Vol. 207 No. 1
I move amendment No. 1:
In subsection (1), page 8, line 6, to delete "(Ireland)".
I must, in all honesty, confess that this is nothing more than a correction of a simple, uncomplicated, mistake. The word "(Ireland)" should never have been there in the first place.
I move amendment No. 2:
In subsection (1), page 8, to delete line 27 and substitute
"(e) any company or other body of persons established by or by direction of any enactment;".
The purpose of this amendment is to broaden the definition of a statutory authority in order to include companies registered under the Companies Acts, 1908 to 1959, established in pursuance of a statutory obligation. These are companies which would normally be referred to as State sponsored. They include, for example, the Agricultural Credit Corporation, Mianraí Teoranta, the Irish Life Assurance Company, Comhlucht Siucra Éireann Teoranta, and so on. Deputies will remember that Deputy Sweetman raised this point on the Second Stage and this amendment is to meet the point he put forward on that stage.
I move amendment No. 3:
In subsection (1), page 8, line 32, to delete all words after "codicil", and to delete lines 33 and 34.
These words are being deleted because they are superfluous and, therefore, unnecessary.
The point I want to raise has, I think, already been brought to the Minister's attention. I suggest a simple amendment at a later stage might meet it. I refer to the definition of "leasehold interest" on Page 7. The Minister is aware that, for stamp duty purposes, two consecutive terms, if neither exceed 35 years, attract less stamp duty that one term in excess of that period. I suggest that in the definition of "leasehold interest" there is danger that, through inadvertence, and by implication on our part, that might interfere with the stamp duty position.
I am assured not.
I should be glad if the Minister would look into it because it is a matter that can be very, very easily remedied by simply inserting in line 41, I think it is, "for the purpose of this Act shall be deemed to create one continuous term". That would make it quite clear that it was only for the purpose of this Act and was not intended to have stamp duty implications.
The section begins "In this Act, save where the context otherwise requires". However, we will look into it.
That possibly covers it.
There is just a single point in connection with subsection (2). Would that not read more properly "The central office shall be the office for the registration of title of all land in the State"? After all, it is the title that is being registered.
I am advised this is the way the draftsman thinks it should be.
The Bill is a Bill for the registration of title. In those circumstances, it seems appropriate that the central office should be regarded as the office for the registration of title.
This is the phraseology in the existing Act. In addition to that, the draftsman's opinion is that the office will be used to register more than title to the land.
The other things would be registered only in so far as they affect the title—appurtenances, sporting rights, etc.
There will be three separate registers. There will be a register of freehold land.
That is title.
A register of leaseholds.
That is title.
A register of appurtenances.
That is affecting title.
No. Incorporeal rights such as sporting rights; there will be a register in which these things can be registered.
They will be registered only by virtue of the fact that they affect the title of the land that is registered.
They are more appropriate to the land than to the title. They run with the land.
They are rights running with the land but the reason they are registered is that they affect the title.
If I assure Deputy O'Higgins that the draftsman is absolutely satisfied this is the right way to do it, will he accept that?
It is not of any great importance.
This section deals with the Registrar of Titles. It provides in subsection (3):
No person shall be appointed to be Registrar of Titles unless at the time of his appointment he is either a barrister-at-law or a solicitor who has practised his profession for not less than eight years.
It is true to say that under this Bill the functions and powers of the Registrar of Titles are being extended very considerably. In part his functions are now becoming functions of a judicial nature. Under section 49, for example, he will be exercising powers which previously have been reserved to the courts. Under section 118 he is going to be the authority to determine claims against the Government for compensation and mistakes in the Land Registry. It is important in those circumstances, particularly having regard to his position in relation to the determination of claims under section 118, that the Registrar should be completely protected from the possibility of political, departmental or local pressure.
The suggestion I have to make is that he should be placed in the same position as the Comptroller and Auditor General and removable in the same manner as the Comptroller and Auditor General for misconduct or incapacity. Eight years' qualification as a solicitor or barrister seems to be rather short having regard to the extended functions which the Registrar is now going to get. It would be well for the Minister to look at that again. It would seem to be more appropriate in the circumstances that some longer period——
Is the Comptroller and Auditor General not in the Constitution?
