises are not small premises, or

(ii) that the premises are small premises to which section 8 of this Act applies, or

(iii) that the premises are small premises to which Section 9 of this Act applies, the basic rent whereof has already been determined by the court, and that the amount of that basic rent is ascertainable,

the court shall revoke the provisional order with effect retrospectively from the date of the making thereof;

(b) in any other case, the court may as it thinks proper, by order—

(i) confirm the terms of the provisional order without modification, or

(ii) confirm the terms of the provisional order with such modifications as the circumstances may require;

(c) if the terms of the provisional order are confirmed, whether with or without modification, then, as on and from the making of the confirming order, notwithstanding anything in any other provision of this Act,—

(i) the said confirming order shall have effect as a final determination by the Court of the matters to which the said confirming order relates,

(ii) the provisional order shall cease to be in force, and

(iii) for the purpose of the application of Section 20 of this Act the tenant shall be deemed to have entered into an agreement with the landlord to pay in respect of the premises a rent equal to the lawful rent of the premises as determined by the confirming order;

(d) on the hearing of the application the court may make an order for the payment, in such manner as the court may direct, of any amount due by either party to the other in relation to the premises, whether on account of rent or under any provision of this Act.

This amendment is largely consequential on the amendment (No. 80) of Section 29, which we have just discussed. The new provisions differ from the provisions in the existing sub-section (1) mainly in that, since the Justice must under the new Section 29 determine a provisional basic rent, all that is required on an application by the landlord under Section 31 is that that provisional basic rent, and, of course, the provisional lawful additions, should be either confirmed or varied, according to the evidence that is adduced on the hearing of the landlord's application. Paragraph (b) of the new sub-section provides accordingly.

Under paragraph (c), the confirming order, whether made with or without modification, has effect as a final determination by the court of the matters to which it relates and the provisional order thereupon ceases to be in force. The object of sub-paragraph (iii) is merely to restore, as it were, the normal landlord and tenant relationship and so bring Section 20 into play again, so that such adjustments as may be necessary from time to time in the amount of the rent may be made in accordance with the provisions of that section. If, for example, the rates are increased, the landlord will be able to serve a notice on the tenant increasing the rent accordingly, while, in the converse case, the tenant can serve a notice reducing the rent in the event of a fall in the rates.

On the landlord's application under Section 31 for the revocation or modification of the provisional order, the court must revoke the order if it is shown (a) that the premises are not, in fact, "small premises", or (b) that the case is really a Section 8 case, or (c) if the case is a Section 9 case, that the basic rent has already been determined by the court. These provisions of paragraph (a) of the new sub-section are substantially the same as the provisions of paragraph (a) in the present text.

A minor change which the amendment effects is an extension of from one month to three months of the time within which a landlord may apply to the court under Section 31 for revocation or modification of the provisional order. It is considered fair that the landlord should be given a reasonable time within which to take action. The reason why the period was limited to one month in the existing text was that, since the provisional rent under Section 29 would have been, as I have already explained, an inadequate rent, it was desired to limit as much as possible the maximum period during which that inadequate rent would be payable. With the new provisions of Section 29, that reason for restricting the period no longer exists.

Amendment agreed to.

Amendments Nos. 86a and 86b not moved.

Amendments Nos. 87, 88 and 89 not moved.

Question proposed: "That Section 31, as amended, stand part of the Bill."

Mr. M. O'Sullivan

There is just one point I wish to raise on this Section. The Ceann Comhairle intimated to me that my amendments Nos. 87, 88 and 89 were not in order inasmuch as the effect of them would be to impose a charge on public funds. The point that I want to raise is this, that it is only on appeal to the Circuit Court that costs can be certified so far as the tenant is concerned. Apparently, the District Court has no jurisdiction as regards costs. The section only refers to costs. I would point out to the Minister that a tenant might have to bear a good deal of expense by bringing a valuer or a witness to court. There is no provision in the section to enable him to recover these expenses. I regard that as a serious defect in the Bill.

When the Bill becomes law landlords, realising that there will be an overriding period of six years during which overpayments may be recovered, may argue to themselves that, years hence, they may be faced with an accumulation of arrears and decide to take the initiative by going into court themselves. In the first instance they may go to the District Court, where there will be a full-dress hearing. The tenant will have to employ a solicitor and may bring forward witnesses. All that will have to be gone over if there is an appeal to the Circuit Court. But my point is that, if the initiative is taken by the landlord, the tenant will not be able to recover his expenses. That is a serious matter and I wonder if it has been brought to the Minister's notice.

Mr. Cosgrave

I think that what Deputy O'Sullivan has said is true, that while the normal procedure under this part of the Bill will be for the tenant to apply in the District Court, if the landlord takes the initiative in the Circuit Court, there is no protection in the Bill for the tenant's expenses. In a number of cases, due to their anxiety to avoid the accumulation of arrears, landlords may take the initiative in the Circuit Court and even appeal from it to the High Court. In title cases there is nothing to prevent landlords from taking the initiative in the Circuit Court.

Mr. O'Connor

It is only the tenant who can make the application under Part III. I do not think the landlord can do it.

Mr. Cosgrave

There is nothing to prevent a landlord making application to get a rent fixed. If the landlord starts proceedings, which may become protracted, there is no protection in the Bill as it stands for the tenant's expenses.

Mr. Boland

As Deputy O'Connor has pointed out it is the tenant who under Part III makes the first move. He brings an application to get his rent reduced because he says he is paying too much rent. As the proceedings have been initiated by the tenant——

Mr. Cosgrave

Deputy O'Sullivan has argued the case where the proceedings have been initiated by the landlord.

Mr. Boland

The landlord cannot initiate them under this part of the Bill. He can under other parts of it.

Mr. Cosgrave

But since there is no limit in title cases there is nothing to prevent the landlord from initiating proceedings in the Circuit Court.

Mr. Boland

But under this part of the Bill the initiative is taken by the tenant because he thinks he is paying too much rent.

Mr. Cosgrave

Not necessarily under this part.

Mr. Boland

As regards the other part of the Bill there is quite a different procedure. The rights of landlord and tenant are the same as they were in the Rent Restrictions Acts except for this provision.

Mr. Cosgrave

What will happen in the case of a poor tenant with a house the valuation of which is less than £10? Supposing in that case the landlord takes the initiative? This section is designed to protect the tenant, but in a case such as I am putting the Bill as it stands will not protect the tenant for the simple reason that the landlord has got in first and taken the initiative.

Mr. M. O'Sullivan

Perhaps the Minister will agree to look into this.

Mr. Boland

I have looked into it and the position is clear to me. A tenant feels that he is paying too much rent and he brings his application to the District Court. That is a Part III case. The district justice, after hearing the case, is satisfied that the tenant is not paying too much. The tenant appeals from that decision. In that case I do not think he is entitled to any further help from the State. The district justice, after giving the case a fair hearing, has decided that his rent is a proper one. If such a tenant wants to go further with his case then that will be his own look out. We are not going to encourage tenants to appeal.

Mr. Cosgrave

I am afraid that we are not on the same point. As I have said, even though the valuation is under £10, there is nothing to prevent a landlord from starting proceedings in the Circuit Court. In the normal way the landlord would not be allowed more than District Court costs in the Circuit Court. In a case of that kind the tenant will have to pay the expenses and costs merely because the landlord has taken the initiative.

