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Dáil Éireann debate -
Thursday, 25 Nov 1971

Vol. 257 No. 3

Landlord and Tenant (Amendment) Bill, 1971: Report and Final Stages.

I want to say something in regard to a point that arose on Committee Stage but perhaps it would be better to say it on the Final Stage.

Yes, that would be better.

(Cavan): I agree to the Bill being Reported subject to the Minister clarifying section 11.

Bill received for final consideration.

Question proposed: "That the Bill do now pass."

On section 11 of the Bill as amended in Committee, Deputies Fitzpatrick and Ryan had tabled two amendments. These were amendments Nos. 11 and 12 on Committee Stage. I could not accept the amendments as they were put down because they seemed to create a far greater problem than the one they sought to correct. I was, however, afraid at the time that there was a different type of problem which was being highlighted by what Deputy Fitzpatrick said. I asked for time to consider that situation. In effect what Deputy Fitzpatrick said was that section 10 of the 1967 Rent Act prevents a person from selling his rent-controlled house without the consent of the landlord, that section 11 of the present Bill proposes to lift this restriction only where that person resides in the house and that if that person does not reside in the house, he can escape the restriction only by taking up residence in the house. This is wrong. First, section 10 of the 1967 Rent Act prevents the tenant of a controlled dwelling from selling without the consent in writing of the landlord except in certain cases. Secondly, under section 2 subsection (6) of the same Act, the owner-occupier of a house, that is an occupier who has a lease for more than 21 years, is in certain defined circumstances given the rights of the tenant of a controlled dwelling and is therefore caught by section 10. It was never intended that what I will call "section 2, subsection (6) tenants" should be caught by section 10 of the 1967 Act and section 10 of this Bill, which is now section 11 as amended on Committee, removes them and only them from the scope of section 10 of the 1967 Rent Act. Section 11 of this Bill corresponds exactly with what was caught accidentally by the 1967 Rent Act and for section 11 to attempt to do anything more than this is unnecessary and would be misleading.

Deputy Fitzpatrick raised the case of a person who holds a house under lease for more than 21 years and who has sublet that house. In such a case one or other of the following three situations must obtain and I emphasise "must" because there are only three sets of circumstances that could pertain. The first is that the sub-letting has ended by reason of the death of the tenant or by reason of the tenant giving up his tenancy or for some other similar reason. In such a case, the application of the Rent Act ceases under section 3, subsection (2), paragraph (f) of the 1960 Act, as amended by the 1967 Act.

(Cavan): Is that not subject to a certain poor law valuation?

Not in the case of a tenancy falling in after June of 1966. Therefore, it could no longer apply. The person in the case we are discussing, that is a person holding under a long lease—more than 21 years—who sublets and who regains possession after June, 1966, is not restricted in any way by section 10 of the 1967 Rent Act because paragraph (f) of subsection (2) of section 3 of the 1960 Act as amended, keeps him outside it. If, for example, he makes a new letting, post-June 1966, he has come into possession for the purposes of paragraph (f) and therefore the house has become de-controlled and the new letting is not a controlled letting.

The second circumstance is that the sub-letting has continued up to the present. In such a case the tenant under the sub-letting would, where the Rent Acts apply, be restricted in regard to assignment of his tenancy by section 10 of the 1967 Rent Act. This restriction will continue regardless of the enactment of section 11 of this Bill and nobody would suggest seriously that it should not continue. However, the lessee under the long lease is the landlord for the purposes of the Rent Acts in relation to the sub-letting and is not restricted by the Rent Acts in regard to any assignment that he may wish to make of his interest in the house. In other words, if a person is a 999-year lessee and lets to a weekly or a monthly tenant, he is the landlord for the purpose of the Rent Acts.

(Cavan): So that he would sell his interest?

Yes, without consent.

(Cavan): That was the point that was causing me concern.

As I have said, there are only three possibilities in this situation and the remaining one is that the lessee under the long lease, who would be the landlord in relation to the sub-letting, wishes to sell his interest to the sub-tenant. In this case, since he is the landlord, as explained in the second situation which I have dealt with, he is free to do so, so far as anything in the Rent Acts is concerned. It is the tenant's freedom to assign his tenancy that is restricted by section 10 of the 1967 Rent Act. That section imposes no such restriction on the landlord—in the Rent Act sense of landlord—in other words, it imposes no such restriction on the lessee under the long lease, in the case we are discussing.