He might be, but I am talking for the moment about the length of the qualification required in the legal profession. The period of eight years seems to be too short having regard to the additional powers, functions and responsibility which will rest on the shoulders of the Registrar when this Bill goes through. I should like the Minister to look at that again.
I do not mind at all considering making that eight any other figure which would commend itself to the House. I am sure Deputy O'Higgins after eight years in practice as a solicitor would regard himself as fully qualified for the position of Registrar should it be offered to him.
After more than 20 years' practice I am not sure I would.
I move amendment No. 4:
In page 10, between lines 35 and 36, to add to the section a new subsection as follows:
"(3) Any county and county borough amalgamated for the purposes of the Circuit Court shall be deemed to be one county for the purposes of section 7 and this section."
The Bill provides in sections 7 and 10 that there shall be a local office of the Land Registry in each county other than Dublin and that every such local office shall be under the management of the County Registrar of the particular county in which the office is situate. The object of this amendment is to make it clear that in the case of Cork, Limerick and Waterford, the county and county borough shall be deemed to be one county for the purposes of sections 7 and 10. Otherwise, those sections might be construed as requiring a local office to be established in each of the three county boroughs mentioned as well as in the counties themselves.
Section 11 states:
Provision shall be made by general rules for determining the relations between the Registrar and the several local registrars and the control to be exercised by the Registrar over each local registrar.
Would the Minister say exactly what that means?
I would say it means exactly what it says. What aspect is the Deputy not clear about?
When it refers to the relations between the Registrar and the several local registrars I take it the same rules governing the scheme of registration will apply all over and that there will be no question of one set of rules and requirements applying in local registries and others in other registries or the principal registry?
There is no question of that.
I move amendment No. 5:
In subsection (1), page 10, line 50, to delete "by or under this Act" and substitute "as such, or as Registrar of Deeds," and in lines 51 and 52 to delete "attached to the central office".
Since 1891 it has been the practice for the person appointed as Registrar of Titles to be appointed Registrar of Deeds also. This practice will be continued until the registration of deeds is completely replaced by the registration of titles and the Registry of Deeds is closed down. The object of this amendment is to enable the functions of the Registrar, in his capacity as Registrar of Deeds, to be exercised by such other officers as may be designated for the purpose by the Minister for Justice. This will allow a greater flexibility in the administration by the Registrar of the two Registries under his control. At present only the two Assistant Registrars of Deeds may exercise the functions of the Registrar of Deeds and this has given rise to some administrative difficulties.
This section deals with the question of fees. I do not think it should pass without some comment or explanation from the Minister. Under this section the Minister is being given authority, with the consent of the Minister for Finance, to make orders fixing the fees to be taken in the Land Registry in connection with the dealings that will take place there. It is made clear in subsection (2) of this section that the Minister is going to operate with the aim of making the Land Registry self-supporting. It is intended, when this Bill comes into force, that registration in the Land Registry will be compulsory. At the same time, the Minister is suggesting to the House that authority be given to him to fix fees in such a manner that the Land Registry will become self-supporting.
Rightly or wrongly, I visualise a vast extension of the Land Registry, both in buildings and in personnel, if they are going to handle the volume of work they are likely to be called on to handle when this Bill becomes law. I think it is going to be a very great imposition on people dealing with the sale and purchase of property if they are to be required to foot the bill for this. There is criticism from time to time of the fees, costs and so on, charged by solicitors. Under subsection (2) of this section, I think it only right to point out at this stage that, if that goes through unaltered, there is likely to be a very great increase in costs to the person engaged in buying and selling property—not at the solicitor's end but at the Revenue end by means of the increased fees they will be required to pay in order to make the Land Registry self-supporting.
As this is a matter of compulsion by the Government, it is only fair that the service should be provided in large measure by the Government and that the ordinary person who has cause to buy or sell property—I do not mean in the sense of speculating in buying or selling property—should not, by virtue of this legislation and particularly by virtue of subsection (2) of section 14, be required to face, as he probably will have to face, a considerable increase in Government impositions on him for those transactions.
