Before the House rose for lunch we were dealing with the actual fees payable in connection with applications under this Bill. The Minister said that he felt that once this Bill had gone through very little work would be involved other than for parties to call in to the Registrar of Titles. He was under the impression that once a person called in to the Registrar of Titles he would take it from there. He felt that it would hardly be necessary to get legal advice on it and that the staff in the Land Registry would be able to look after this matter. I pointed out that some previous good intentions of this nature failed. I gave the example of the granting of a letter of administration, which is a very stereotype job. This is a much more complex matter. I pointed out that while the Minister's intentions in this matter were admirable in my view they were impracticable. There was a large increase recently in Land Registry fees. Some of those fees have increased from £60 to £100.
Landlord and Tenant (Ground Rents) (No. 2) Bill, 1977: Committee Stage (Resumed).
I am afraid we are not dealing with Land Registry fees. We are dealing with proposed fees in the Bill.
They are proposed fees in the Land Registry.
They are not the fees the Deputy is dealing with at the moment.
The Minister, by the stroke of a pen, was able to increase the fees from £60 to £100. Section 23 (2) states:
The Minister, with the consent of the Minister for Finance, may by order fix the fees to be taken in the Land Registry for the purposes of this Part, other than the fees mentioned in subsection (1) and may revoke or amend any such order.
He may amend it upwards or downwards. The fees we are discussing to-day are not very great but the Minister, with the stroke of a pen, may decide that there are too many people calling in to do this job—and a lot of work has to be done by the staff in the Land Registry—and he may increase the fees upwards. I feel that the fees are too high. I believe that a small fee is desirable. I ask the Minister that in the ordinary issuing of the vesting certificate the £5 fee be reduced to £2. Deputy O'Keeffe and Deputy Desmond want the other ones in relation to the arbitration reduced from £12 to £10. I believe this fee should be reduced from £12 to £10.
I believe that if the applications are properly prepared and processed when they are sent to the Land Registry the amount of work the staff there need to do will be very little. A lot of the major work should be done before the applications come to the Land Registry and the fees should be reduced from £5 to £2. I am not very happy about the Minister reserving the right to amend the fees upwards. The Minister does not have to come to the House to increase those fees. I believe he should reduce the fees here.
I would like to make one final appeal to the Minister particularly in relation to the arbitration fee. I said earlier that I felt there was confusion here, and it is very important that there should not. At the moment the fees payable under the 1967 Act to the county registrar amount to £2. In addition, the person appearing before the county registrar has to pay his legal costs. What is the position under this Bill? There is an increase from £2 to £12 in the fees payable to the registrar, that is a 500 per cent increase. The main justification I get from the Minister is that there will be no need to engage a solicitor. He is really saying that for the privilege of not being legally represented the householder will pay an increased fee of 500 per cent to the registrar.
I accept that, apart from the right of anybody to be legally represented, if the matter was very simple there would be no need to be legally represented. I do not know if the Minister is aware of the complex issues which can arise on such an arbitration, which may involve evidence from architects, valuers and all sorts of people. If for example, there is less than 25 years to run in the lease an item that has to be taken into account is the reversionary rent that will be fixed after the term left in the lease has expired. In order to fix such a figure evidence is normally brought by valuers and so on. There is a conflict between the landlord and tenant, the landlord obviously looking for the highest figure and the tenant obviously looking for the lowest figure. In such a situation the registrar will not be there to help the tenant. He is there as arbitrator, to judge, to decide. While I accept that the hearing will be informal who will present the householder's point of view? Who will present his case to the best possible advantage? I suggest to the Minister that in the instance I have quoted, in the thousands of others that will arise, because of the complexities of any particular case or because of the problems of distance or of not understanding the provisions of the Bill, the tenant or householder will inevitably engage the services of a legal adviser to help him. It is all very well for the Minister to point to a big estate and say that they will come together, agree on a specific plan and get the consent of the landlord who may have the freehold interest. It would be fine if that could be done but that would be the exception rather than the rule.
In the majority of cases going to arbitration I suggest that the probability will be that the householder will have to engage and pay for legal help and at the same time, instead of paying £2, the fee presently payable to the county registrar on an arbitration, he will have to pay £12 to the registry. I am not making any political capital out of this but I believe it is in the interests of us all that we should reduce as much as possible the costs involved and simplify the procedures. I do not see a justification for such a substantial increase. The Minister might consider leaving the figure at £2 as an arbitration fee payable to the registry bearing in mind that in most cases the householder will have to engage the help of a solicitor and pay a solicitor. If the Minister accepts the situation as presented by me I do not think there is any justification for an increase from £2 to £12 in the arbitration fee.
