Vol. 226 No. 8
I move that the Committee agree with the Seanad in amendment No. 1:
In subsection (1), line 31, "and ‘used for the purposes of business' means used wholly or in part for the purposes of business" inserted after "public service".
This is a drafting amendment.
This has nothing to do with grammar or punctuation?
No.
I move that the Committee agree with the Seanad in amendment No. 2:
In subsection (2), lines 39 to 48, paragraph (d) deleted and the following paragraph substituted:
"() in case the land is a tenement, within the meaning of the Act of 1931—
(i) a person occupying the land under a lease for a term of not less then 99 years which will not expire within 25 years after the date of the service by the person of a notice under section 4 of this Act in relation to the land and which reserves a yearly rent (whether redeemed at any time or not) of an amount that is less than the amount of the rateable valuation of the land at the commencement of this Act, and
(ii) a person who, or whose predecessors in title, has or have been continuously in occupation of the land as yearly tenants during the whole of the period of twenty-five years next preceding the date of the service by the person of a notice under section 4 of this Act in relation to the land at a yearly rent of an amount that, at the date of the service of the notice aforesaid, is less than the amount of the rateable valuation of the land at that date."
Amendments Nos. 8 and 9 seem to be related.
These are the most important amendments that have come back from the Seanad and they are as a result of an undertaking I gave to Deputy O'Higgins on Report Stage in the Dáil that I would extend further the categories entitled to benefit under the purchase provisions of the Bill. He made the point that the provisions should be extended to lessees holding under certain long leases at very low rents as well as to yearly tenants. This extension was generally welcomed in the Seanad.
The Minister has met my point of view very fairly but not fully. I had considered putting down an amendment to the Seanad amendment, with a view to eliminating the tying up between the definition of "tenement" in the Landlord and Tenant Act, 1931, and the new category of persons now being allowed in under this definition of "tenement". As I say, the Minister has met me fairly in the matter and possibly it is better to leave it in accordance with the Seanad amendment, which, as the Minister has explained, not merely takes in yearly tenants but balances matters by allowing lessees into the same position. It did seem to be rather unbalanced before, where a person who had what might be regarded as a minimal interest in the land as a tenant from year to year was placed in a more advantageous position than a person who held under a lease.
I move that the Committee agree with the Seanad in amendment No. 3:
In subsection (3) (i), page 5, lines 1 and 2, "dwellings" deleted and "flats" substituted.
This is a drafting amendment. The word "flats" is more appropriate than the word "dwellings".
I move that the Committee agree with the Seanad in amendment No. 4:
In subsection (3) (i), page 5, line 2 "and" deleted and ", being a lease" substituted.
Amendments Nos. 4 and 6 may be taken together.
These are again drafting amendments. It improves the wording of the subsection.
I move that the Committee agree with the Seanad in amendment No. 5:
In subsection (3) (i), page 5, line 5, "(not being provisions enabling such rent to be altered once only and within five years from such commencement or upon the erection after such commencement of any buildings upon the land or upon the breach of a covenant, condition or agreement in the lease)" inserted after "lease".
This is mainly a drafting amendment but it was also designed to clarify that lessees will not be denied the right of purchase although the type of lease which the builder of the houses may have taken contains a rent review clause. As the House knows, any lease with a variation clause in it from after X number of years is excluded from the terms of the Bill. There are cases where a lease is entered into and the rent is not finally fixed until the house is built or until some specified time after the lease has been granted. We want to make sure that that type of lease is not excluded from the right to purchase. It is in ease of the tenant. There was a danger that that category might be excluded.
I move that the Committee agree with the Seanad in amendment No. 6:
In subsection (3) (ii), page 5, line 8, "and" deleted and ", being a lease which" substituted.
I move that the Committee agree with the Seanad in amendment No. 7:
In subsection (4) (a), page 5, line 29, "or" deleted.
This is a drafting amendment.
I move that the Committee agree with the Seanad in amendment No. 8:
In subsection (4) (b), page 5, line 30, "as lessee under a lease of the kind specified in paragraph (d) of subsection (2) of this section or" inserted before "as".