Section 14 does not establish any new principle. The principle has always been there that the Land Registry should be self-supporting and there can be no question of departing from that principle. That principle was enshrined in section 8 of the original Registration of Title Act, 1891. I should point out that these registration fees are not a tax on a transaction. They have no relationship to stamp duty in any way. All the person is being asked to do is to pay for services provided and the practice is there already that the person concerned will pay no more than the service costs. There is no desire by the Government to make a profit on the Land Registry. They are only laying down a principle that it must pay for itself and to that extent, therefore, the person who is dealing with the Land Registry is paying no more and no less than exactly what he should pay for the service with which he is being provided.
Apart altogether from this measure, it is desirable that the Land Registry should be expanded along the lines indicated by Deputy O'Higgins. We have already taken steps to improve the accommodation situation and also, to a considerable extent, the staff. There are proposals on hand at the moment to make an important administrative change on the staff side in the Land Registry which I hope will be of considerable benefit. However, I do think most practitioners, if the question were put to them whether they would like a completely efficient Land Registry if it cost a little more in fees or an inefficient one with slightly lesser fees, would answer that they would prefer an efficient Land Registry in which their transactions would be promptly dealt with. Having said all that, I am not apprehensive that there would be any major increases in the fees payable in the Land Registry as a result of the expansion which will take place because of this Bill. I am carefully avoiding any opportunity of being political and of pointing out that the Deputy's Party in their time substantially increased the fees in the Land Registry.
There was a general increase in fees at the time.
I am not being political. I am not making this point.
The Minister is only making it, not for answer. I did not intend to deal with the point the Minister did not make. There are a few matters in relation to the Minister's remarks on Section 14 which I think it is as well to recall. The Minister said this was not a question of stamp duty. I agree with that. It is a question of the fees that will be fixed by him with the consent of the Minister for Finance in relation to dealings in the Land Registry. If you take stamp duty and registration fees into account, registered land is costing a person who buys property and the title as registered more than unregistered land, unregistered in the Land Registry sense, that is, registered in the Registry of Deeds.
Take the case of stamp duty and fees collected on the sale of property in four different categories of value, that is, £1,200, £3,000, £5,000 and £10,000. In the case of unregistered land, the amount paid to the State on the transaction where the value is £1,200 comes to £20. At the moment in regard to registered land where it is required to discharge equities, the total cost comes to £30.12. Therefore, in that case there is an extra imposition on the purchaser of £10.12. It would not be quite so high if the equities were already discharged. In fact the difference between unregistered land and registered land where equities have been discharged would be only £4.
The same pattern goes through all these cases. Where the value is £3,000, in the case of unregistered land the amount payable to the State in stamp duty and fees would be £92. In the case of registered land where equities require to be discharged, it would be £115 16s. In the case of property to the value of £5,000, on unregistered land the amount payable by way of stamp duty and fees would be £152. In the case of registered land where equities have to be discharged, it would be £180. Where the value is £10,000, on unregistered land the total would be £302 and on registered land where equities have to be discharged, £330. Therefore, in Land Registry dealings there is an additional rake-off for the State. At any rate as far as the purchaser is concerned, he has to put his hand deeper into his pocket when dealing with the Land Registry than when dealing with the Registry of Deeds. When that position already exists, I am apprehensive of what the position will be where the Minister is given carte blanche to fix whatever fees he thinks are necessary subject only to the consent of the Minister for Finance, which, I am sure, will be readily forthcoming when one has regard to the fact that the purpose of fixing the fees which the Minister will be undertaking will be to make the Land Registry self-supporting and to ensure it is not a charge on the Minister for Finance.
Like Deputy O'Higgins, I am slightly apprehensive about the effect of subsection (2). As the Minister knows, I am an enthusiastic supporter of the principle in the Bill, in the belief that it will lead to more efficient, quicker and, above all, cheaper transfers of property, but the principle that the Land Registry should be self-supporting—having regard to the fact that the Bill aims at bringing in all the property in the State—makes me wonder whether I am right in thinking this will lead to cheaper conveyancing.