Mr. Coogan

What Deputy O'Sullivan has in mind is the case of a landlord taking the offensive, if you like, to torpedo Part III of the Bill by applying to the court to have a standard rent fixed. In such a case, when a tenant becomes aware of his rights under Part III of the Bill, he will have found that the landlord has already moved, and the tenant will then have to pay his costs. The object of Deputy O'Sullivan's amendments was to prevent that happening. It is hardly likely, but there is a possibility.

Mr. Boland

I will look into it further and try to cover the point.

Question put and agreed to.

SECTION 32.

Mr. Boland

I move amendment No. 90:—

In sub-section (1), page 17, lines 55 and 56, to delete the words "one month" and insert in lieu thereof the words "three months".

This amendment is consequential on the extension from one month to three months of the period within which a landlord, under Section 31, may apply for an order revoking or modifying a provisional order.

Amendment agreed to.

Mr. Boland

I move amendment No. 91:—

In sub-section (1), to delete paragraphs (a), (b), (c), (d) and (e) and insert in lieu thereof the following paragraphs:—

(a) the terms of the provisional order shall be deemed to have been confirmed by the District Court by order under sub-section (1) of Section 31 of this Act and the provisions of paragraph (c) of the said sub-section shall apply accordingly;

(b) an appeal shall not lie to the Circuit Court from a confirming order which is deemed to have been so made.

This also is consequential to a large extent on amendment No. 80 to Section 29 and amendment No. 86 to Section 31.

Section 32 makes provision for the case in which the landlord does not apply within three months in accordance with Section 31 to have the provisional order revoked or varied. The amendment proposes that in such a case the provisional order shall be deemed to have been confirmed under sub-section (1)—that is the new sub-section (1)—of Section 31 and paragraph (c) of that sub-section shall apply accordingly.

The provision at (b) in the amendment is entirely new. It seems reasonable to provide that, if the landlord has not availed of the provision of Section 31 to have the provisional order revoked or varied, he should not be allowed an appeal to the Circuit Court when that order is deemed to have been confirmed. So far as the tenant is concerned, Section 29 (2) deprives him of any right of appeal against a provisional order and there does not, therefore, seem to be any good reason why he should be allowed an appeal later on when the order is deemed to be confirmed in default of action by the landlord.

Mr. Cosgrave

In the event of the landlord appealing before the provisional order was confirmed, would paragraph (b) of amendment No. 91 preclude him from appealing then?

Mr. Boland

No, not if he comes in time but, if he lets a confirming order be made, naturally he should not be allowed to appeal then.

Amendment agreed to.

Amendment No. 92 not moved.

Section 32, as amended, agreed to.

Sections 33 and 34 agreed to.

SECTION 35.

Question proposed: "That Section 35 stand part of the Bill."

Mr. Coogan

The Minister may appoint such and so many persons. There is no limit as to the number of persons except what the Minister for Finance may impose.

Mr. Boland

He will impose restrictions all right.

Mr. Coogan

No qualifications or experience or conditions are set out governing the type of persons who will be appointed as District Court valuers. There may be a difficulty in the present situation in prescribing conditions or qualifications, but it occurred to me that it might be wise to have some sort of qualifications set out in the section.

Mr. Boland

We did not think it advisable to do that. We thought we would get the best people we could.

Mr. Cosgrave

Who have you in mind—auctioneers?

Mr. Boland

In some cases, yes. Auctioneers may be the most experienced people we could get for the work —auctioneers, house agents and people like that.

Question agreed to.

SECTION 36.

Mr. Boland

I move amendment No. 93:—

To substitute in sub-section (1), line 6, and in sub-section (2), line 13, the words "other small premises" for the words "comparable premises".

It will be recalled that in amending Section 9 (1), the expression "comparable premises" was dropped. It is thought desirable to delete the same expression where it occurs in subsections (1) and (2) of Section 36. The amendment proposes to substitute the words "other small premises".

Mr. Cosgrave

Would that take in only premises of £10 valuation?

Mr. Boland

Yes.

Amendment agreed to.

Section 36, as amended, agreed to.

SECTION 37.

Mr. Cosgrave

I move amendment No. 94:—

Before Section 37 but in Part III of the Bill to insert a new section as follows:—

In an appeal from the decision of a district justice in this part of this Act a District Court valuer or special valuer who has given evidence in such case shall not give evidence for either party on appeal.

I move this amendment because it is possible that if a valuer gives evidence in the District Court and if he is brought as what may be regarded an expert witness on appeal, some inducements may be held out by either party or both parties to give a particular kind of evidence. If a person who gives evidence in the District Court has a promise of subsequent fee in the event of an appeal, which is also more or less guaranteed, he may feel disposed to give evidence which would assist the particular party appealing. These valuers are primarily officers of the court and not witnesses for either party. Whatever evidence they have given will still be available, but in any case I think it would be better to get fresh evidence on appeal.

Mr. Sheldon

Surely if the valuers change their evidence in the Circuit Court it will be torn in bits by the opposition counsel.

Mr. O'Connor

They often do that.

Mr. Cosgrave

That happens. You have two valuers in most cases, one giving evidence for the landlord and one for the tenant. In this case the valuers are appointed by the Minister to assist the District Court. If there is an appeal, there may be bribery beforehand so that they will give particular evidence below——

Mr. Sheldon

And substantiate it in a higher court?

Mr. Boland

I do not think the Deputy has made a case. I think it would be wrong altogether not to give the other court the benefit of the evidence and to put the valuer up for cross-examination. I think it would be altogether wrong not to have him there. He might even be subpoenaed to give the reason why he fixed such a valuation. I do not think there is any case for excluding him. As to his reliability, I think it would be up to whoever appoints him to see that the right type of person would be appointed. When a valuer has been employed, I imagine he would be the most important witness that could be called.

Mr. Cosgrave

Would the Minister meet it this way: that the fee would be payable out of State funds rather than by either party? There is the question that he may get a fee if he gives evidence in a particular way in the District Court.

Mr. Boland

It is very hard to deal with that, if a man is of that type.

Mr. Cosgrave

It might happen.

Mr. Boland

The amendment is that he should not give evidence.

Mr. Cosgrave

For either party.

Mr. Sheldon

Could you lay down rules for a Circuit Court retricting it?

Mr. Cosgrave

You could do anything if you put it in the Bill.

Mr. Boland

It would not be desirable.

Mr. Coogan

Could you not make it a condition of his employment that, if he was employed as a permanent District Court valuer, he should not take part otherwise in a rents case?

Mr. Boland

The Circuit Court judge might say that he would like to hear the valuer who was employed in the other court. He might want to have him examined.

Mr. Cosgrave

It would be better to have the judge call him.

Mr. Boland

The amendment is the other way.

Mr. Cosgrave

I can change my amendment. What I want to prevent is a valuer giving evidence in the District Court and then some inducement being offered to him to give evidence so that the parties to the appeal would have it.

