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Dáil Éireann debate -
Wednesday, 12 Dec 1956

Vol. 160 No. 15

Statute of Limitations Bill, 1954—Report and Final Stages.

The amendments at this stage are drafting amendments.

I take it that amendments Nos. 1, 22, 23, 25 and 31 go together.

I take it those are not being taken first?

No, but they are contingent on No. 1.

I think there need be no discussion about anything on the first page of amendments.

Then I will put those amendments as accepted and agreed.

I move amendment No. 1:—

In page 5, Section 2 (1), to delete lines 29 to 33.

Amendment agreed to.

I move amendment No. 2:—

In page 11, Section 11 (5) (a) (i), line 9, before "a conventional rent" to insert "of".

Amendment agreed to.

I move amendment No. 3:—

In page 12, Section 12 (1), line 3, before "no action" to insert "subject to Section 26".

Amendment agreed to.

I move amendment No. 4:—

In page 12, Section 12 (2), line 16, before "the title" to insert "subject to Section 26".

Amendment agreed to.

I move amendment No. 5:—

In page 12, Section 13 (1) (a), line 21, to delete "forty" and substitute "thirty".

Amendment agreed to.

I move amendment No. 6:—

In page 13, Section 14 (1), line 8, to delete "when" and substitute "while".

Amendment agreed to.

I move amendment No. 7:—

In page 14, Section 15 (2) (b), line 4, to delete "forty" and substitute "thirty".

Amendment agreed to.

I move amendment No. 8:—

In page 15, Section 18 (3), line 36, before "is" to insert "of action".

Amendment agreed to.

I move amendment No. 9:—

In page 16, Section 25 (3), line 53, to delete "a" where it first occurs.

Amendment agreed to.

I move amendment No. 10:—

In page 17, Section 25 (4), line 6, to delete "When" and substitute "Where".

Amendment agreed to.

I move amendment No. 11:—

In page 17, Section 25 (4), line 7, to delete "Land Act, 1882" and substitute "Land Acts, 1882 to 1890".

Amendment agreed to.

I move amendment No. 12:—

In page 17, Section 26 (1), line 16, to delete "a" where it first occurs.

Amendment agreed to.

I move amendment No. 13:—

In page 17, Section 26 (2), line 24, to delete "a" where it first occurs.

Amendment agreed to.

I move amendment No. 14:—

In page 18, Section 32 (1), line 16, to delete "forty" and substitute "thirty".

Amendment agreed to.

I move amendment No. 15:—

In page 18, Section 32, to delete sub-section (3), lines 34 to 37, and substitute the following new section:

Subject to Section 52 of the Act of 1891, at the expiration of the period fixed by this Act for a mortgagee to bring an action claiming sale of the mortgaged land, the title of the mortgagee to the land shall be extinguished.

Amendment agreed to.

I move amendment No. 16:—

In page 18, to delete Section 33, lines 38 to 43.

Amendment agreed to.

I move amendment No. 17:—

In page 19, Section 34 (2), line 2, before "are" to insert "and profits".

Amendment agreed to.

I move amendment No. 18:—

In page 19, Section 34, to delete sub-section (3), lines 8 to 12, and substitute the following new section:—

Subject to Section 52 of the Act of 1891, at the expiration of the period fixed by this Act for a mortgagor to bring an action to redeem land subject to a mortgage, the title of the mortgagor to the land shall be extinguished.

Amendment agreed to.

I move amendment No. 19:—

In page 19, Section 35 (1) (b), line 27, to delete "forty years" and substitute "thirty years".

Amendment agreed to.

I move amendment No. 20:—

In page 20, before Section 37, to insert the following new section:—

At the expiration of the period fixed by this Act for a mortgagee of land to bring an action to recover the land or for a person claiming as mortgagee or chargeant to bring an action claiming sale of the land, the right of the mortgagee or such person to the principal sum and interest secured by the mortgage or charge shall be extinguished.

Amendment agreed to.

I move amendment No. 21:—

In page 20, before Section 37, to insert the following new section:—

At the expiration of the period fixed by this Act for a mortgagee or chargeant to bring an action to recover a principal sum of money secured by a mortgage or charge on personal property (other than a ship), the right of the mortgagee or chargeant to the principal sum and interest shall be extinguished.

Amendment agreed to.

I move amendment No. 22:—

In page 20, before Section 37, to insert the following new section:—

An action in respect of a right in the nature of a lien for money's worth in or over land for a limited period not exceeding life, such as a right of support or a right of residence, not being an exclusive right of residence in or on a specified part of the land, shall not be brought after the expiration of 12 years from the date on which the right of action accrued.