It is undoubtedly true that in order to make the Land Registry as efficient as it should be, and to enable it to deal with the volume of business it will have to deal with, a considerable amount of money will have to be spent on it, and on increased staff. I suppose it is a question of mathematics, and one would need an actuary to work out how that will affect fees and the volume of business related to the increased staff. I have a feeling that it will lead to an increase in the actual fees per case. If that is so, I am afraid it will be rather unfortunate and it may take away a lot of the good the Minister is aiming to achieve.
I can understand that the Government—or any Government—considering this problem would say: "The principle has been established that the Land Registry should be self-supporting. Why should we change it?" On a cursory examination, it appears quite simple. You are dealing with people who are buying and selling property, and why should they not be expected to pay enough to make the Land Registry self-supporting? I suggest there may be room for reconsideration because the principle laid down in 1891 is not necessarily applicable to-day. We are bringing in all urban property under the Land Registry. Some was brought in before but now we are bringing in all urban property. Therefore, we are dealing with a phenomenon which did not exist in 1891. A large number of white collar workers are purchasing their own houses with great financial strain and effort on themselves, and any additional burden is a vast consideration so far as they are concerned. That is why I am concerned about this matter.
I suggest there may be a case for considering the Land Registry in the nature of a social service, having regard to the altered circumstances since 1891. I do not suggest it should be free, but there may be a case for considering that the State should subsidise it to some extent, if necessary, and if the fees become too expensive. Certainly a large proportion of the business dealt with by the Land Registry will be compulsory, as Deputy O'Higgins said. It will also be dealing with the business of people who have not got much money, and for that reason there may be a case for considering it as being in the nature of a social service. Perhaps the Minister could reconsider the matter even to the extent of taking out the obligation to make the Land Registry self-supporting, with a view to aiming at its being self-supporting, but if it were found that meant the fees were going too high, the Government would then reconsider the position.
So long as subsection (2) is left in the Bill, I am afraid it is simply a question of fees going up as costs go up, and as we know, it is difficult to amend a thing like that by itself. It is a very difficult problem for the Minister because the principle is there and it appears to be reasonable on the face of it, but I would ask him to reconsider the matter if he can do so.
I am afraid that certainly at this stage there is no question of our departing from that principle. In the years ahead, if the situation got out of control to the extent that Deputies fear—and about which I certainly am not apprehensive—that would be a different matter and the Government of the day would have to look at the situation and see whether an alternative was necessary.
I should like to emphasise that this is simply a payment for services rendered. There is no profit element in it for the State: it is a payment for a valuable service. I feel I should at this stage point out that the system of State registration of title is a very valuable one, and one which confers very great benefits on the people who have access to it. Furthermore, I want Deputies to remember that once you have your title registered in the Land Registry, the State guarantees that title, and undertakes to recompense you, and compensate you, for any mistake which may arise. Once you have had access to the service of the Land Registry to have your title registered, you are in a very special and happy position as a property owner. You have this State guarantee which is very valuable indeed, and from that point of view, I think that people who have access to the service should be prepared to pay for it, provided, of course, it is efficiently administered, that costs do not get out of line and that fees are reasonable for the service provided.
If the Minister could in some way insert that proviso, it would be a help: provided fees are reasonable for the service provided.
Who is to assess them?
There could be some guide.
What I meant was this——
Not what you said, I take it.
I do not recall exactly what words I used, but what I intended to say was that if we could be guaranteed that the Land Registry worked efficiently and well, then we could be assured that the fees would be reasonable because there would be no waste, and costs could not be excessive for the services provided.
The Minister is basing his case to a large extent on the fact that people are going to get a State guaranteed title.
That is a very important benefit.
I believe it is good in principle to have one registering authority rather than different types of registration, but from the point of view of the property or the property purchaser, we must remember that he is not asking for this. It is a benefit, if you like, that is being conferred by the Government. He will get his title registered in the Land Registry and, as the Minister says, it will be State guaranteed, but at the expense of the purchaser who is not asking for it.