Mr. Boland

On that point, as an ordinary man of experience I would say that, if he did it once, he would not be likely to be employed again. He would be very foolish to do it. It would be easy to see what was happening. He would probably lose his job as a valuer if he changed about like that, unless it was clear that he made a mistake or something like that.

Mr. M. O'Sullivan

Will the appointments be on a permanent basis or will you draw them from a rota?

Mr. Boland

In Dublin, a number may be a sort of quasi-permanent. If we were satisfied that we had the right people, we would probably keep them on. They would have something to lose by not playing the game.

Mr. Cosgrave

Probably it would not arise so much in Dublin as in the country.

Mr. Boland

For the time being, this applies only to the county boroughs. I do not think the amendment is a desirable one.

Mr. Sheldon

When the Minister puts it that way, would it not be desirable to look into Deputy Cosgrave's amendment so as to prevent anyone who was a quasi-permanent official of the District Court from being engaged to give evidence for either party in a higher court? What the Deputy wants to prevent is that a State valuer in the District Court will not become a private valuer in a higher court.

Mr. Moran

If a valuer gives evidence in the District Court, he will be summoned by both sides and will give evidence which the Circuit Court judge will want to hear.

Mr. Cosgrave

There is nothing to prevent his being offered an inducement by a party before the District Court who contemplates an appeal.

Mr. Moran

The same inducement is open to a doctor in an assault case in the District Court, that the other side can buy him to change his evidence. On the other hand, it is not suggested that any doctor would do it. The same thing would apply to this proposed valuer.

Mr. Cosgrave

There would probably be two doctors giving evidence, one for the plaintiff and one for the defendant.

Amendment, by leave, withdrawn.

Mr. M. O'Sullivan

I move amendment No. 95:—

In sub-section (1), page 19, line 37, before the word "whether" to insert the following words: "other than an obligation prohibiting the tenant from permitting children members of his family to reside with him in such premises."

An Ceann Comhairle

There are three amendments dealing with what I might call the "no children clause" in tenancies. Deputy O'Sullivan and Deputy Coogan seem to be of the one mind. They look at the matter from the same angle.

Mr. Coogan

My amendment is not exactly the same.

An Ceann Comhairle

Not quite, but more or less the same, whereas Deputy Pattison's is on different lines. The matter might be discussed on amendment No. 95 and then get a separate decision.

Mr. M. O'Sullivan

My amendment is designed to deal with a grave social evil which, as we see it in operation to-day, has very definitely the effect of classing parents who desire accommodation for their children as being untouchables. That unfortunately is the position as we see it, particularly in Dublin. In the case of local authorities, the position is quite different. Local authorities let their houses on the basis of the family. In all cases that I know of family considerations are the predominant factor. But, on the private side, the procedure seems to be the very reverse. I know that a number of people throughout the city are perturbed about the growing tendency latterly in connection with the ban on children. If we are sincere in our claim that children are the greatest asset of the nation, then on an occasion of this kind we should take steps to remove a pernicious ban of that description.

Mr. Coogan

I have a similar amendment down, No. 100, which reads:—

"No order for the recovery of possession of controlled premises shall be made solely on the grounds that the tenant has broken or not performed any obligation in the contract of tenancy prohibiting him from keeping and maintaining on such premises any children or young persons being members of his own family or such as are dependent upon him."

I think it is intolerable under present conditions of society, and, particularly, having regard to the emergency shortage of houses, that young married couples with small families can be turned from door to door because they refuse to sign agreements of this character. Apart altogether from the legal aspect, I think that the policy adopted by certain landlords, particularly of flats and flatlets, is, from the moral point of view, the most reprehensible policy that we can visualise and a policy that we should endeavour, by legislation, to prohibit. I do not want to open the door too wide, but I am strongly of opinion that, where possession is sought for a breach of a covenant against children, the court should have power to refuse the application for possession. If the problem were met in that way, I think we would get out of this difficulty which we have and which is particularly acute in Dublin. I have had many complaints in regard to the matter. I commend my amendment and Deputy O'Sullivan's amendment, which are more or less on the same lines, to the Minister for consideration. I do not want to rush this matter, but I think the whole problem of young married couples hinges on this and that there is grave need for bringing in some legislation of this kind to enable them to establish homes.

Mr. Cosgrave

I support the amendment. Possibly Deputy Coogan's amendment is better worded, because it provides that possession shall not be granted in any case where the application is made solely on a clause prohibiting children. I do not know how widespread this is but, judging from the number of people who have approached me, it must be fairly general. When we have already made so many changes in this Bill, it is no harm to insert a further drastic clause, which would prevent landlords from incorporating such an unchristian clause in a letting agreement, that no children should be allowed to reside with the tenant or tenants. If the Minister does not accept the exact wording, he should accept the principle.

Mr. O'Connor

Naturally, I have great sympathy with any persons who may find themselves in the position that they cannot get a place to live or that they have to leave the place they are in because they have children, but I do not think that any of the amendments here will help in that position at all. I agree that there is a problem, but I do not think it is anything like as widespread as we might be led to believe from the speeches of the other Deputies and from articles which appear in the Press. I have made inquiries amongst several well-known solicitors in the city, asking them if they ever came across a tenancy agreement, a written agreement, in which there was a condition that the tenant was not to have any children living on the premises. I also made inquiries from estate agents, rent collectors and other such people with life-long experience of tenancies, but they never came across a single case of the kind nor have they ever seen an agreement with such a clause.

If we could assume that there ever was such an agreement, I am satisfied that no court under our jurisdiction would enforce such a clause. I have too much respect for our judges and justices to think for one moment that they would allow a tenant to be evicted because he broke a condition of that kind. Such a condition would be entirely contrary to our Constitution. I made inquiries as to whether the effort ever had been made in the courts, but I could not find one case where a landlord sought to evict a tenant by reason of a breach of a covenant of that kind. Therefore, I do not think this amendment is going to help one bit in regard to this problem.

The real question here it not one of landlords imposing conditions, but a question of a party who has premises to let—and this applies particularly to a flat or part of a house—refusing to let them. There is no doubt whatever that very many people would prefer to give the letting to a tenant who has no children rather than to one who has children. That is a big problem, but it will not be affected by any amendment we may make in this Bill. The only way to deal with the problem effectively would be to establish a bureau to carry out all lettings of vacant premises and prohibit landlords from making a letting except through the bureau. Then the bureau could be given a direction to give preference—as in the case of the corporation—to families with children. That would be of some material help to people looking for premises. While I do not think these amendments will be of any help, if the Minister is considering any of them, I would say, with the greatest respect to other Deputies, that the amendment proposed by Deputy Coogan seems to me to be about the most suitable.

My real experience in regard to flats—to which these amendments mostly refer—is that, instead of wanting to get into them, married people with children want to get out of them. I have hundreds of applications from people who took flats when they married, and, now that they have children, they say: "For goodness sake, get us some place, and out of this cursed flat." The real way in which we can solve that problem is by providing houses for young married people as soon as possible.

Mr. Moran

Like Deputy O'Connor, I feel that, if such a provision against children were in an agreement, it would be declared by the courts to be contrary to public policy; but the reason behind the amendments will not be met by the insertion of amendments to this Bill. The difficulty will arise before the letting is made, when the landlord makes inquiries as to the type of tenant who is seeking his premises. It is then that he can exercise the discretion against people with children, and there is nothing which we could put into this Bill which would prevent that.