I move that the Committee agree with the Seanad in amendment No. 9:
In subsection (5) (b), page 5, line 45, "demised by a lease or" inserted before "held".
I move that the Committee agree with the Seanad in amendment No. 10:
Before section 4 the following new section inserted:
"A person who proposes to acquire the fee simple in land by virtue of this Act shall serve a notice in the prescribed form upon each of the following persons who can be found and ascertained, that is to say, the person who is for the time being entitled to the next superior interest in the land, every (if any) person who is, in relation to the land, the superior lessor of the person so proposing and every (if any) person who is the owner of an incumbrance thereon."
This redraft of section 4 is designed to clarify doubts which had arisen as to the drafting of the original section. The only difference between the old section and the new section is that the new one envisages the possibility that some of the persons on whom notice must be served by a tenant who proposes to purchase his fee simple cannot be found. Taken with the other consequential amendments, it enables the procedure to be completed in these circumstances. The case was made that, if some of the people to be served could not be found, under the section as originally drafted the whole purchase process could be held up. We are now making it quite clear that the procedure can be completed in that event.
Would the Minister clarify this? Who decides whether or not the persons can be found or ascertained? Is there going to be a procedure under regulation or anything else to say what reasonable steps must be taken?
In the last analysis, this would have to be decided by the county registrar. Assuming a person makes the case that the holder of an interest concerned cannot be found, that case would have to be proved before the county registrar. He would have to satisfy himself of that fact.
The county registrar will only come into it in the event of dispute or difficulty? I am wondering on the general grounds of title——
You have a difficulty there which the county registrar can deal with under section 8, in the ordinary case. On balance, I thought it was better to go——
It is better to see how it runs but it might run into difficulty.
It could, indeed.
It might have to be looked at by an amending Act.
There may be a danger there, but on balance, it is better than depriving a number of legitimate tenants of their rights to purchase.
I move that the Committee agree with the Seanad in amendment No. 11:
Section deleted.
I move that the Committee agree with the Seanad in amendment No. 12:
In subsection (1) (a), line 15, "and any other information reasonably necessary for the purpose aforesaid" inserted before ", and".
Amendments 12 and 13 may be taken together.
The purpose of these amendments is to enable the tenant who proposes to purchase the fee simple to get additional information which may be necessary to enable him to find out who the people are on whom he must serve notice so as to comply with the procedure.
I move that the Committee agree with the Seanad in amendment No. 13:
In subsection (2), line 23, "and any other information reasonably necessary for the purpose specified in subsection (1) of this section" inserted after "served".
I move that the Committee agree with the Seanad in amendment No. 14:
In subsection (1), lines 30 to 32 deleted, and "of having a fiduciary capacity or a limited estate" substituted.
This is a drafting amendment.
I move that the Committee agree with the Seanad in amendment No. 15:
In subsection (4) page 8, line 4, "Court" deleted and "county registrar" substituted.
The purpose of this amendment is to enable the county registrar to order the payment of the purchase money into the Circuit Court rather than having an application to the court itself for such an order. County registrars are doing this every day in the ordinary course of their duty. The disbursement of the purchase money will, of course, still be a function of the court. It is to ensure that the court deals with the money. The court is substituted for the county registrar.
Would the Minister explain that again?
I am sorry; the idea is to ensure that the purchase money is paid into the court rather than have an application to the court itself for an order.
It is paid into the court but the registrar will have the authority to pay it out?
No; the court will pay it out. But there is no need for an application to be made to the court for the money to be paid in. The county registrar will automatically pay into the court. The court then disburses.
In fact, the county registrar pays it in?
Yes.
(Cavan): There is some similar machinery under the Trustee Acts at the moment?
Yes, there is that procedure there already.
I move that the Committee agree with the Seanad in amendment No. 16:
In page 8, a new subsection added to the section as follows:
"( ) Where a person upon whom a notice under section 4 of this Act in relation to land is required to be served cannot be found or ascertained, the person shall be deemed, for the purposes of this section, to be a person who is required by this Act to convey or join in conveying the fee simple in the land."