As in any other business it can be hoped that as the turnover increases, the price will go down. The overheads will not increase in proportion to the increase in turnover.
That is a fallacy. Surely this is just the kind of transaction where the greater the increase in turnover, the greater the amount of work and the greater the expansion in staff that must take place.
There will be a considerable increase in the number of dealings and the overheads, such as they are, will be spread over a far greater number of dealings.
Especially to the extent that the Land Registry will be mechanised.
The actual stone and mortar will not require any more after the initial expansion, but the staff must increase, surely.
They need not increase in the ratio anticipated by the Deputy, particularly having regard to the point made by Deputy Colley that the Land Registry will become mechanised at the same time.
I want to point out in relation to Section 20 that it is an added argument in favour of wider and greater qualifications for the Registrar.
Is it not a repetition of Section 15 of the 1891 Act? It is not new.
It is in the 1891 Act.
I move amendment No. 6:
In subsection (1), page 13, line 20, to delete "1958" and substitute "1962".
I have again no alternative but to beat my breast and confess to a simple, humble mistake which is being rectified by the amendment.
I move amendment No. 7:
In subsection (1), page 13, line 33, to delete "or county borough".
Amendment No. 8 is consequential so the two amendments may be discussed together.
The suggestion in the two amendments is that urban property should be left outside the scope of the Bill for the moment —that is, property in county boroughs or urban council areas. My reason for making this suggestion is that it will cause great mapping difficulties to deal with urban property in this way. By the time compulsory registration has extended to what might be described as non-urban property, that operation in itself will take at least a decade. If, at the same time as the Land Registry is endeavouring to deal with non-urban property, it also has to deal with urban property, there is likely to be created a very great bottleneck in a number of departments in the Land Registry. Mapping difficulties will especially arise.
My suggestion to the Minister is that he should exclude urban property from the scope of the Bill at the moment. I have no doubt that after this Bill has been in operation for some years various amendments of one sort or another will be required, and that the Government of the day will be coming back to the House with an amending Bill. At that stage it may be that registration of non-urban property will have proceeded to an extent which would then make it a feasible proposition for the Land Registry to tackle the question of registration of urban property. The more I think of this at the moment, the more I become convinced that this Bill as it stands, in endeavouring to extend registration to urban property, will be utterly unsuccessful because of the mapping difficulties involved.
The effect of the amendments, as Deputy O'Higgins points out, would be to prevent the system of compulsory registration from being extended to urban land. To me, at any rate, these amendments are unacceptable because they would completely nullify what is one of the main objectives of the Bill. The bulk of land in rural areas is already registered and there would really be little point in providing for the extension of compulsory registration if we were only to think in terms of the remaining rural land at present not registered in the Land Registry.
On the Second Reading, I explained in detail to the House why I considered it desirable that compulsory registration should be extended to all land in the State. I think I can best answer Deputy O'Higgins's case by pointing out to him that on the Second Reading, and subsequently outside the House, I explained it is our intention to extend compulsory registration to an additional area only after we have become absolutely satisfied the Land Registry is dealing efficiently with what it already has on its plate, and that we do not contemplate adding a single piece of extra business to the Land Registry machinery until such time as we are satisfied that it is fully and adequately equipped to cope with it.
I think this should be a sufficient protection against the fears to which Deputy O'Higgins has given expression. The whole Bill is based on the idea that extension of the system of registration of title to all land in the State by means of compulsory registration is a desirable aim and if we were to exclude from the scope of this Bill urban property, then we would be nullifying to a large extent the whole aim and object of the Bill. I do not wish at this stage to attempt to forecast how long it will be before all the land in the country is registered in the Land Registry. It is a process that will take place over a considerable number of years: very hesitantly, I would mention 15 to 20 years. Thinking along those lines, I feel we can do this task to everybody's satisfaction: we can bring the Land Registry up to a state of efficiency and extend its staffing and other arrangements to the point where they will be able to cope with whatever additions we may make.