Mr. Dillon

I think the House is agreed that this practice of refusing accommodation to, or terminating the tenancy of, people who have children at the time of the contract, or who have children born to them in the currency of the tenancy, can be met in very large measure by a slight amendment of Deputy Coogan's amendment. Deputy Coogan's amendment says:—

"No order for the recovery of possession of controlled premises shall be made solely on the grounds that the tenant has broken or not performed any obligation in the contract of tenancy prohibiting him from keeping and maintaining on such premises any children or young persons being members of his own family or such as are dependent upon him."

If we took out of that the word "solely" and then the words "has broken or not performed any obligation in the contract of tenancy prohibiting him from", it would make the amendment read:—

"No order for the recovery of possession of controlled premises shall be made on the grounds that the tenant is keeping and maintaining on such premises any children or young persons being members of his own family or such as are dependent upon him."

Then it would be open to a tenant who was faced with proceedings under the Rent Restrictions Act for recovery of the premises on other grounds to go into court and say: "The other grounds cited are fictitious and I am prepared to demonstrate that the real grounds are that the landlord does not want us because we have two or three young children." That would throw it over on the judge or district justice to determine, on the merits, whether the landlord was making a bona fide case that he wanted the house for his own accommodation—or one of the various grounds on which the landlord can recover possession, other than the payment of rent—or whether he was stating a technical ground for getting the tenant out, where in truth he did not want children and wished to dig them out in order to let the premises to someone who had no children.

We are all agreed that it is extremely difficult effectively to prevent the evil complained of, without, on the one hand, unreasonably interfering with a person's right to his own property or, on the other hand, creating situations which none of us contemplate or desire. Would not the House think that it is desirable to place in the hands of a judicial person power to determine whether there was a flagrant effort being made to keep people out because they had children? Would not the House agree that, if any landlord so abuses his property as to stipulate that no one will live in it but childless families, bachelors or old maids, we consider that to be a misuse of property? I would be glad to know if the Minister or Deputy Coogan thinks that a slight amendment of Deputy Coogan's amendment might not meet the case and transfer the obligation for its precise interpretation, for meeting each case on its merits, to the judge hearing the case.

Mr. Boland

Like Deputy O'Connor, I have been making inquiries amongst people familiar with the letting of houses—both solicitors and house agents—as to whether they ever came across a case in which there was a clause prohibiting children. I have not found any, nor do I think that any such case ever was decided in the courts. I have gone very carefully into this matter as, like everybody else, I know the problem is there and that people with houses to let prefer to get people without children, if they can. I think we discussed this on the Second Reading. People do not say they are refusing the tenants because of children, but say the premises have been let already to someone else. I have been advised by the Attorney General, whom I asked to go into this whole question. I asked him if he thought that Section 37—the one which places restrictions on the landlord's right to gain possession of controlled premises—required any amendment. He is quite satisfied that it does not, after considering all the other reasons which the landlord might advance. If Deputies will look at page 20, lines 22 and 23, they will observe: "and in any such case, the court considers it reasonable to make an order". We have all this talk about the special circumstances of the case and the greater hardship in that particular section, but the overriding provision, the Attorney-General said, which will protect the tenant, is in that provision. I am also advised that there is in the Constitution—Deputy Dillon, I am sure, will appreciate that, because he is a very strong man on the Constitution—Article 41, which specially recognises the family. It says:—

"The State recognises the family as the natural, primary and fundamental unit group of society, and, as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law".

It would be against the Constitution to put in such a provision.

Mr. Dillon

That Article is remarkably close to Article 40, is it not?

Mr. Boland

I found none so far, and Deputy O'Connor has a lot of experience in the housing line, and he has never seen one. I have not heard of a case in which it was in any agreement and I have the best advice, that of the Attorney-General, for saying that anyone who has children cannot be put out because of that, and the court has complete discretion under the provision I have read. Consequently, this proposal is not necessary. I admit the problem is still there, and I do not know how it is to be solved unless we can resort to some arrangement.

Mr. Cosgrave

The important thing is to get them in.

Mr. Boland

Yes, to get them in When we were discussing local authority houses I mentioned that people with the greater number of children have the first claim. Unless something of that kind can be devised for private property—and I do not see that that is likely to happen—how can we insist on the owner of a house making provision for a family? How are we to get over that? I am advised that anything put into that is unnecessary, and why put anything in it if it is unnecessary? There has been a lot of talk about this matter, but we have to face the facts. We cannot devise machinery, and we cannot settle the problem by putting this in the section. If it could be done, I would have no objection. We are reasonable people here, used to dealing with problems of one kind and another, and there is no purpose served in trying to persuade ouselves that to put that in will solve the problem which we know exists. Deputy O'Connor made the case that I would have made.

Mr. Coogan

The Minister and Deputy O'Connor remind me of a certain gentleman who went to South Africa, and who had a peculiar history there. Every time he went in search of the Boers he managed to know that the Boers were east and then he always went west. When the Minister and Deputy O'Connor looked for their problem they, like the late Sir John French, went in the wrong direction, knowing they would not find the Boers there, and they showed masterly inactivity. Where will they get anything about it in the De Vesci or the Pembroke estate offices? You will not find anything there. If you read the Evening Mail, the Irish Times, the Irish Independent or any other Dublin daily or evening newspapers, you will find in 99 per cent. of cases “Flats to let—adults only”.

That is the problem. We are not trying to create an imaginary problem; we are trying to deal with a problem that exists. If those people do get in and families come along afterwards, the landlords start a racket with them and make their lives an absolute hell. It is not always because they have children that they are put out. The landlord comes along, moved perhaps by some crank in the premises, some other dweller in a flatlet, and he starts a racket about some nuisance or some annoyance, and the next thing is an ejectment.

I know you will not find in the court records any case where the occupant of premises was put out because of children. I want to get to the stage where we will get them in, not out. If they are in I do not care by what strategy or subterfuge they have got there. If they are in, I want to ensure that the landlord will not be in a position to turn them out.

I do not know what view the courts will take. It has never been tested, and there is no purpose served by anticipating. Perhaps on grounds of policy they might say the landlord was not entitled to possession.

Mr. Boland

Will the Deputy tell me how does he think the amendment will get them in?

Mr. Coogan

I do not say it will get them in, but if people go to a landlord and say "We are adults and we have no family", and in six weeks' time they bring four or five homeless orphans in, the landlord could——

Mr. Boland

They would not be put out. I am quite satisfied they would not.

Mr. Coogan

Can the landlord put them out?

Mr. Boland

Certainly not.

Mr. Coogan

Where is the safeguard?

Mr. Boland

In Section 37.

Mr. Coogan

I do not see anything in that section in that connection. If Deputy O'Connor were a member of a local authority, as I am, and had people coming night and day to the house telling him the answers they get from landlords, he would find that an acute problem exists. I do not want to engender any heat. I want to bring the matter to the notice of the Minister and the Government in the hope that something will be done now. It is futile to tell people that the solution of the problem is the building of more houses when you know there is not a hope of building houses in adequate numbers during the next five years. Something will have to be done. I cannot see houses being built for the next five years unless in a very limited way. We have even got to the stage that landlords will not let newly-weds into a flat.