I move that the Committee agree with the Seanad in amendment No. 17:
In page 8, a new subsection added to the section as follows:
"( ) A power conferred on a county registrar by this section or by section 14 of this Act shall be exercised in relation to an infant or a person of unsound mind who is a ward of court only by leave of the court of which he is a ward, and the power conferred on the Court by subsection (4) of this section shall be exercised in relation to any such ward who is a ward of the High Court in accordance with the directions of the High Court."
The point was made in the Seanad on section 7 that, as it was drafted, there might be some impinging on the wardship jurisdiction of the courts. This amendment provides a saver so as to spell out that in any case of wardship the jurisdiction of the courts is still paramount. The powers conferred on the registrar will in no way derogate from the fundamental jurisdiction of the courts in regard to wardship.
Is the responsibility on the county registrar or on the applicant to apprise the court of the application?
The county registrar.
It is a good saver. It does make it clear that the power can only be exercised by leave of the court. It is the machinery for obtaining leave of the court that I am querying.
The onus would be on the county registrar. "A power conferred on a county registrar by this section or by section 14 of this Act shall be exercised ... who is a ward of court ...". That would seem to place the onus on the county registrar. Only by leave of the courts can he exercise this power under the section.
No. This is a person already a ward of court whom we are talking about. We are providing here that the power conferred on the county registrar under section 14 will be exercised only by leave of the court in whose wardship the ward is. I am wondering is it left a little too open. I do not want to hold up this Bill. I fully realise that if we start making amendments now, it will have to go back to the Seanad.
It is inferential here that the county registrar——
Obviously, the county registrar cannot act unless he gets a direction. I suppose it is up to him to do it.
It is.
If any county registrar adopts the attitude that it is not his business but the business of the applicant to go to the court, I think at least it should be understood that we mean here that the county registrar should do it. We intend the county registrar to be responsible.
Yes. A reasonable county registrar would take the view I take. The unreasonable county registrar could say, I suppose, that it was not part of his function but I doubt it.
I have said this so often that I nearly bore myself saying it, but the difficulty is that when these things go into court for interpretation, the courts can only have regard to what is in the section we pass. They cannot have regard to an expression of opinion, whether of the Minister, myself or any Deputy. For that reason, where an obligation is being imposed on anyone, whether an official or not or whether it is being made a duty of an applicant or a committee, for example in the case of a person of unsound mind, unless we write into the Act what should be done, there is the danger that the court afterwards interpreting the Act, comes to the conclusion that what it says is not, in fact, what was intended here. I do not want to hold up matters; I do not want the Bill delayed. This is the kind of thing that perhaps the Minister's Department might look at in case it runs into any snags or difficulties which would require a speedy amending Bill.
As it happens on this aspect of amendment, there is a Commission on landlord and tenant law sitting at the moment and I shall have legislation arising out of their interim report dealing with the 1931 and 1958 Acts. This should come up inside the next 12 months so that we shall have a chance to mend our hands in respect of any matters that may require amendment.
I move that the Committee agree with the Seanad in amendment No. 18:
In line 12, "the person to whom the rent is payable and upon" deleted and "each of the following persons who can be found and ascertained, that is to say, the person to whom the rent is payable and" substituted.
This is consequential on amendment No. 10.
I move that the Committee agree with the Seanad in amendment No. 19:
In subsection (1), all words from and including "being" in line 23 down to and including "other" in line 26 deleted and "having a fiduciary capacity or a" substituted.
This is consequential on amendment No. 14.
I move that the Committee agree with the Seanad in amendment No. 20:
A new subsection added to the section as follows:
"( ) Where a person upon whom a notice under section 12 of this Act in relation to rent is required to be served cannot be found or ascertained, the person shall be deemed, for the purposes of this section, to be a person who is required by this Act to join in the apportionment of the rent."
This is related to amendment No. 10:
I move that the Committee agree with the Seanad in amendment No. 21:
In subsection (3) (d), all words from and including "before" in line 48 down to and including "person" in line 49 deleted.