I wish to support Deputies Enright and O'Keeffe. The Minister may get the impression that we are talking about a very small sum of money but we are making our case in accordance with the spirit of the Bill, to make it as simple and as cheap as possible for lessees to buy out their ground rent. The Minister should take into account the suggestion by Deputy O'Keeffe that people will get together to buy out their ground rent. As far as arbitration is concerned that would reduce the cost to the State. Because many of these cases will consist of multiple applications the Minister should settle for a round figure of £10, where there is arbitration, or £5 where it is not necessary. The purpose of the amendments is to honour the spirit of the Bill. The Minister should accept either of the amendments.
Quite a number of points have been raised again on this amendment. I thought we had disposed of a lot of them before the lunch break but we are back on them again. Deputy O'Keeffe's example of the determination of a gross rent or the fixing of the notional rent on renewal is a good one but this view as to how it will operate is incorrect. The registrar can determine this notional rent easily without a valuer. I should like to assure the Deputy that there is an important difference between court procedure where opposing evidence of values would be appropriate and, of course, arbitration.
I believe that Deputy Enright is genuinely mistaken with regard to the £5 fee, that this is going to be raised by order by me, or whoever follows me, whenever we decide. That is not so. I spelt out clearly that the fee of £5 for the vesting certificate is a fixed fee for the time this scheme is in operation. Deputy Enright could be mistaken in his reading of subsection 2 of section 23 which states, "other than the fees mentioned". I want the Deputy to be fully satisfied that the fee is fixed for vesting certificates purposes at £5.
If the Minister states that I am prepared to accept his word.
I could say to those who are looking for a reduction in the fee from £5 to £2 that there is a certain degree of contradiction involved. I am told that £5 is too much for the simple job that has to be done and yet I am told that to get that job done it will be necessary to get the assistance of the legal profession. I do not believe that that is necessary. It is a very simple operation for anybody who wants to get the vesting certificate. They can do it without the valued, though expensive help of the legal profession. I have gone out of my way to ensure that the operation of this scheme will be so simple that the legal profession will not be bothered unduly with regard to seeing whether or not it operates successfully.
Somewhere along the line we have heard that much wants more. I nailed my colours to the mast on behalf of the Government with regard to a £5 fee. During the course of the Second Stage debate I gave details of the cost of this to the Exchequer and I stated that we were prepared to subsidise it to that extent. I referred to the fact that the National Coalition in the Bill which they had the opportunity of processing, if they wished, had not nailed their colours to the mast with regard to the fixing of a fee. I pointed out that my predecessor, Senator Cooney, said that he could not see the fee being less than £25. That is on record but I do not wish to make any meat out of it. I am trying to put the demand for the reduction of what I regard to be a nominal charge, £5, in its proper perspective. It is five times cheaper than what my predecessor proposed.
Deputy O'Keeffe, with respect, is genuinely confused because during the course of the Second Stage debate he mentioned the £2 fee payable under the 1967 Act. On 22 February 1978, in reply to him, I said he was mistaken with regard to the nature of the £2 payable under the 1967 Act. I told him that every tenant who had looked into the question of purchasing his fee simple under the 1967 Act and every legal practitioner in the State knew that under that Act the £2 arbitration fee was only a minute proportion of the total legal cost that a tenant must bear. Under that Act the tenant is also liable for his own as well as the landlord's legal costs and it would be more reasonable to compare the £5 fee which is the maximum fee in this case with a figure of not less than £100. That still holds.
I am perfectly satisfied that the great majority of those who will be availing themselves of this scheme will be glad to do so particularly if they know, as many of them who have been involved in this ground rent issue for many years know, that what they are now getting for £5 they probably would not get for £100 or £200 if this £5 scheme which I am introducing was not there. I am perfectly satisfied that it is a nominal fee. I have given my reasons for it before lunch, and the Deputies representing the two Opposition parties will agree that £5 is a nominal fee, and no more for the amount of work being done and, of course, having due regard to the cost that would be incurred if the scheme were not there.