Mr. O'Connor

How many flats are vacant in Dublin to-day?

Mr. Coogan

I do not suppose there are any, but we must realise that the problem is there, and I am simply taking advantage of this Bill, and I am sure Deputy O'Sullivan is prompted by the same motive, to bring the matter to the Minister's notice, to see if we cannot improve the position. I do not say that we can do a whole lot, but we can indicate our policy in a particular direction, and we can show that we disapprove strongly of the present practices of landlords. The problem applies largely to the flat and the flatlet; it does not apply to houses in the ordinary way. It is only a matter of finding out how we can improve the position.

Mr. Dillon

I think here is some force in Deputy Coogan's representation. There is some use in the Legislature going as far as it can go to meet an evil in that, after all, taking the De Vesci estate, or large land owners of that kind, provided there is nothing on record in the legislation of the country, they are mostly run by solicitors, perfectly honourable men, who recognise that their first duty is to their employers, the land-owning trust, whatever it may be, and, in the absence of any express declaration on the part of the Legislature that a certain course of conduct is desired, they are bound by professional honour to do the best they can for the estate owner for whom they are acting. A firm of solicitors, finding in the legislation of this House this kind of amendment: "No order for the recovery of possession of controlled premises shall be made on the grounds that the tenant has been or is keeping and maintaining on such premises any children or young persons being members of his own family or such as are dependent upon him", would be entitled to say to the managers of the De Vesci estate: "Possibly it would pay the estate to have no one but childless people in their flatlets, but it is clearly contrary to the general tenor of the legislation in the country", and I do not believe the proprietors of this estate would wish, in violation of the general trend of social legislation in the country, to make a stipulation which is clearly frowned upon.

I am no very great enthusiast for the poor old Constitution, except in its capacity as a popular red herring, but Article 45 of that Constitution is headed: "Directive Principles of Social Policy." The Taoiseach justified that here by saying: "None of the provisions of this Article are enforceable at law, and I do not intend they should be, but they are written in here to give full notice to everybody that that was the way in which the mind of the Legislature is running." If I were the tenant of a house, and a plot which Deputy Coogan envisages, a plot which, I think, is not at all far-fetched, were hatched against me, if some cranky old gentleman upstairs were persuaded to go into court and say that he is kept awake at night by the yowling of infants, or that Mrs. So-and-so was a very quarrelsome person, and he could not live with her; or the piano was being played too much, I would say: "The truth of it is that it is not the piano which is upsetting this old gentleman, and not my temperament, but the fact that the De Vesci Estate want me out of the flat because we have four children. I can prove to the court that there has been no conduct constituting a nuisance on my part, except that, on occasions when the baby has been sick, it may have cried during the night, but I cannot help that. I did not want the baby to cry any more than the old gentleman upstairs, but that is the real ground on which they are trying to put me out." By reference to the amendment which I suggest, I think the court would say: "We are satisfied, having heard all the evidence, that there is no real nuisance here, beyond the nuisance inseparable from a crying baby, and we are going to determine that the real ground on which it is sought to get these people out is that they have children, and accordingly we will not eject them."

As to getting children into a flat, I think Deputy Coogan probably agrees with the Minister that there is no legislative method by which you can do that, but I seriously suggest that, where you have a large estate, responsibly managed, it will materially affect the general attitude of those managing it if the Legislature goes on record with an amendment of the kind I suggest, and that they will make up their minds that it is one of the liabilities of large landlord properties to accept the inconvenience of having large families accommodated in their premises if they intend to remain in the house-letting business. I do not suppose we can expect the Minister, having come into the House unprepared to accept an amendment of that character, to change his mind without mature reflection and consultation, but I do put it to him, as my last word, that he should look at Deputy Coogan's amendment and consult with his advisers as to whether it might not be useful to put in my suggested revised version of it.

There is only one danger in it, and I suggest that the Minister should weigh that danger against the advantages I envisage. It is hard enough to get into a flat now if you have a family, but if you give exceptional protection to the person with a family, landlords may say: "Bad as it was to have them before, when they were not in a privileged position, if we let such into our premises now, it does not matter what nuisance they commit, or how outrageous their conduct becomes, they will go before the court and say that it is because of the children we want to get them out, and, judges being naturally sympathetic to that kind of person, they will refuse to listen to any allegation of nuisance against parents of families at all".

If that apprehension is well-founded, let us be careful lest, in trying to help such people, we in fact hinder them. I am not clear as to the relative merits of these two considerations. The Minister and his advisers will be able to weigh them up, and, if he thinks, bearing that danger in mind, that the amended form of Deputy Coogan's amendment would serve a useful purpose, he might consider doing something on Report Stage.

Mr. Cosgrave

I also ask the Minister to reconsider it. While I agree that the real difficulty in this case is to get tenants with children in, there are difficulties in relation to a number of estates in a particular place which I have in mind. It is a place like Dun Laoghaire where a lot of landlord houses—in most cases, absentee landlords—are let in flats. They are formed into either trusts or companies, and, in a large number of cases, are being managed by agents or by solicitors. While they are not actuated by any wrong motives, their first concern is for their clients. They want to preserve the property and children will usually create a certain amount of damage for the repair of which the agent or firm of solicitors is responsible. I hesitate to quote the Constitution again because I always feel it is like the devil quoting scripture to suit himself, but it might be some indication of the Legislature's view. I do not see how it would in any way harm the general tenor of the Bill if the Minister accepted the amendment. It may be innocuous, but there does not appear to be any serious objection to accepting it.

Mr. Boland

I can assure Deputies that I did not require this debate to bring this matter to my attention. I am well aware of the problem and should like to solve it if I could, but I particularly asked the Attorney-General to consider Section 37 from the point of view of whether it gave adequate protection to people with children and his considered opinion is that it does. I do not think it is proper to bring into a Bill a provision which is unnecessary. As to my coming in unprepared to accept the amendment, I think it would be a wrong attitude for me to adopt because there would be no point in having a debate at all if I came in with my mind definitely made up. I hope my mind is open to receive worth-while suggestions, and in fact certain points were brought out on Second Reading with which I dealt on this stage, and I think the Bill has been improved.

There is, however, a possibility that if we inserted this in the Bill, we might do damage to people with families. Those who select tenants might take every precaution to ensure that there would not be children, whereas they would not be so careful now. I will look into it again in the light of what has been said, but I assure the House that I have given this my personal consideration. My advisers have also considered it, and we asked the Attorney-General to go very carefully into it. I have not heard anything which makes me feel I should accept the amendment, but I will consider it further. If I come to the conclusion that I ought to accept the amendment in principle I will do so on Report. I wonder whether the acceptance of it would not do more harm than good. I do not think Deputy Coogan was fair in what he said, that he knew the enemy was west. We are genuinely trying to find out where there are such cases. We know the problem that is there as well as he does. I had to go to my advisers for information. Where else could I look for it? We had to go to house agents and solicitors who have a lot of experience in the letting of houses. That is where we went for our information. That was not going east when we knew we would get our information by going west. I repudiate that particular suggestion.