There was some objection taken in the Seanad regarding the examination of a witness before an officer of the court or any other person. The view was expressed in the Seanad that the power of examining witnesses should be confined to the county registrar himself and that there were dangers in giving him discretion to have any other officer or any other person deputed to examine a witness. Particular objection was taken to the global nature of the phrase "any other person" and I have decided by this amendment to delete the words "before an officer of the court or any other person". Its effect will be to require the county registrar to conduct an examination of a witness himself but not to order such an examination before an officer of the court or any other person.
He can go to an adjoining county registrar?
That is covered later.
This amendment means it must go to an adjoining registrar?
No, that is under the next amendment.
I thought it was No. 22 we were discussing.
No; it is No. 21 which provides for the deletion of a phrase which was there.
But taking the two together what is now the effect?
The effect of amendment No. 22 is that the county registrar can refer an arbitration to another county registrar where he may have a personal interest. It can happen that the county registrar could have a personal interest, and in that case he can depute the whole job to another county registrar. In amendment No. 21 we are preventing any county registrar from deputing the job of examining a witness to another officer of the court or to any other person.
I move that the Committee agree with the Seanad in amendment No. 22:
Before subsection (4) a new subsection inserted as follows:
"( ) Whenever it appears to a county registrar for any county that he cannot properly deal with a matter falling to be determined by his arbitration under this Act by reason of the fact that he has a personal interest therein or such personal knowledge of the facts or of the parties as might prejudice his determination of the matter, he shall nominate the county registrar for an adjoining county to hear and determine the matter and, upon such nomination, the matter may be heard and determined accordingly."
I move that the Committee agree with the Seanad in amendment No. 23:
In paragraph (a), page 11, lines 19 to 21, subparagraph (iv) deleted and the following subparagraphs substituted:
"( ) if the land is used for the purposes of business or exceeds one acre in area and is not used for the purposes of business, the area and nature of the land, its location and user and the state of repair of any buildings or structures thereon,
( ) the price paid for the fee simple or any other interest in the land on a sale taking place on or after the 22nd day of May, 1964,".
This amendment proposes to insert two new matters into the list of things which must be taken into consideration by a county registrar in deciding the purchase price. The first is a paragraph in substitution for one already in the section, and its effect would be to require the county registrar to take into consideration the nature of the land, its location and user, only where the land was used for the purposes of business, or where it exceeded an acre, in either of these cases, to consider also the area of the land. The second paragraph requires the county registrar to have regard to the price which the landlord paid for the fee simple if he purchased it since the Ground Rents Commission reported.
The first new matter arose as a result of a deputation to me from the Combined Residents Association in Dublin. They wanted to exclude from this the ordinary type of residence so that if the county registrar proposed, as was envisaged, to inflate the compensation to be paid, which he might do if he took into consideration the nature of the land, its location and user, that should only apply to business premises or land in excess of one acre. I think that is fair enough because it is only in the case of business premises that problems would arise in relation to the location and user of the land. Where a person is merely buying his own home we should narrow the area of compensation for this purpose. The Residents Association put this to me and I acceded to their view. I think this is reasonable enough. If any sale took place since the report of the Commission, the price paid for the fee simple or any other interest in the land on a sale taking place on or after 22nd May, 1964, that should be taken into account by the county registrar.
Is that the date of publication or presentation? It should be the date of publication if it is not.
The date here is the date of signature.
I do not want to hold up the Bill, but I think it is fair that it should be the date of publication.
There is only a month in it. Publication took place four weeks after presentation.
I move that the Committee agree with the Seanad in amendment No. 24:
In paragraph (b) (ii), page 11, lines 44 and 45, "expire twenty-five years or more" deleted and "not expire within twenty-five years" substituted.
This is a drafting amendment and its purpose is to ensure that fee farm grants would also be included in the type of lease which attracts the right of purchase as a result of amendment No. 2. The paragraph, as originally phrased, read "a lease which will expire twenty-five years or more..." Since there is no question of expiry in the case of fee farm grants, it could be argued that, if phrased that way, the Bill would not apply to fee farm grants, which of course it does.