I want to make one last point. If £5 was the amount to be paid by the majority of householders it is something that I would be happy with, but I do not think I am getting through to the Minister—and I am not making a political point. The only person who can get away with the £5 fee is a person who can get in under section 20. In order to get in under section 20 he would have to get the consent of every superior interest, every mortgagee of such superior interests. Otherwise he cannot avail of that section. This is why, in pressing the Minister on the fees, I was stressing most strongly the arbitration fee as opposed to the section 20 fee, which is the £5 fee. It was on that basis that I was pushing the Minister about the cost of arbitration. I accept that it is fixed at £12. I suggest, however, that most people who would have to go to arbitration would have to get help in so doing. A county registrar has confirmed for me that the figure for arbitration at the moment is £2. I cannot push it any further. The Minister, in talking about the £5 fee, is not clear as to the limitations on the people who can benefit from that particular section. I cannot put it any farther.
Amendment No. 40 is in the names of Deputies O'Keeffe and Mrs. Desmond. Amendments Nos. 40a and 41 are related. The three may be discussed together.
I move amendment No. 40:
In page 13, lines 1 to 7, to delete subsections (2) and (3).
I should like some information from the Minister on subsections (2) and (3). My view, and I am sure it is the view of Deputy Mrs. Desmond, is that certain fees are fixed under the Act and these subsections refer to the fixing of further fees. Before we can argue it properly, I must say that we were under the impression that if you pay the fees as specified in the first subsection no further fees will be payable to the Land Registry. So that we take the view that there is no need for an enabling subsection to permit of any further fees. So, before going further, I, and I am sure Deputy Mrs. Desmond, would want to know what fees the Minister has in mind which he could charge under these two subsections.
The fixed fees, as I have already indicated, are for owner occupiers and owner occupiers only.
Two points arise here. May we take it that no further fees other than those in subsection (1) will be chargeable to owner occupiers? Before the Minister gives too ready an assurance on that, I will raise a practical point. When one deals with the Land Registry one deals on the basis of a folio number which relates to a map. Question: who produces the map; who pays for the map? Does the Land Registry itself arrange for it? Has the householder to produce it?
Would the Deputy not agree that maps are for the purpose of registration of title?
Yes, but I know of no title registered in the Land Registry which is not related to a map because the whole Land Registry system is on the basis of a person being the registered owner of a certain folio and he gets a number on his folio and that folio is related to a map. The easiest way to look at it is to look at an application for first registration. The Land Registry under the present system cannot consider the application until such time as they have a map. Nowadays they insist on having an original ordnance survey map showing the boundaries of the property, the cost of which has increased by 100 per cent in the last month. One can get an ordnance survey map from the Ordnance Survey Office at the new price of £4 but it has to be marked by an engineer, and the marking can cost £25 to get it properly surveyed and measured, and that portion of the survey map is then submitted to the Land Registry.
I pose the question: does the Minister intend that the Land Registry will deal with this system on the basis that there will not be a map registered there? If it is not the intention to depart from the existing situation who is going to pay the approximately £30 involved in producing the ordnance survey map plus the marking by the engineer? That is a basic practical point, and perhaps the Minister might deal with that first. I raise that practical point on the question of other fees and other costs. I do not want to go back into the confusion that was there between fees paid to the Land Registry and costs. I would point out that this is an expense and I want to know who will bear it.
There are other aspects. Normally, the Land Registry would seek documents provided by way of sworn affidavit. It is a question of drawing these up and fees being paid to Commissioners for Oaths. I am sure I could think of others. I would be interested in relation to the owner occupier in knowing what the Minister proposes in relation to the map problem I have raised and, in relation to non-owner occupiers, what other scale of fees he has in mind in respect of people purchasing.
The Chair would like to clarify the position. Amendment No. 40 has been moved. We are discussing amendments Nos. 40a and 41 with amendment No. 40, as they are related.
Amendment No. 40a is one which the Minister quite properly has put down in response, as it were, to amendment No. 41, which dealt with a point that was worrying us in relation to the cost of an arbitration. It seems to clarify the position, that the householder is not liable to pay the landlord's cost of an arbitration. If that is the situation, the amendment would be acceptable.
The amendment is not before the House yet. We are discussing it with the others. We want to try to dispose of amendment No. 40 at the moment but we are discussing the three together.
Can we speak on amendment No. 40a?
The three amendments may be discussed together but there is only one amendment moved at the moment. We will have the other two moved afterwards.
As Deputy O'Keeffe has said, this is purely a drafting amendment. The subsection is intended to regulate the provisions of the 1967 Act in relation to costs of arbitration and in effect to ensure that these provisions would not apply where the alternative provisions of section 23 of the Bill applied. It does this by saying that the 1967 Act provision would have effect, subject to the section. This wording may have led to some confusion and it would be better to frame the provision in a more direct way. The redraft does this, providing that the 1967 Act cost provisions will not apply to cases of owner-occupied dwellings, that is, cases which would attract the £5 and £12 fees.