Mr. Coogan

There are two matters that I want to deal with on this. One is in relation to flats and the other has to do with domestic servants. The latter point does not really arise on the Bill, but it is part and parcel of what we are dealing with. We see from advertisements in the newspapers that when flat-owners are looking for tenants they look for "adults only." If one turns to the column in the newspapers where advertisements from domestic servants out of employment appear they indicate that they also are looking for "adults only."

Mr. O'Connor

The Deputy is not going to blame the Government for that too?

Mr. Coogan

These are two reprehensible types of advertisements. The domestic servant indicates that she will only take employment from a bachelor, an aged bachelor or in a house where there are only adults. She will not go to where there are children. That is the kind of thing that I would like to see stopped. Surely, we could put into the Bill a provision to the effect that advertisements of that type would be unlawful.

Mr. Boland

That is a very big question.

Mr. Coogan

I think we should indicate our policy on the matter. It might be worth considering whether we could not prohibit advertisements of that type in relation to flats being published.

Mr. Boland

I do not see how we could do it.

Amendment, by leave, withdrawn.

Mr. M. O'Sullivan

I move amendment No. 96:—

In sub-section (1), paragraph (d), page 19, lines 51 and 52 to delete the words "or let the premises".

This amendment is designed to protect the tenant who has given notice to quit on the presumption, shall we say, that he has made an agreement to get another home. In such case the landlord should not have the right which is vested in him in the words "contracted to let premises" where the tenant's new agreement subsequently falls to the ground. Seeing that the house is controlled, no great hardship will fall on a landlord if that particular provision is ruled out. What I have in mind is the case of a man who gives his landlord notice to quite, and subsequently finds that the arrangement that he has entered into for a new home does not materialise. In such a case he should be allowed to retain his old home.

Mr. Boland

What about the landlord and the fact that he may have contracted to let the house to some other person? If he fails to carry out the terms of the new contract he can, I presume, be sued for breach of agreement. A man surely ought to consider his position seriously before he gives his landlord notice to quit. A landlord may be depending on the rents of his houses. He will want to have them let all the time. If he gets notice to quit and enters into an agreement with a new tenant, I imagine that he would be leaving himself open to an action at law and to damages if he failed to carry out the agreement.

Mr. M. O'Sullivan

He could enter into the new agreement, subject to the rights of the outgoing tenant being preserved.

Mr. Boland

Surely, if a man gives notice he has to go unless the landlord wishes to take him back. The proposal in the amendment is very dangerous and I could not agree with it.

Mr. Dillon

What would the position of a landlord be if an outgoing tenant could enter into an agreement with an incoming tenant? Surely, if a man has any sense at all he will make a good and binding contract with his new landlord before he throws up his old home. There is nothing to prevent him doing that.

Amendment put and negatived.

Mr. M. O'Sullivan

I move amendment No. 97:—

In sub-section (1), paragraph (e), page 19, line 56, after the word "dwelling" where it first occurs to insert the words "purchased by the landlord before the operative date"—

This amendment would protect a tenant from a landlord who buys up a house and then evicts the tenant from it. If a landlord buys a house to which the Act applies he buys it subject to the tenant's rights, and should not be allowed to disturb the tenant.

Mr. Boland

I do not think there is any necessity for the amendment. It is unlikely, I think, that a man would do what the Deputy suggests, that is, to buy a house already occupied in the hope that the court would give him possession of it. Deputies know that under Section 37 there are provisions to protect the tenant. The overriding one is that of "greater hardship". I know one case myself where a man got a written undertaking from a person that he was letting into a house for one year. The undertaking was that that person should leave the house at the end of a year. The owner wanted the house for a son who was getting married. The case went to court and, despite the written undertaking, the court held by the greater hardship clause, and left in possession the person who had undertaken to leave it at the end of the year. No one would buy a house in the hope that the court was going to give him possession by evicting a tenant. I think that such a person would be an optimist. The amendment is not necessary and I am not prepared to accept it.

Amendment, by leave, withdrawn.

Mr. M. O'Sullivan

I move amendment No. 98:—

In sub-section (1), page 20, lines 1-3, to delete the words "or for some person in whose wholetime employment or in the wholetime employment of some tenant from him".

In this particular case the Minister goes so far as to make provision "or for some person in his wholetime employment or in the wholetime employment of some tenant from him." I suggest that that is an outrageous insertion so far as the Minister is concerned. He makes provision for an employee. Now he wants to make provision for an employee of a tenant. I am anxious to hear what explanation the Minister has to make of this particular provision.

Mr. Boland

That has been taken word for word from the 1923 Act. It has been in existence for 22 years and I have never heard any complaint as to how it worked. I have simply incorporated this provision in this Bill. It is a copy, word for word, of the provision in the 1923 Act.

Mr. M. O'Sullivan

The fact that the Minister has copied it from another Act is no justification for it and no indication that it has merit behind it. Here is a case where you can have collusion between an employer and an employee to rig up a bogus tenancy. In so far as one employee is concerned, you can understand the arrangement but, where the Minister proposes to extend it to the employee of a tenant, it seems absurd.

Mr. Boland

There again the greater hardship clause operates.

Mr. M. O'Sullivan

Why extend the line of protection down to the employee of a tenant?

Mr. Boland

As to whether there was any ground for it or not, I assumed that when the 1923 Act was being passed, it was pretty well debated at the time. I may be wrong in that. We were not here then and Deputy McGilligan was probably wiser than we are. Anyway it worked for 23 years.

Mr. McGilligan

Sorry. I was not here then.

Mr. Boland

Anyway, I took it for granted that it had worked, as there had been no complaints about the particular section. There is the provision about the greater hardship, which is the principal part of the whole section, and makes any abuse of the kind Deputy O'Sullivan visualises very unlikely. A person could not be got out by any subterfuge of the kind he imagines if it could be shown that a greater hardship was being inflicted on the person being put out. The court is not very easily shifted from that position. It is not necessary to alter it.

Mr. M. O'Sullivan

I see no use in extending it to the employee of the tenant.

Amendment put and negatived.

Mr. M. O'Sullivan

I move amendment No. 99:—

In sub-section (1), page 20, line 6, to delete the word "or" and insert the following words:—"and the court is further satisfied that alternative accommodation reasonably equivalent as regards rent and suitability in all respects is available, or".

The point is one which has been referred to by the Minister. As I understand, this provision obtains so far as business premises are concerned and why not, therefore, in the case of private dwellings? It was, I understand, in the 1923 Act.

Mr. O'Connor

The provision about alternative accommodation was, I think, in some of the earlier Rent Restrictions Acts but in the 1923 Act it was dropped and the question of greater hardship was brought in. It is generally considered that that leaves the court in a much better position to deal with the case. In the case of a dwelling, to try to show that there is alternative accommodation equally suitable as the place the tenant is being put out of is a matter of great difficulty. It is felt that the court has much greater freedom to act according to the merits of the case by the provision of greater hardship, added to the other clause at the end of the section —"and, in any such case, the court considers it reasonable to make an order".

Mr. McGilligan

That applies only to business premises.

Mr. O'Connor

It applies to both.

Mr. McGilligan

Does it?

Mr. O'Connor

I think so.