I move that the Committee agree with the Seanad in amendment No. 25:
In page 12, a new subsection added to the section as follows:
"( ) Where the purchase price of the fee simple or any other interest in land being acquired under this Act has been determined by arbitration under this Act, the county registrar who made the determination shall, if requested by a party to the arbitration to do so—
(a) state whether in making the determination he has had regard to a matter or matters of the kind referred to in section 18 (1) (a) (viii) of this Act, and
(b) if he has so had, specify the matter or matters.".
The purpose of this amendment is to provide that where a county registrar in deciding a purchase price had regard to section 18 (1) (a) (viii)—"such other matters as are in the opinion of the county registrar relevant to the determination of the purchase price"— he must specify what the relevant matters are. The view was held that if a county registrar for one reason or another had regard to these other matters in determining the purchase price, it was only right and proper that he should have the responsibility of specifying the matters to which he had regard when making an assessment of the purchase price.
I am not an expert on grammar but subsection (b) seems to read most peculiarly. It would seem to be simpler to say, "if so, to specify the matters" rather than, "if he has so had..." It is only a comment.
I move that the Committee agree with the Seanad in amendment No. 26:
In subsection (2), line 30, "from time to time remit" deleted and "remit, before giving its decision," substituted.
The purpose of this amendment is to ensure that when the Circuit Court on an appeal from an award of the county registrar under section 22, wants to remit the case to the county registrar or to another county registrar, it will do so before giving its decision. This will enable the court to refer a specific point to the reconsideration of the county registrar and then, on receipt of his report, to give its decision on the appeal. It is really a matter of clarification.
Amendments Nos. 27, 28 and 29 are related and can be taken together.
I move that the Committee agree with the Seanad in amendment No. 27:
All words from and including "Where" in line 14 down to and including "is" in line 16 deleted and the following substituted:
"Where a lessee under a building or proprietary lease is, by virtue of a covenant, condition or agreement (whether contained in the lease or in an ancillary or collateral agreement, not being a mortgage),".
The purpose of this amendment with the two following amendments is to ensure that the section—which is designed to prevent landlords having conditions in leases requiring the lessees to insure the property either through them or with a specified company—will not be avoided by the device of the lessor putting the restriction due to an ancillary or collateral agreement. Specific cases have come to my notice where landlords anticipating this amendment were getting over the intention in the section by making a direction to insure set out in a collateral arrangement. We are making it quite plain in the amendment by prohibiting it in the case of ancillary or collateral agreements. We think this should finally close this very undesirable procedure.
I agree. This section has nothing to do with the principle in relation to ground rents in the Bill. It is desirable that this should be covered and I am glad that it is being done. Notwithstanding the Seanad amendment it seems to me that there is a difficulty which is likely to arise in the case of mortgages where you have the person advancing the money requiring a premises to be insured with a particular insurance company. This Bill does not relate to mortgages.
No, they are excluded.
It seems to me that there will still be a continuing difficulty as regards mortgages where you will have a person being required by the terms of the mortgage to insure with a particular insurance company.
Of course the section relates only to building and proprietary leases.
People may get loans on the purchase of a house held under a building or proprietary lease and may have to deal with mortgagees.
We have not sought here to include mortgages.
I am merely pointing out the principle involved which we are getting away from, the question of whether the lessor was entitled to tie the lessee to insure with a particular insurance company. Under this Bill he can no longer do that, but he can still require him to insure through a particular agent. Unfortunately I have not got the section in front of me.
The whole purpose of section 30 is to avoid that situation.
Would the Minister read the section for me?
It might be better if the Deputy looked at amendment No. 29. We include the agent.
I retained a lot of the Bill in my head, but not this bit.
The Deputy is aware that we are trying to avoid the danger of the landlord specifying an insurance company or agent.
Section 30 as it stands reads:
Where, by virtue of a covenant condition or agreement contained in a building or proprietary lease, the lessee under the lease is required to effect a contract of insurance in relation to a building or buildings on the land demised by the lease with a specified insurer or through a specified agent, the covenant, condition or agreement shall be construed and have effect as if it were a covenant, condition or agreement requiring the lessee to effect such contract of insurance, either directly or through any agent, as the case may be, with any insurer who is for the time being the holder of an assurance licence granted under the Insurance Act, 1936.