With regard to amendments Nos. 40 and 41, subsection (2) enables the Minister to make a fee order fixing the fees to be taken, other than the £5 and £12 fees. This provision is necessary because the fees fixed in the Bill itself apply only in the case of owner-occupied dwellings. If the property consists of dwellings but the properties are for example, a company engaged in the business of giving occupational tenancies and are not themselves in occupation, the fixed fees will not apply. The State will not come to the tenant's financial assistance where he is in reality a landlord. However, he will have the right to acquire the fee simple and to use the procedure. Of course he may opt to use ordinary conveyancing procedures instead, but there could be cases in which the Part III procedures would offer considerable advantages to such a tenant. The fees to be charged in these cases will be fixed by way of a fees order and will as far as possible, because of the provisions of subsection (3), meet the costs of the service.
A new fees order would also be necessary to provide for fees to be charged for inspection of the register of vesting certificates which it is proposed should be kept. The 1967 Act register regulations provide for such fees to be charged in relation to the registers of arbitration awards. This is adequate for arbitration awards under the Bill, but a new order will be necessary to cater for the fees for inspecting registers of vesting certificates and for copies of entries. Again it must be emphasised that there is no question of the fixed fees of £5 and £12 being affected by the fees order. The provisions of section 23 have been drafted to make this absolutely clear, and subsection (1) excludes these fees from the scope of any fees order.
If subsection (6) were to be deleted Part III of the scheme would then be incomplete. In accordance with section 21 (3) of the Bill, the provisions of the 1967 Act apply specifically to an arbitration under Part III, and the proposals in Part III simply vary or supplement those provisions so far as necessary for the purposes of the new Part III scheme. What subsection (6) proposes as a clarifying provision is that section 9 of the 1967 Act, dealing with the purchaser's liability for vendor's costs including a vendor's arbitration cost, and section 19 of the same Act, dealing with arbitration costs themselves, will apply to a purchaser under Part III of the Bill save to the extent that Part III proposes otherwise. The liability of a purchaser under section 9 of the 1967 Act is effectively removed in the case of a Part III purchaser by removal of the requirement to serve notice under section 4 of that Act with which section 9 liability is linked. However, section 19 of the same Act is not affected by the proposals in Part III. Section 19 of the 1967 Act puts a party to an arbitration who behaves unreasonably at risk of being ordered to pay costs of the arbitration, including the costs of the other parties.
Section 23 (5) of the Bill deals specifically with the cost of arbitration in the case of owner-occupied dwellings. Its effect is to ensure that where the tenant has behaved reasonably he will be liable for only the £12 arbitration fee. Subsection (6), which imports the provisions of section 19 of the 1967 Act, is needed for cases outside this section, that is, where the dwelling is not owner-occupied. It has substantially the same effect as subsection (5) in that it puts a party who has been unreasonable at risk of the costs of arbitration.
With regard to the point raised by Deputy O'Keeffe in relation to the provision of maps and the making of them, if the arbitrator wants a map and has to have a map marked he will have to bear the cost of that himself; the applicant will not have to bear that cost.
Is amendment No. 40 withdrawn?
I take it that the Minister has measured his words carefully here.
That is right.
May I take it that the Land Registry will cover the cost of the Ordnance Survey sheet that has to be handed in and the cost of marking it?
The Deputy is probably talking about the registration of title, and I am advised that the question of maps with regard to the matter we are talking about does not arise. If the need does arise in the operation of this scheme, then the arbitrator will pay the cost of his own map.
May I take it, then, that it is proposed to depart from the normal Land Registry situation in connection with applications under this Act and that the Land Registry will not have a marked master map showing all the titles registered in the Land Registry, as they have for every title of register, and there are hundreds of thousands of them?
We are not registering the titles.
Confusion arises to some extent because the matter is being dealt with in the Land Registry. In effect the title which the householder will get will not be a registered title, is that the situation?
I assure the Deputy that there is no need for a map. The application is for a vesting certificate and the vesting certificate can be given without a map as described by the Deputy, which is necessary for Land Registry purposes for the registration of title.