When the Bill was before the House on the Committee Stage, I drew the attention of the Minister to a problem which affects a number of landholders. While in some of his proposed amendments the Minister seems to have dealt with certain analogous problems, either he has failed to deal with the one I raised, or my mind, untrained in the interpretation of legal terminology, has failed to grasp his intention.

Amendment No. 22 deals with a right in or over land for a limited period. It is proposed elsewhere in the Bill to introduce other sections or amending words, all dealing with a right in or over land for a limited period. Such a right generally is created as part of a marriage settlement and consequent upon the transfer of lands from parents to children. The occasion on which such agreements are allowed to fall into desuetude must, in view of the conditions surrounding them, be very few.

The problem on which I spoke to the Minister is a substantially different one. My concern is not that of extinguishing property rights, as has been in a measure suggested, but to point out that certain controls over property and land should not be regarded as rights, morally or judicially. Those who are familiar with the history of Irish land tenure know how tenacious was the hold of those landholders who acquired their lands as a result of the various confiscations. They are aware of many agreements made arising out of grim need—and as grimly exploited. I am not referring here to shooting, fishing or mineral rights, but to the continuation in perpetuity, by specific State action, of a rack rent.

The economic circumstances and the passing of the years have, in practice, abolished those charges. They reappear only when the State, directly or through any of the local authorities, acquires land and in all such cases when either the State or the local authority acquires land, the capital sum is deducted from the agreed price, to the detriment of the landholder from whom the land is being acquired. The sum retained is designed to meet an improbable demand, a demand that in practice has not been enforced and is actually unenforceable.

The existence of the charge is never taken into consideration in the matter of sale and purchase between individuals. It is only when the State enters the land market that it raises its spectral head. I think there is, and there must be, in State procedure, a rigidity not affecting the ordinary individual. So that the State may act in accordance with what has become the recognised practice in land transfers, an amendment of the law is, I think, essential, an amendment which sets a time limitation to the right to demand payment in perpetuity. This is a right which in practice has not been sought, has not been enforced and is only being held by a State Department and by local authorities under Section 38 of the Land Act of 1923, which makes provision for the redemption of fee farm grants. Section 59 of the Landlord and Tenant Act of 1931 provides that if rent has not been paid for five years and the whereabouts of the lessor are unknown, the tenant is free from covenant, condition or agreement. That is it in great measure; there are some further words which may qualify it.

Apart from the difficulty it makes for the landholder, it gravely has affected forestry development and the acquisition of land for forestry. The price paid for forestry land is not exceptionally high. From the amount to be paid is, first of all, deducted the capital sum for annuities—which is understandable—but why should a further capital sum be deducted or held to meet a demand for a charge which has never been enforced and never been sought and which was introduced away back during the mists of history, by some too cautious landlord who found that economics entirely worked against him and found that he could never collect? I am concerned only with having in this Bill a limitation whereby the State and the local authorities will not insist on perpetuating some regulation that has, by custom among the people, completely disappeared.

Is the objection to the 12 years in amendment No. 22 in respect of this matter? Amendment No. 22 deals simply with the 12-year period?

Amendment No. 22 concerns a right in or over land for a limited period.

Yes, but look at what is said there: "such as a right of support or a right of residence, not being an exclusive right of residence".

What I fear is that those rights of support and residence that the Attorney-General speaks of are the ordinary rights that may be contained in a marriage settlement or in a transfer from father to son and these surely do not need any legislation, but the other thing does.

In any case, there is no objection to the 12-year limit on these things?

Major de Valera

Surely it is a question of what limit you will put on them? If they are the type of thing that is envisaged in this section, it is an enforceable claim. That is all that would be envisaged? Any arrangement that is not an enforceable claim is not contemplated by the code. Therefore, it is desirable to bring in some limit and the question is what limit? I take it the 12 years is all right.

I do not mind what time limit you have, but you are not dealing with changes of property which are not in practice enforced or enforceable.

Major de Valera

I think what Deputy Moylan has in mind is something that might require a shorter limitation, but it is a question of whether it is a matter for the code dealing with land. The point is that there are certain rights that have no meaning at all in practice, until some interest such as the State seeks to intervene, and then they appear because of a clause that is in them as a blot on the title. When they so appear, it is a question of extinguishing them. I see there is a certain difficulty here and I would ask the Attorney-General is the 12 years the period which fits most uniformly into the pattern? Is that the best way of getting uniformity with the remainder of the code? Would a shorter period suit?