Mr. McGilligan

Does the phrase at lines 23 and 24 apply to sub-section (e). Surely that is tied on to (f). Is that not so?

Mr. Boland

It governs everything in the section.

Mr. McGilligan

All the sub-paragraphs (a) to (f)?

Mr. Boland

So I am advised.

Mr. Moran

If it does, it is not clear.

Mr. McGilligan

I wonder is it the Minister's intention to make it apply to all the clauses from (a) to (f)?

Mr. Moran

It would appear only to apply from (f) down.

Mr. O'Connor

I think it is intended to apply to everything.

Mr. Moran

It will be doubted elsewhere if it is clear here.

Mr. Boland

I believe it is clear but, if it is not, I will see that it is made clear.

Mr. McGilligan

That the overriding consideration in every case is that the court considers it reasonable to make the order?

Mr. Boland

Yes.

Mr. McGilligan

And that everything else is subordinated to that view?

Mr. Boland

I am advised that that is so. Deputy McGilligan was not here when the provision in regard to children was being dealt with. The Attorney General says that is the overriding consideration there, that the court, has to be satisfied that it is reasonable to make the order.

Mr. Dillon

It is all very well if the Minister says to us that the Attorney General has advised him that the words "and in any such case the court considers it reasonable to make an order" govern the whole of Section 37. That is a weighty opinion. But, as Deputy Moran points out, if you look at paragraph (f) you will see that it is introduced by descriptive words, "in the case of business premises" and then the section goes on. It may certainly be argued that these words "in the case of business premises" control what remains of the section. It does not say "and in any case referred to in this section" or "in any case covered by this section". It says "and in any such case" coming after the words "in the case of business premises". Surely that lends point to the contention that the words "and in any such case" have exclusive reference to the case of business premises.

Mr. Boland

I will look into it again in case there is any doubt.

Mr. Dillon

May I direct the Minister's attention to the fact that the introductory words of sub-section (1) are: "subject to sub-sections (2) and (3) of this section, no order for the recovery of possession of controlled premises shall be made unless—". Then there are all these paragraphs down to (f)—"in the case of business premises" and then you have the words "and in any such case". "Case" first comes into the section in connection with paragraph (f) and I think it might be powerfully argued that therefore the word "case" in the last sentence has reference to (f) inasmuch as that is the first place the word "case" appears.

Mr. Boland

Look at (e)—"in the case of a dwelling".

Mr. McGilligan

That only fortifies the Deputy's argument.

Mr. Cosgrave

There is the word "or", of course. It may include (f).

Mr. McGilligan

Has lettered paragraph (g) reference to business premises only? (f) applies to business premises.

Mr. Boland

(f) applies to business premises.

Mr. McGilligan

Does (g) apply to all premises?

Mr. Boland

Yes.

Mr. Dillon

If it requires clarification it had better be put right. Is it the Minister's intention that these words "and in any such case, the court considers it reasonable to make an order" should apply to all?

Mr. Boland

Yes. I will look into it.

Mr. McGilligan

One obvious way of doing it would be to put it up before lettered paragraph (a); that is to say that, subject to these sub-sections, no order shall be made "unless the court considers it reasonable to make an order and unless" and then go on down the lettered paragraphs.

Mr. Boland

I will draw the draftsman's attention to that.

Mr. McGilligan

On Deputy O'Sullivan's amendment No. 99, he wants to put in "and the court is further satisfied that alternative accommodation reasonably equivalent as regards rent and suitability in all respects is available". That is the alternative accommodation phrase. Deputy O'Connor is perfectly correct in saying that that phrase was in earlier Acts but was left out of a later Act and substituted by this phrase "greater hardship". That may well be so and that the courts, when discussing "greater hardship", make it an item of their consideration whether there is alternative accommodation available. Deputy O'Sullivan wants to ensure that that alternative accommodation will be a sine qua non of any order and that no consideration of greater hardship will be allowed to operate if they are not sure that alternative accommodation is available reasonably equivalent as regards rent and suitability in all respects. You get that in as one item and, after that is satisfied, the court moves on to consider “greater hardship”.

Mr. Boland

I do not think that would be fair to the person who owns a house. You must be fair to him.

Mr. McGilligan

If you were thinking only of a landlord who requires the premises as a residence for himself, I certainly think that it would be a line-ball case. It is an equal hardship. If the owner of a house wants to get back into his own premises, he should get back, if it is a line-ball case. But, where you add on "or for any person bona fide residing or to reside with him or for some person in his whole-time employment or in the whole-time employment of some tenant from him”, it seems that you are stretching this “greater hardship”.

Mr. Boland

"Greater hardship" governs that.

Mr. McGilligan

I am afraid I have not made my point clear. I should like to make this Bill more favourable to the landlord if it were only a question of a houseowner requiring his own premises as a residence for himself and his family. But when you extend that, and you add that he should be entitled to get possession because he wants it for somebody who is residing or is to reside with him, or for some person in his employment or in the employment of some tenant from him, then I think that it might be an obligation on the landlord in these latter circumstances: (1) to show that there is alternative accommodation for the occupier, and (2) that it is a greater hardship to refuse an order for possession than would be entailed by granting it. I think the Deputy has a lot of merit if he joins his two amendments together.

Mr. Boland

I suppose I had better look into paragraph (e) again.

Mr. McGilligan

The old idea was that you should allow a houseowner to get possession of his house which he has let to somebody else if he wants it for his own family. But, when you extend it along the lines it has been extended, I think the occupying tenant swings in and has merits on his side, unless it can be shown that there is alternative accommodation available.

Mr. Boland

I mentioned a case which came under my notice where a person wanted a house for his son, and he definitely told the person that he was only going to let it for a year. This man's son was going to be married. Yet the court refused to give him possession of his house.

Mr. Dillon

When was this exception made in respect of employees? Was it in respect of people who wanted to get gardeners into a gate lodge? What is the history of extending the benefits to employees?

Mr. Boland

I do not know; I will have to look into that.

Mr. McGilligan

I think it is tied up to the man who has a house because he is doing some work, or the factory which wants to have some man on the premises. The matter will be considered?

Mr. Boland

Yes, I will consider it.

Mr. Dillon

You will consider both sides of the case?

Mr. Boland

I will.

Amendment, by leave, withdrawn.

Amendment No. 100 not moved.

Question proposed: "That Section 37 stand part of the Bill."

Mr. Moran

In connection with the application of the section, there is one danger, as there was in the old legislation, and that is the question of letting for temporary convenience. Section 45 deals with that, but it does not put the position any further than it was in the old legislation. If you get an agreement under which a tenant admits and declares that the letting is for the temporary convenience of the landlord and himself, such agreements have been upheld, and it is a way of getting outside the provisions of the Act. It may well be a way of getting outside the provisions of this Bill. I suggest to the Minister that we should examine that loophole and that some provision should be made that the agreement would have to specify either what the temporary convenience actually was, what the purpose of it was, or that that particular danger should be guarded against, as it has been used as a method of circumventing former lettings.

Mr. McGilligan

Do you mean that somebody pretends that there is a temporary convenience letting and gets away with it?