Has the Minister given any thought to what will be on the vesting certificate? Normally one gets a land certificate from the Land Registry, and a folio number on that certificate refers to a map which is registered in the master map in the Land Registry. The boundaries of the property in question can be ascertained by obtaining a copy of that map. I understood, when the matter was being transferred, as it were, from the jurisdiction of the county registrar to the Land Registry, that the title which the householder would get would be a registered title which anybody having property registered in the Land Registry would be entitled to get, but to do so a map would be necessary. If a map is not necessary the tenant will not be getting a registered title but will be getting a vesting certificate which will give no indication of the boundaries of the property. I can see considerable practical difficulties if this is what the Minister has in mind.
The Minister has stated that there is going to be a register of vesting certificates kept. Am I correct in stating that?
Not under the Registration of Titles Act.
I appreciate that, but the register of vesting certificates will be kept. Has the Minister examined closely the mapping situation in the Land Registry? Very skilled people in the Land Registry are coming in under the Registration of Title Acts, and considerable difficulties are arising. Up to now it was possible to have one's title registered on a six-inch scale map. The Land Registry recently had reason to bring in a change in the regulations whereby one can get oneself registered now in the Land Registry only on a 25-inch scale Ordnance Survey map. The Land Registry found that it was not satisfactory to work on the six-inch scale map and they now have a 25-inch scale. Boundaries were completely incorrect on the six-inch scale. This meant that, for instance with big properties in Dublin, on the six-inch scale map great problems arose regarding boundary walls. There were problems also regarding people building on other people's properties. Let us take the matter a stage further. The 25-inch map must be marked, certified and signed either by a fully qualified engineer or architect if it is to be accepted by the Land Registry. It is important to point out those pitfalls.
The Chair is in an awkward position when the lawyers are battling but it seems to me that we are getting away from ground rents.
I was merely pointing out the difficulties that can arise, even with the best will in the world, in relation to the Land Registry. As a result of this Bill the register of vesting certificates will state that the persons concerned have fee simple, that they have obtained vesting certificates but what means will the Registrar of Titles have of ascertaining where are the boundaries of the properties concerned and of ensuring that the maps are kept in a proper manner? So far as I can see the situation will be that there will be no way of verifying whether vesting certificates are correct. The Minister may be trying to keep the process as reasonable as possible in terms of cost but it is important to ensure that the scheme works properly. What will happen is that if a tenant has not a proper map of his property there may be serious and grave difficulties later when his property is being sold. Therefore, it is important that there be proper maps identifying property of sale. The Registrar of Titles, being a man of experience in this area, will surely request that properly certified maps be produced. Otherwise he would be issuing vesting certificates that would be useless.
In regard to the vesting of a county council house the tenant receives first a vesting certificate which resembles closely the type of document we are speaking of here. But that vesting certificate has already been part of a scheme that was mapped out properly, the original key map having been placed in the Land Registry. The certificate that the tenant receives is only the forerunner to the land certificate. In regard to this legislation there are grave dangers involved. Let us take an area of many houses in this city. The tenants involved would not have proper maps of their property although they might have tenancies going back for many years. Such people would find on going to the Land Registry that their leases were not proper. There may have been subleases involved, for instance. If the registrar were to issue a vesting certificate in such circumstances the consequences could be serious.
(Cavan-Monaghan): There is a substantial point involved in respect of the cost that an applicant may be asked to bear. Paragraphs (a) and (b) of sub-section (1) of section 23, is clear. Paragraph (a) provides for the issuing of a vesting certificate under section 22 on payment of £5. There may or may not be arbitration but if there is paragraph (b) provides that the fee in arbitration shall be £12. Regarding paragraph (a), if I understand the matter correctly, a vesting certificate is the same as a deed of transfer signed by the vendor to the purchaser and is not a valid document of title until it is registered. There are only two places in which it could be registered, either in the Land Registry where it would be registered on a folio for anybody to see, or in the Registry of Deeds. However, from the language used here I do not think it is visualised that it would be registered in the Registry of Deeds and if it is not registered in either place it does not confer an absolute title on the applicant because if the man who owned the property were dishonest enough to sell it again to a bona fide purchaser for value without notice, the purchaser would take a good title unless the vesting certificate were registered. The Minister has said that the fees provided for in both paragraphs (a) and (b) are the fees only for the vesting certificate and for arbitration.
The Deputy is discussing the full section.
(Cavan-Monaghan): We must understand it.
I agree to an extent but the amendment is aimed at a specific provision. The section as a whole can be discussed later if necessary.
(Cavan-Monaghan): Yes, but I have to make that case before coming to subsections (2) and (3). Subsection (2) provides that the Minister, with the consent of the Minister for Finance, shall make a fee order providing for fees in respect of other parts of the Act with the exception of subsection (1) of section 23.