Twelve years is the appropriate period, I think, for this, but Deputy Moylan is not really referring to these personal rights over land at all. I gather he is not objecting to the 12-year period, or any period in respect of the type of rights referred to in amendment No. 22. He is speaking of some other rights over land and I do not know what they are. I am advised that pretty nearly every right, you may say, over land, with the exception of rights of easement, shooting rights—I am sure the Deputy is not interested in them——

Everything else is covered in the definition section or carried forward through legislation or covered in some specific way. Land charges are all covered. We went through that on an earlier stage. This deals with certain rights for a limited period and rights that are not exclusive rights of residence, as rights of residence were taken, in the Keegan case to which I referred earlier, as equitable rights and they are covered already. I am afraid I do not get the Deputy's point, I think he is referring to something as not being covered which should be covered. What is the particular point not covered?

I hope the Attorney-General will bear with me——

On land matters the Deputy knows more, I am sure, than I do.

Suppose a man owns a farm of land which is acquired by the Forestry Department. The price is agreed and the sum to cover land annuity charges is deducted from the price. All is fair. But liability for some charge, the origin of which is unknown —it has never been demanded, never claimed and never paid as long as the farm is there—arises. It never appears until the State is negotiating with the farmer to purchase the land. Then the State computes the capital sum that would extinguish this charge and they also deduct that, with the result that the price of the land becomes so low that it is not worth the man's while to sell it to the Forestry Department.

In the same way a local authority may want an acre of land for a labourer's cottage and they discover there is a charge of this nature on the farm. Before the farmer can be paid for the land and the title cleared, he must clear the blot created by this charge, which again has never been met or demanded. I am sure in the Attorney-General's wide experience he must have come across that?

It would seem to me to be barred.

I do not mind how long the limitation is, whether ten or 40 years, but I would like to have that charge become unenforceable at some period.

Major de Valera

That would follow here, but the period would be 12 years. I think that anything in the nature of a claim arising in that way, unless the claim has been enforced, becomes automatically extinguished under the limitation of the 12 years? Is that not the point here?

Major de Valera

So that the answer to Deputy Moylan would appear to be that whatever the merits of this kind of charge that does not come to light until there is a sale may be the fact will be that if such a charge is there, it will be extinguished after 12 years and the only point that would arise then is evidence of title. Usually requisitions on title would furnish that information, but the net point is that the limit is 12 years. If the right has not been exercised for 12 years, it is barred.

I do not understand Deputy Moylan's point, but I am quite clear that he is not talking about the type of matter that is here.

I have done the best I can.

There has been an effort to cover all things in the way of charges on land and I believe they are covered. The Deputy seems to think there is something not covered and I think he is founding it entirely on one case.

I hope so.

I think there is only one case in the Deputy's mind.

I have a number of cases in mind.

Major de Valera

Of course, there is another question—if the right has been exercised——

If it is exercised, there is no case.

Major de Valera

And if a sum was fixed when the land was being taken over out of extraordinary caution——

We cannot deal with applications of this law. The case may have been wrongly dealt with, but so far as I know, and certainly so far as the researches of those concerned with this measure go, they have gone through everything to get some period of limitation fixed in respect of everything that they can think of arising by way of rent charges on land, and so on.

Major de Valera

I think Deputy Moylan's point is covered, if he is satisfied with a period of 20 years.

No. The 12-year period which is made effective by amendment No. 22 only refers to the things to which it is relevant.

Major de Valera

This is one of the things.

I doubt very much if what Deputy Moylan said could be brought in under it.

Major de Valera

"Not exceeding life". It could be life.

And "not being an exclusive right of residence". Then it is covered.

All those who could claim these charges are dead.

Major de Valera

In that case, the person showing title has only to show there was no claim within 12 years.

Major de Valera

The Statute, if anything, will make that definite.

Sections 20 to 22, inclusive, cover every case Deputy Moylan spoke of.

Amendment agreed to.

I move amendment No. 23:—

In page 20, before Section 37, to insert the following new section:—

At the expiration of the period fixed by this Act for any person to bring an action in respect of a right in the nature of a lien for money's worth in or over land for a limited period not exceeding life, such as a right of support or a right of residence, not being an exclusive right of residence in or on a specified part of the land, the said right shall be extinguished.

Amendment agreed to.

I move amendment No. 24:—

In page 22, Section 44 (1) (c), line 52, to delete "When" and substitute "Where".

Amendment agreed to.