This amendment from that point of view and from Deputy O'Higgins's own point of view is, I think, unnecessary because no Minister for Justice would be so irresponsible as to add on areas whether urban or rural with which the Land Registry was not able to cope and thereby create confusion and disorder. I think we can be satisfied that the Ministers for Justice will operate the provisions of this Bill sensibly, reasonably and logically. They are not going to bring trouble on their own heads by asking the Land Registry to do impossible things and if there was any particular urban or rural area which would present exceptional difficulty, that will not be added on or brought inside the scope of compulsory registration until such time as the Minister is satisfied the Land Registry is in a position to cope with it.
I move amendment No. 9:
In page 14, line 2, after "person" to insert "(other than the Land Commission)".
The purpose of the amendment is to exempt the Land Commission from the sanction which Section 25 imposes for the enforcement of compulsory registration. It is clearly desirable that when the Land Commission buys land in a compulsory registration area that it should be bound in the same way as anybody else to register title to that land. On the other hand, as practical people, we must recognise that the Commission is in a special position by virtue of the large number of transactions in which it engages and the fact that it is discharging an important statutory function under the Land Purchase Acts. Because of these circumstances I think it would be unreasonable and pointless to allow Section 25 of this Bill to operate in the case of the Land Commission as the only effect of doing so would be to hinder the Commission in the discharge of the functions with which it has been entrusted by the Oireachtas.
I do not follow the Minister's reasoning on this. The fact that the Land Commission engage in a large number of transactions does not seem to me to be an argument in favour of excluding them from the provisions of Section 25 unless the Minister's argument is that the time limit imposed is unreasonably short to enable the Land Commission to have themselves registered within the prescribed period. If that is the case the Minister is making I agree with him because I intend to make a similar case for purchasers generally in the next two amendments.
My argument really is that the Land Commission is in a special position and while we would all hope, and by administrative measures try, to ensure that it would be a good citizen in this respect and set a headline for others in promptly registering——
Will the Land Commission have to register? They must register?
Yes.
All that is happening here is that the time limit is being removed? They do not come within the three months? Would it not be reasonable to have some time limit? Who is going to know that the Land Commission are the owners unless they are required at some stage to complete their registration?
We must realise that they are not like ordinary citizens. They are a State organisation.
I know that, but it is often important for one reason or another, to ascertain who is the owner. You do that in the Land Registry by inspecting and finding out from the maps and so on. If the Land Commission are not required to register within some period, even a much extended period, it might make things difficult.
I agree it does, but my point is that we must reasonably hope and expect that, being a State organisation, they will not be dilatory in this matter and that they realise the advantages of registration just as much as anybody and will be good citizens in this respect. They feel, because of the nature of their work——
But you are giving them absolution in advance, if they are not.
——and the vast number of these transactions that we should not place this sanction on them.
I move amendment No. 10:
In page 14, line 5, to delete "three" and substitute "six".
I think this amendment and No. 11 might be considered together. In No. 10, I suggest that the three months' time limit which the Minister suggests in the section should be extended to six. This section is one which provides that a person who purchases property will not in fact acquire any estate or interest in that property by virtue of his property deed unless within three months from the date of the deed he is actually registered as owner. I think Deputy Colley and others with practical experience will realise that there are definite difficulties and definite dangers in this situation. The idea in the section is not a new one. One of the difficulties in Land Registry matters as against the dealings that take place in the Registry of Deeds is that the transaction is effective only from the date of registration and, as between the two parties, the buyer and the seller, the purchaser parts with his money at the time the sale is being closed and he is being handed his Land Registry transfer. While he has parted with his money he is still not the owner until he gets that registered in the Land Registry. That is the present position.
There are various reasons why there can be delays even about lodging for registration. The deed will not be stamped until the sale is closed and it is necessary very frequently to have correspondence and negotiations with the Stamps Branch of the Revenue Commissioners on the question of stamp duties which has become quite a complicated subject, so that the application for registration might not take place for some time. If it was delayed through nobody's fault it might limit the period further in which registration could take place. I suggest the Minister will certainly not be harming his Bill and will, I think, be improving it, if he accepts that the three months should be extended to six and if he also accepts that instead of the effective time being when a person is registered in relation to the six months, it should be when the application for registration takes place.