Subsection (3) of this section which is proposed to be deleted provides that these fees shall pay their way. It means that they will be as near as possible to being economic. It is obvious that there are other steps to be taken after the steps envisaged in paragraphs (a) and (b) of subsection (1) of section 23. If that is so, and I hope it is, they will be taken at full cost to the applicant.
It is necessary to go back in order to make the argument that must be made against subsection (2) and (3). We have to go back only as far as section 22. Section 22 (1) (a) provides that an application may be made to the Registrar of Titles under section 20 and that the registrar as arbitrator shall do certain things. Under subsection (2) before issuing a vesting certificate he shall do other things, and under subsection (3) the vesting certificate shall be deemed to be a conveyance on sale for the purposes of sections 24 and 25 of the Registration of Titles Act, 1964, and shall be deemed to be an instrument in the prescribed form for the purposes of section 51 of that Act. That, I admit, is a conveyance of one description or another. Subsection 22 (4) says
In a case to which subsection (3) relates, the Registrar shall, on being supplied with any further documents which he may require, provide for registration of the title under the Registration of Title Act, 1964
That is the kernel of the matter. The vesting certificate is the equivalent of a transfer. Subsection (4) provides that if he is required to do so and given the necessary documents, the registrar can register it and it will then be a valid document of title of which the world and his wife will be able to get notice in the Land Registry and by which he will be bound whether he avails of the opportunity to get notice or not. That brings us back to subsections (2) and (3) because he may not want to copy folios and he will have to pay for that. As Deputy O'Keeffe and Deputy Enright have argued, in many cases he will want a map because the registration of unidentified property in the Land Registry is worthless. The only way you can identify property which you want to register and put people on notice about is by providing a map. We will not talk about the delays in getting maps in the Land Registry because we could write a book about that and lawyers get blamed for all those delays.
One can come across a case where a property is part of a folio and one wants to apply for first registration. If it is part of a folio one will have to get a map and have it marked by an engineer. When I was practising law five years ago the normal fee for marking such a map was seven guineas. I understand that that has now rocketed to 25 or 30 guineas. Somebody will have to pay for the registration of that document. If land has never been registered and is held under a queer Act, such as the Church Temporalities Acts, and a man wants to register it for the first time, the Registrar of Titles will not talk to him unless he has a map. He can only get land registered if he says: "Here is the area of land in County Monaghan I want to register. I want you to map it and I want to put it there, so that everybody will be on notice of it." Section 22 (4) says that there is an obligation on the Registrar of Titles to do that only if he gets the documents he requires. The subsections we are seeking to delete in this amnedment say that a man can get those documents at his own expense. I would like to hear the Minister's views on that.
Firstly, tenants need not produce maps when making application for their vesting certificates; they need only produce title documents. There is no need for a map, marked or unmarked, for the application for a vesting certificate or for admission to the register of vesting certificates. That position existed under the 1967 Act and it is the position under this Bill. I want to refer briefly to what Deputy Enright said earlier when he advised that there was a definite likelihood of confusion. We have discussed this with the Law Society and the Land Registry and they do not share his views. Deputy Fitzpatrick said that the vesting certificate would not be a valid document of title——
——unless it is registered in the Land Registry or the Registry of Deeds. That is not so. Registration of title of a vesting certificate is not being made obligatory except in compulsory registration areas where it will be valid. A conveyance of unregistered land is perfectly valid without registration.
(Cavan-Monaghan): Provided the bona fide purchaser for value without notice does not come along later.
A conveyance of unregistered land is valid without registration. Registration in the Registry of Deeds does not guarantee title. It merely determines the priority in chronological order of any deeds registered there. It is desirable that the tenant should register his vesting certificate in the Registry of Deeds, and steps will be taken to advise him accordingly.
Who will pay the costs?
The tenant who wants to buy out his ground rent does not have to produce any map for the arbitrator.
I am afraid we are covering the same ground over and over again.
I have learned something in the last half hour. I assumed that when the matter was being dealt with in the Land Registry the title the householder would get would be an absolute registered title guaranteed by the State. I now find that it is proposed to give the householder not such an absolute title. In some ways it could be called a cheap title, because from what I can gather from the Minister, the householder will get what amounts to an unregistered conveyance.