I move amendment No. 25:—

In page 23, Section 44 (1), to delete paragraph (d), lines 1 to 6, and substitute the following paragraph:—

(d) None of the following actions—

(i) an action to recover land or money charged on land,

(ii) an action by an incumbrancer claiming sale of land,

(iii) an action in respect of a right in the nature of a lien for money's worth in or over land for a limited period not exceeding life, such as a right of support or a right of residence, not being an exclusive right of residence in or on a specified part of the land,

shall be brought by virtue of paragraph (a) of this sub-section by any person after the expiration of thirty years from the date on which the right of action accrued to that person or to some person through whom he claims.

Amendment agreed to.

I move amendment No. 26:—

In page 23, Section 46 (1) (a), in line 52, before "any" to insert "to any person (other than a mortgagee)".

Amendment agreed to.

I move amendment No. 27:—

In page 23, Section 46 (1), line 55, before "shall" to insert "of action".

Amendment agreed to.

I move amendment No. 28:—

In page 24, to delete Section 47, lines 6 to 12, and substitute the following new section:—

Where—

(a) the right of a mortgagee of land to bring an action to recover the land has accrued, and

(b) either—

(i) the person in possession of the land acknowledges the mortgagee's title to the land, or

(ii) the person in possession of the land or the person liable for the mortgage debt acknowledges the debt,

the right of action shall be deemed to have accrued on and not before the date of the acknowledgment.

Amendment agreed to.

I move amendment No. 29:—

In page 24, Section 48, lines 16 and 17, to delete paragraph (b) and substitute the following paragraph—

(b) the person liable for the debt secured by the incumbrance acknowledges the debt.

Amendment agreed to.

I move amendment No. 30:—

In page 24, Section 48, line 18, before "shall" to insert "of action".

Amendment agreed to.

I move amendment No. 31:—

In page 24, before Section 50, to insert the following new section:—

Where—

(a) there has accrued a right of action in respect of a right in the nature of a lien for money's worth in or over land for a limited period not exceeding life, such as a right of support or a right of residence, not being an exclusive right of residence in or on a specified part of the land, and

(b) the person in possession of the land acknowledges the right hereinbefore secondly mentioned,

the right of action shall be deemed to have accrued on and not before the date of the acknowledgment.

Amendment agreed to.

I move amendment No. 32:—

In page 24, Section 50, line 31, before "shall" to insert "of action".

Amendment agreed to.

I move amendment No. 33:—

In page 24, Section 50, to add to the section the following new sub-section:—

(2) Where—

(a) the right of action of a mortgagee of land to recover the mortgage debt has accrued, and

(b) the person in possession of the land acknowledges the mortgagee's title to the land,

the right of action shall be deemed to have accrued on and not before the date of the acknowledgment.

Amendment agreed to.

I move amendment No. 34:—

In page 24, Section 51, line 38, before "shall" to insert "of action".

Amendment agreed to.

I move amendment No. 35:—

In page 25, Section 52, to delete sub-section (2), lines 3 to 8, and substitute the following sub-section:—

(2) An acknowledgment under section *, *, *, *, *, * or * of this Act—

(a) may be made to the agent of the person by whom it is required to be made under whichever of those sections is applicable, and

(b) shall be made to the person or the agent of the person whose title, right, equity of redemption or claim (as the case may be) is being acknowledged.

The sections, I presume, will have to be put in, or can we leave it blank and have them fitted in?

The footnote does not entirely clarify this. It says: "The present Sections 46, 47, 48, 49, the section proposed to be inserted by amendment No. 31 and the present Sections 50 and 51." Amendment No. 31 becomes the new Section 51. Therefore the present Sections 50 and 51 must become 51 and 52. I suggest the amendment should read:—

(2) An acknowledgment under Sections 46, 47, 48, 49, 50, 51 or 52 of this Act——

Major de Valera

This is a rather peculiar Bill. The usual practice, when we come to the Report Stage, is that the Bill goes on to its final stage and the last printing. In view of the complexity of this measure, would it not be advisable that the Bill should be in Bill form for the Fifth Stage? I am not suggesting we would have any objections or changes, but I am suggesting this with a view to possible drafting amendments that can occur when you have the type of problem the Attorney-General has put up here. He is hardly in a position to answer his own question there until he sees the whole thing assembled.

I think this is correct.

Major de Valera

It might be desirable to have the Bill completely assembled and the Fifth Stage postponed.

This is one of those pieces of legislation that must be carried to conclusion. I assert that the sections will be as I have read them— 46, 47, 48, 49, 50, 51 or 52. There is another more serious amendment than that. As the amendment appears on the Order Paper, it runs:—

(a) May be made to the agent of the person by whom it is required to be made under whichever of those sections is applicable, and

That "may be made to the" should be "may be made by the". Paragraph (b) of the same amendment, as it appears on the Order Paper, reads:

(b) shall be made to the person or the agent of the person whose title, right, equity of redemption or claim (as the case may be) is being acknowledged.