That seems to me to mean that the lessor can still specify the agency.
Is the Deputy reading amendment No. 29 with that?
I am going back. When I interrupted the Minister, I spoke on my recollection of what was in the section. On reading it, I reiterate what I said. My recollection was correct. As the section stood, I saw it could no longer require insurance with a particular company. It would require insurance through a particular agency.
Amendment No. 29 says:
or an agent selected or approved of either by the said lessor or another person
In line 18 of section 30 we are now inserting:
or an agent selected or approved of either by the said lessor or another person.
In other words, the question of the insurance through a particular agency is vague. The Minister says amendment No. 29 is rectifying that.
That is it, precisely.
The fact of taking it out will mean that the lessee will have to produce his premium receipt each year through the agency. The agency report to the lessor if the insurance is not renewed. Now he will have to produce it each year. It will add to the cost of the collection.
The section is intended to solve the double insurance problem.
The case incidence of double insurance is negligible.
It is there; you could have it imposed on the tenant.
Would it not be fair if the covenant were weighted in this respect—it could be broken? It is protecting the covenant. It could be broken if the insurance concerned undertook to notify the lessor if the policy were not renewed.
It is better to free it out and leave it on straight contract arrangements, if the tenant wishes.
In the vast majority of those cases, there is no profit for anybody in the agency. It is purely a method of notification of non-payment.
Cases of double insurance have been brought to notice.
They have arisen in certain building societies, as between tariff and non-tariff companies, but that has all changed now. It used to be the case some years ago, but not now.
The Deputy's point is that our freeing out is superfluous?
What happens now is that the freeing out is done voluntarily if the new proposed agency or company undertake to notify if it is not renewed. That means the person knows the premises are insured without any possible danger of double insurance. I agree with the Minister that double insurance should be avoided. In avoiding that, I do not want to have the other trouble brought in.
I wonder is the Minister achieving the result he wants to achieve? Would he look at what is being left in the section? Amendments Nos. 28 and 29 deal with insertions in line 18. If the Minister continues with that section, putting in the amendments agreed to by the Seanad, it will read:
.... building or buildings on the land demised by the lease with a specified insurer or through a specified agent, or an agent selected or approved of either by the said lessor or another person...
That will be construed in this way. The covenant or conditions or agreement shall be construed, or have effect, as if it were a covenant requiring the lease either directly or through any agency. So far as the words "or through any agency" are concerned, does that not still leave it open to have a condition requiring insurance through a particular agency?
I would have thought, from a drafting point of view, that it would be "through an agent of his choice."
That is what "any agency" means.
I am not prepared to admit that. I do not think so.
If it does not mean that, what does it mean?
If it does not mean that, my problem is solved.
I will not hold it up on this.
I move that the Committee agree with the Seanad in amendment No. 28:
In line 18, "or an insurer selected or approved of either by the lessor under the lease or another person" inserted before "or".
I move that the Committee agree with the Seanad in amendment No. 29:
In line 18, "or an agent selected or approved of either by the said lessor or another person" inserted before ",the covenant".
I move that the Committee agree with the Seanad in amendment No. 30:
In subsection (1), line 43, "and so much of any contract made after the commencement of this Act as provides for the payment of all or any of the solicitor's costs of the lease of any party to the lease by any other party thereto shall be void" inserted after "lease".
This is a question which we had back and forth here in the Dáil and in the Seanad and one in which the Incorporated Law Society were particularly interested. The purpose of the amendment is to ensure that the prohibition of the payment of the lessor's costs by the lessee contained in the section will operate. It is an improvement on the drafting originally passed in the Dáil. The case for the improvement was put to me since then by the Incorporated Law Society. The matter was not fully clear. It is clear now and the provision meets the wishes of the Society.
I move that the Committee agree with the Seanad in amendment No. 31:
In subsection (2), line 45, "but does not include a mortgage by subdemise" inserted after "tenancy".