Everybody involved with the transfer of property knows that an unregistered conveyance is totally unacceptable if a person wants to dispose of his property. There is also the question of the priority of interests, the protection of that title. I am appalled to find that this is the situation, that in effect what the householder is getting for the fees mentioned in this section is not an absolute registered title. I would ask the Minister to reconsider seriously what we are giving the householders under such a Bill. I thought that at the very least he was getting an absolute registered title. He is not. It was in that context that I raised the cost of the mapping. I am seriously disturbed by the Minister's explanations. I feel he should, and I urge him to rethink his position here to ensure that the title the householder will get will be an absolute registered title. If this does not happen the document he gets will not be of any use in the event of a sale unless further steps are taken to register it in the Land Registry or in the Registry of Deeds.
I assumed that the householder would get an absolute registered title and that on selling his house, he would be able to take advantage of the reduced costs applicable in having a registered absolute title. We have now a situation that not alone does he not have an absolute registered title but on selling his property his costs will be much greater because the purchaser will have to plough through deeds as opposed to merely taking a registered title. I am taken by surprise with what the Minister is proposing. I would urge him to revise his thinking on this aspect to ensure that the title the householder gets from the Land Registry for the fee stated here is an absolute registered title. In the past I urged that people should take advantage of this measure, but I am afraid they will not get such a great bargain after all. The householder will get something that is not a saleable title.
My clear understanding was that the householder was getting an absolute registered title and I note that Deputy O'Keeffe with his expertise in this area was of a similar opinion. The many tenants waiting to purchase their ground rents were certain that this was what they were getting, and they will be very disappointed when they find out the facts. In their interests I would ask the Minister to reconsider the matter. The Minister has said that the tenants will be advised in their interests to register, but this is a very poor substitute for what they thought they were getting. The fees set out in subsection (1) (a) and (b) are meaningless if there will be additional expenses on the tenants. The debate on this matter has been worthwhile because it has revealed the true situation. The Minister may say it was set out in black and white all the time, but it was our understanding that the tenants were getting a registered title. They will be very disappointed.
There are several points that need to be raised. If it is not compulsory to have the vesting certificates registered in the Land Registry or in the Registry of Deeds, it means that the person who buys the property later will have the additional cost of making further searches. I presume there will be a register of vesting certificates. When a person is buying a dwelling house a number of searches are made. There is a search made in the bankruptcy office to see if the vendor was ever declared a bankrupt. There is also a search made in the office of the county registrar to see if there are any orders with the sheriff against the person, and there are also judgment searches. In addition, a further search must now be made in the register of vesting certificates, and this will impose an additional burden on all those who have not absolute title. It will affect not only people involved with ground rents but also those who have not the fee simple or absolute title.
It is incumbent on the Minister to ensure that when a person obtains a vesting certificate he should be obliged to register with an absolute title.
Is the Deputy talking about compulsory registration for everyone?
If a vesting certificate is being issued or if it goes through arbitration the matter should be seen through to its logical conclusion. We should ensure that the person concerned gets a fee simple interest with all the relevant maps and title documents.
It appears to me that we are covering a very wide field that does not come under the amendments before the House. We are going into the whole area of sales, titles and registration.
I shall be guided by the Chair. The amendments we are discussing——
I will not be able to guide the Deputy on legal matters but I think we are getting away from the amendments.
We are dealing with Land Registry fees. A person obtains a vesting certificate from the registrar of titles without maps or documents, and that is not satisfactory. We are all concerned with keeping down the costs to the parties concerned, but if the people concerned do not get title documents with maps identifying the property involved this will not be of benefit to them. It is incumbent on us to ensure that the person concerned obtains full and absolute title. To have absolute title one must have the property properly registered either in the Land Registry or in the Registry of Deeds. If it is registered in the Register of Deeds the person must have a map on his conveyance. If it is registered in the Land Registry the person must obtain an absolute title. You can have a possessory title or an absolute title, but in this instance if a person has a lease on a Land Registry title, he obtains a vesting certificate on which there is no map of the property. It is a highly unsatisfactory situation which will need to be looked at seriously before Report Stage.
(Cavan-Monaghan): We are dealing with the buying out of ground rents, the purchase of small pieces of land, usually subject to small ground rents, with valuable buildings on that bit of land of which £20,000 might be a common valuation. We are leading those lessees to believe that they will get this done usually for £5 and that if they get into trouble and go to arbitration it can be done for £17. What we are giving them for that is an unregistered conveyance. Even if the title has been found by the Registrar of Titles, that householder will get a vesting certificate that is not a protection to him unless he registers it. It will not protect him, to use technical language, from a bona fide purchaser for value without consideration, and he will be put to the cost of registering that at a price economical to the Registrar of Titles.