I think the three situations I covered are the only three that are possible in the circumstances. Since paragraph (f) of subsection (2) of section 3 of the 1960 Rent Act clearly decontrolled the sort of situation that Deputy Fitzpatrick raised the last day, and which, at the time, I thought might well be caught and since I am now perfectly satisfied that in fact it is not caught, that is the reason that I did not put down an amendment on Report Stage. I would ask the House to pass the Bill as amended.

(Cavan): This Bill was welcomed by the Opposition parties when it was introduced. I say again that it is a useful Bill that has been required for a long time. The Minister has accepted some amendments here for which we are grateful and the Bill has, I think, been improved in this House.

I was apprehensive about section 2 (2) (a) and (b). It says that a sports club will be entitled to a new lease if—

(i) the land is held for the purpose of carrying on the sport under a lease for a term of not less than 21 years,

(ii) the land has been continuously occupied by the sports club for that purpose for the period of not less than 21 years immediately preceding the date of the application for a sporting lease,

I invited the Minister to insert the word "or" between those two paragraphs in order to ensure that the Bill might not be read by a court as requiring that the land would be held under a 21-year lease and that it had been used for sport during that period of 21 years. The Minister tells me that he is advised that "or" is implied between these two paragraphs. If that is so I am satisfied but the experienced practitioner who raised it with me is still not satisfied, and I want to go on record as saying that, if what the Minister has said and if the Minister's advice is not correct, then this Bill will not apply to any sports club unless that sports club has held or holds under a 21-year lease. I know that is not the Minister's intention. He has so said. I am just going on record now to put that case. If the Minister's advice is correct, and I trust it is, then this part of the Bill is satisfactory enough, but if the Minister's advice is not correct, then it is valueless.

Bear in mind there would be nothing inconsistent in reading these two paragraphs not as alternative paragraphs. The court could quite intelligently read them as not alternative because it could be held that:

the land is held for the purpose of carrying on the sport under a lease for a term of not less than 21 years.

The land must be held for the purpose of carrying on sport but it could be held for the purpose of carrying on sport and might not have been used for that purpose.

Paragraph (ii) goes on to say:

the land has been continuously occupied by the sports club for that purpose for the period of not less than 21 years immediately preceding the date of the application for a sporting lease.

It is conceivable that the court would interpret it as my correspondent fears it would be interpreted, but I am accepting, as I have to, what the Minister said, and I trust the Minister is right. I am sure he has the best of advice on it.

The same arguments would apply in respect of (b) (i) and (ii) of that section, (i) saying that a specified amount of money must be spent

on erecting permanent buildings or structures on the land which are used in connection with the land for that purpose;

and (ii) that

on reconstructing, altering, renovating or adapting any permanent buildings or structures on the land which are so used so as to render them more suitable for that purpose.

Again I invited the Minister to put "or" between those two paragraphs. He says it is not necessary. The same arguments are valid. Again, if the Minister is right, I am satisfied; if he is wrong the Bill will be a lot less useful.

The Minister also accepted amendments from Deputy Cosgrave, one amendment which will do something to relieve the plight of certain tenants on the Proby Estate. There are still a small number of tenants left out. The Minister says that for constitutional reasons he cannot do anything for them, or that, if he did do anything for them, he would set a precedent which would create an intolerable situation here. We can only hope that the Proby Estate will, in their generosity, and from a sense of fair play, meet these people.

I am particularly grateful to the Minister for putting section 10 into the Bill because it will give people who did not appreciate their rights between 1967 and 1969 an opportunity of availing of the provisions of section 4 of the 1967 Act. Finally I want to deal with the matter the Minister has just dealt with. The Minister's explanation emphasises the necessity for codifying all landlord and tenant law and all rent restrictions law.

This might make it worse.

(Cavan): I can see the difficulty of a general practitioner, who has to deal with everything from divorce and a mensa et toro to criminal injuries, rent restrictions, running-down actions and all the rest being able to put his finger on the explanation which the Minister has given, never mind the ordinary lay people who are affected by these obscure sections of the various Acts which the Minister has quoted. Anyway, the situations with which the practitioner, who drew this to my attention, was concerned were situations 2 and 3. Situation 2 was where a man holding under a long lease wants to sell subject to a tenancy. The Minister tells me that there is no problem there, to use a phrase of one of his senior colleagues, that that can be done without any trouble. The other situation is that if the lessee holding property under a long lease which he has let to a tenant wants to sell to that tenant again he can do so without any restriction under the code because, in fact, he is not the tenant but the landlord for the purpose of that situation. If that is so I am satisfied with it. Generally speaking, the Minister has met the House fairly on this Bill and it is an example of the way that legislation should be handled in this House.

Question put and agreed to.
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