Mr. Moran

Yes, I have had experience of special provisions like that under the legislation that exists. In practically every letting agreement, where you intended to give the landlord a chance of recovering his premises when he wanted them, you put in a provision that the letting was for the temporary convenience of the landlord. There were cases in which such agreements were upheld in which the tenants admitted and declared that the letting was for the temporary convenience of the landlord, although in fact no such reasons existed at the time of the letting. When a tenant wants to get into a house he is prepared to sign an agreement with any provision in it. I suggest that, under this Bill, the very first attempt by members of my profession, in order to endeavour to get clients out of this Bill, will be to work this old gag of temporary convenience lettings.

Mr. McGilligan

I thought the matter was entirely different. I understood there was some decided case—I do not remember it—to the effect that the court will not be satisfied merely with an agreement which states that the letting is a temporary convenience one, but will examine into the circumstances and must be satisfied that, in fact, there is a temporary convenience. The point the Deputy refers to, of some tenant who, in order to get into premises, has been induced to sign an agreement containing a statement that it is a temporary convenience letting, does not affect the matter. He will have to inquire fully into it.

I would like the Minister to enlighten me as to the effect of sub-section (3):—

"Nothing in sub-section (1) of this section shall affect the operation of Section 26 or Section 34 of the Housing (Miscellaneous Provisions) Act, 1931 (No. 50 of 1931)."

What is that supposed to cover?

Mr. Boland

It deals with demolition orders. Section 34 of the Housing (Miscellaneous Provisions) Act deals with the recovery of houses and buildings in relation to the housing of the working classes. Section 26 is the procedure where a demolition order or closing order is given. It is a very long section and I suppose I need not read it. Is that what Deputy McGilligan wanted to know?

Mr. McGilligan

I wanted to know if this is the sub-section under which we might discuss the situation where a local authority serves an order of a dangerous dwellings type, leading to demolition, and in fact the house is not demolished but gets thereafter into the possession of someone who takes over from the local authority. I am instructed that that individual, by virtue of what has happened, can eject the tenants, even though he does not intend to pull the house down or even though, instead of erecting houses for the working classes, he erects a picture-house. If this is the proper section, I would like to narrow it.

Mr. Boland

I cannot answer that.

Mr. Cosgrave

I have an amendment to Section 46 on that point.

Mr. McGilligan

Section 40 has some reference to it.

Mr. Dillon

This is where there is an order subsequently transferring the cleared site to another person.

Mr. McGilligan

Transferring the site and the dangerous dwelling on it to another person, who knocks it down and puts up a picture-house. If the local authority knocks down the dwelling, after having compulsorily acquired the site for the purpose of the housing of the working classes, they must go on to erect the houses; but they can go a certain length and then a private person may step into their shoes and that private person may partially destroy or remake the building, but may not make it into dwellings.

Question put and agreed to.

Section 38 agreed to.

SECTION 39.

Mr. Boland

I move amendment No. 101:—

To add at the end of the section the following sub-section:—

(3) On the death of the statutory tenant of controlled premises the following provisions shall have effect:—

(a) in case the statutory tenant leaves him surviving his wife, who was residing with him at the time of his death, she shall be entitled to retain possession of the premises under the same terms and conditions as the deceased statutory tenant;

(b) In case the stautory tenant does not leave a wife so residing, such member of the statutory tenant's family so residing or, where there is more than one such member, such one of them as may be agreed upon between them or as may be selected by the court in default of agreement shall be entitled to retain possession as aforesaid;

(c) in case the statutory tenant was a woman, paragraphs (a) and (b) of this sub-section shall have effect with respect to her husband and family as they have effect with respect to the wife and family of a statutory tenant being a man;

(d) in any case to which none of the foregoing paragraphs applies, the interest of the statutory tenant shall determine at his death.

Mr. M. O'Sullivan

The Minister proposed to give us quite a lot of information on this amendment.

Mr. Boland

We discussed all this on Section 2. This amendment is the corollary to amendment No. 8, which proposed the deletion of portion of the definition of the word "tenant" in Section 2 (1).

The new sub-section proposed for insertion in Section 39 defines precisely and explicitly the rights of succession on the death of a statutory tenant. It is a substantial re-enactment of the existing law on the point, subject to two amendments.

First, the case of a widower of a statutory tenant is provided for. Deputy Coogan mentioned on Second Reading that the existing provisions in the 1923 Act did not cover such a case.

Secondly, under the amendment the right of succession to a statutory tenancy is extended beyond the person who first succeeds. It has been decided under the 1923 Act provision that the right of succession did not extend beyond the first successor. The Town Tenants' Tribunal recommended in their agreed report that the law on this point should be changed as is now proposed in the amendment. This is done by making it clear that the person who succeeds becomes a statutory tenant in as full a sense as the original statutory tenant and subject to the same terms and conditions, so that when he or she, in turn, dies the right to retain possession will pass to the person (if any) next entitled to succeed under the provision. I think that makes it pretty clear.

Mr. Cosgrave

That will not allow in the sister of a tenant. If there are two sisters living in a dwelling-house and one of them, who is the statutory tenant, dies the tenancy does not flow to the other and there have been cases where the surviving sister has lost the tenancy.

Mr. O'Connor

I would suggest that this amendment should be made applicable to all tenants of premises which are controlled by these Acts. I can see no reason why the benefit of this provision should be confined to a statutory tenant. The contract tenant who retains possession under this Bill should be on the same basis. I also suggest that, as in the case Deputy Cosgrave mentioned, sisters and nieces should be protected. I was consulted recently in a case where the mother of the family was tenant and on her son getting married he brought the wife in to live with her. The son died and the son's widow was told that if the mother, who was very old, passed away, the widow would be put out. I looked up the law and found that that was right, that she would have to go. I do not think the position would be very much improved by this section. I would recommend the Minister to widen the scope considerably so as to protect any member of the family.

There is an objection to that course, in that it might in some cases result in smaller families being allowed to retain premises. There may be a number of old people living together, brothers or sisters, and the last surviving might be allowed to maintain premises when a bigger family wanted to get them. However, if we are going to err, it would be better to err in trying to avoid hardship to the old people.

I would also recommend to the Minister that there should be a provision that no tenant whose premises were controlled under this Bill should be allowed to leave the benefit of his tenancy by his will. That would be an entirely new feature of tenancy in this country. We have never tried to interfere with a person's right to dispose of property, but I do not think a tenant should be allowed to dispose of his tenancy by will, as he might thereafter leave it to some outsider who never was in the premises at all. We would then have the extraordinary position that no one was entitled to the tenancy at all.

Mr. McGilligan

How can anyone leave a tenancy by will?

Mr. O'Connor

Is there not a decided case—the case of McKenna?

Mr. McGilligan

That was only under the old law of a person dying intestate, where he would not insist on those words being construed. If a person did leave a tenancy in that way, he died intestate, so far as the tenancy was concerned.

Mr. O'Connor

I am not going to make the case that the tenancy can be devised by will, but I think we should take some steps to show that it cannot be devised by will.

An Leas-Cheann Comhairle

I would like to remind the Deputy that this follows on amendment No. 8 and governs amendment No. 123, which is in the Deputy's name.

Mr. O'Connor

I will not have anything to say on that amendment. I move to report progress.

Progress reported; Committee to sit again.