It is quite clear that the word "to" in paragraph (a) of the amendment ought to be "by".

Amendment, as amended, agreed to.

I move amendment No. 36:—

In page 25, Section 53 (2) (i), line 19, to delete "only bind" and substitute "bind only".

Amendment agreed to.

I move amendment No. 37:—

In page 25, Section 53 (2) (ii), line 29, before "the whole" to insert "the value of".

Amendment agreed to.

I move amendment No. 38:—

In page 26, Section 56, line 7, before "shall" to insert "of action".

Amendment agreed to.

I move amendment No. 39:—

In page 26, Section 56, line 8, before "payment" to insert "the".

Amendment agreed to.

I move amendment No. 40:—

In page 26, Section 57, line 15, before "shall" to insert "of action".

Amendment agreed to.

I move amendment No. 41:—

In page 26, Section 57, line 16, before "payment" to insert "the".

Amendment agreed to.

I move amendment No. 42:—

In page 26, Section 59 (1), line 30, before "shall" to insert "of action".

Amendment agreed to.

I move amendment No. 43:—

In page 26, Section 59 (1), line 31, before "payment" to insert "the".

Amendment agreed to.

I move amendment No. 44:—

In page 26, Section 60, line 41, before "shall" to insert "of action".

Amendment agreed to.

I move amendment No. 45:—

In page 26, Section 60, line 42, to delete "last".

Amendment agreed to.

I move amendment No. 46:—

In pages 26 and 27, to delete Section 61, lines 43 to 46 on page 26 and lines 1 and 2 on page 27, and substitute the following new section:—

A payment under Section 56, 57, 58, 59 or 60 of this Act—

(a) may be made by the agent of the person by whom it is required to be made under whichever of those sections is applicable,

(b) shall be made to the person or the agent of the person in respect of whose claim the payment is being made.

Again, a change has to be made. We see "A payment under" and then the sections are enumerated. These sections have all been set back one by reason of the fact that we put in a new section before Section 50. They should be 57, 58, 59, 60 or 61 here. It is clearly necessary. We will drop "56" and say "57, 58, 59, 60 or 61".

Amendment agreed to.

I move amendment No. 47:—

In page 27, Section 62 (2) (ii), line 27, before "the" where it first occurs to insert "the value of".

Amendment agreed to.

I move amendment No. 48:—

In page 29, Section 68 (2) (a) (i), line 33, to delete "to whom" and substitute "on whom".

Amendment agreed to.

I move amendment No. 49:—

In page 29, Section 68 (2) (a) (iv), line 41, before "in" where it secondly occurs to insert "for".

Amendment agreed to.

I move amendment No. 50:—

In page 30, Section 72, line 18, before "an" where it secondly occurs to insert "to".

Amendment agreed to.

I move amendment No. 51:—

In page 31, in the Schedule, Part II, between the entries relating to 7 & 8 Vic. c.27 and 16 & 17 Vic. c.113, to insert—

14 & 15 Vic. c. 93.

Petty Sessions (Ireland) Act, 1851.

Paragraph 4 of Section 10, save in so far as it relates to summary proceedings of a criminal nature in the District Court.

Amendment agreed to.

I move amendment No. 52:—

In page 31, in the Schedule, Part II, between the entries relating to 19 & 20 Vic. c.97 and 23 & 24 Vic. c.38, to insert—

22 Vic. c. 14.

Manor Courts Abolition (Ireland) Act, 1859.

The whole Act.

Amendment agreed to.
Bill, as amended, received for final consideration.
Agreed to take Final Stage now.
Question proposed: "That the Bill do now pass."

Major de Valera

To a certain extent, this Bill will in some respects, I am sure, prove to be experimental. There will be a likelihood of some hiatus here or there, or that a judicial decision will cause an amendment or bring up the question of moving amendments to it. In the nature of a Bill like this, would it not be a good idea if the Minister set himself the task of having this Bill reviewed within a year of its coming into operation? The tendency is to let legislation such as this run for a long time without attending to it. I wonder if the Minister would be prepared to bring the Bill forward for consideration again? Our position is that, short of a substantive motion, it is very difficult to raise the matter unless the Government raises it. Some method should be taken to raise it again.

We are prepared to consider any case that may arise.

Major de Valera

You will probably have one or two.

Question put and agreed to.
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