The purpose of the amendment is to exclude mortgages by subdemise from the provisions of section 32. The existing arrangement is that a person who borrows money by way of a mortgage, pays the costs of drawing up the mortgage. We are making sure that is continued by not including a mortgage by subdemise.
Is there a definition of "lease" for the purposes of section 32?
There is. There is also the general definition of "lease" in the 1931 Act.
Does that change the tenancy agreement of letting a house for three months, too? Is that now covered by section 32?
It is. Short-time lettings are within the definition of "lease", but section 32, subsection (2), also includes an agreement for a lease or for a tenancy.
I move that the Committee agree with the Seanad in amendment No. 32:
Before section 33 the following new section inserted:
"(1) Subject to subsection (2) of this section, so much of any contract made after the commencement of this Act as provides that any provision of this Act shall not apply in relation to a person or that the application of any such provision shall be varied, modified or restricted in any way in relation to a person shall be void.
(2) Nothing in this Act shall prevent a person from giving or accepting, for the purpose of the acquisition of the fee simple or other interest in land under this Act, or the apportionment of a rent under this Act, a shorter title to a fee simple or any other interest in land than the title which a purchaser is, in the absence of special contract, entitled to require."
This is a fairly substantial amendment which was suggested in the Seanad and with which I agree. Deputies will be aware that in Deasy's Act there are forfeiture provisions, which have existed since 1860, in regard to any tenant who, in breach of a covenant in his lease, carried out an assignment or sub-letting without the written consent of the landlord. The amendment proposes to repeal there provisions and to extend to breaches of the covenants concerned the same relief against forfeiture as the Conveyancing Act, 1881, extends to breaches of any other covenants—that is simple damages. Objections to these provisions in Deasy's Act have been of long standing. They provide too drastic a penalty for a breach which could arise due to negligence——
It could arise by the solicitors not being adequately instructed.
The professional bodies impressed on me that forfeiture was too onerous at this stage and has been the cause of trouble. It was put to me in the Seanad that we should repeal sections 10 and 18 of Deasy's Act. The forfeiture provisions contained in those sections now go by the board and any such assignment or sub-letting without consent now makes the tenant liable to damages for breach of covenant rather than forfeiture. It is an entirely new section which was put strongly in the Seanad and by the professions. It is not strictly relevant to the main ground rent provisions.
No. 32 provides that you cannot contract out of the Act.
I think we jumped that amendment.
I move that the Committee agree with the Seanad in amendment No. 33:
Before section 34 the following new section inserted:
(1) Sections 10 and 18 of the Landlord and Tenant Law Amendment Act, Ireland, 1860, and in section 14 (6) (i) of the Conveyancing Act, 1881, the words "To a covenant or condition against the assigning, underletting, parting with the possession, or disposing of the land leased; or" are hereby repealed.
(2) Where a breach of an agreement which, but for this section, would have been a contravention of the said section 10 or 18 took place before the commencement of this Act and a right of re-entry or forfeiture for the breach was not enforced and proceedings to enforce such right were not instituted before such commencement, this section shall, in relation to the breach, be deemed to have come into operation immediately before the occurrence of the breach."
I have just been referring to that amendment.
Then the Minister's previous observations are deemed to have been directed to this amendment. Will this be affected by a recent English decision whereby it now appears that if it happens, even in the smallest tenancy, that a person is taking a tenancy of a business premises, he now has to go right back to the freehold, examining all the leases on the way to see whether there is any covenant against shop user? This would mean an enormous burden on people taking small business lettings, say, like huckster shops.
It would, indeed.
Has the Minister seen the English decision?
I have not seen it but I have been informed of it. All this amendment does is to relieve the tenant of the penal sections of Deasy's Act and place him under the 1881 Act.
This English decision will involve an enormous amount of costs.
Perhaps the Minister would refer that decision to the Commission.
I was about to suggest that. There is a Commission sitting with a view to codification of the Landlord and Tenant Acts and I will certainly refer this English decision to his Lordship, Judge Conroy.