I became perturbed at the superficial approach to this question of arbitration which emerged from the Minister's last reply. I do not blame the Minister because he is not a lawyer and he is dealing with technical terms. It is a dwelling that is being bought out, in effect, and there is a definition of dwelling in Part II: "A dwelling is a dwelling on land where the land is ancillary to the dwelling". The Minister told me a map would not be necessary even in arbitration. If there is to be arbitration on the purchase of a group rent it means that there has been a dispute, very often as to whether the entire garden goes with the house, or how much land there is with the house, if the original title is not clear. I should like the Minister to tell me, if there is a dispute about the area of land held with the house, how any arbitrator could make a meaningful award without a map defining the land which goes with the house. I am speaking about a situation in which there is a dispute between the vendor and the purchaser of the land.
I have been taken by surprise. I understood that the householder would get an absolute freehold title. It now appears that the householder will not get such a title, that it is up to the householder himself to register or not, as he pleases.
There will be no compulsory registration.
This brings us to a serious and important point. This Bill provides that the vesting certificate in the conveyance is deemed to be a conveyance within the provisions of sections 24 and 25 of the Registration of Title Act, 1964 and to be an instrument in the prescribed form for the purpose of that Act. We discover the type of title the householder is to get when we investigate what the vesting certificate is deemed to be.
The relevant section of the 1964 Act states that in any case in which registration becomes compulsory a person shall not under any conveyance on sale acquire the estate or interest purported to be conveyed unless within six months after such conveyance he is registered as owner of such freehold land. The effect of that is that the vesting certificate the Minister is offering is worthless without registration. Section 51 of the 1964 Act provides that there shall be executed on the transfer an instrument in the prescribed form, but until the transferee is registered as owner of the land transferred, that instrument shall not operate to transfer the land. I am coming to the conclusion that what the householder is getting under this Bill, if I interpret the Minister properly, is virtually a useless title.
(Cavan-Monaghan): He pays his money and takes his chance.
He gets a cheap title which does not operate to convey the freehold interest to him unless he registers it. I have been misled up to now and I am quite sure every householder in the country has been misled. I thought the householder was to get a registered absolute title. According to the Minister, what he is getting is a worthless piece of paper unless the document has been registered.
Deputy O'Keeffe is inclined to run away with himself. He has now discovered something for the first time. That is his privilege, but if any person had read the Bill properly he would have seen its purpose. I should like to tell him and his colleagues in Fine Gael and Labour to go back to the Second Stage debate on the Bill which he and his colleagues have gone to great trouble to remind me of and about which they said there is no difference whatsoever from this Bill. If they had looked at section 73 (4) of the lapsed Bill they would clearly understand why I say there is a certain amount of political blood rushing to their political heads. The indignation now being expressed I am taking with a grain of salt. If those Deputies have not got copies of the lapsed Bill I will be glad to let them have it and they will find what I am talking about in black and white in section 73 (4). It was brought in by the Deputies opposite when they were in Government. What is the purpose of the Bill before us now? It is to allow tenants to buy out their ground rents for a total legal cost of £5. If this Bill were not there it could happen that what they are now getting for £5 would cost them up to £200 in legal fees.
That is rubbish.
It is not rubbish and the Deputy knows it is not.
The Minister is going off the point.
I am not. I am more on the point than perhaps the Deputy and some of his colleagues were for the last half hour. That is the purpose of my Bill. I never said at any stage that there would be compulsory registration of title. I said that the purpose of the Bill was to bring about a situation leading to the abolition of ground rents and that is what I am doing. I do not accept what Deputy Enright says about there being compulsory registration. I do not go along with the compulsory aspect of it but I would welcome people going along and doing it. If people want to register their titles afterwards they are quite welcome to do so. I will do everything I can to encourage them to do that but I will not compel them to do it.
I believe that in getting the vesting certificates prepared a certain amount of the work of registration of title will be undertaken. There is room for help and at a later stage I hope to financially help people to register their titles. I would like to point out to the Deputy that what is in this Bill should come as no surprise to him, particularly as it was in the previous Bill, and also that the purpose of my Bill is to provide a scheme leading to the abolition of ground rents and people can for £5 buy their vesting certificates. I do not want to keep repeating myself but it would be desirable that they would go the final step but that was never promised by me. I am prepared to provide measures to help people, to encourage them and not compel them to go the full way.
This is an important point.
I ask the Deputy to let the Chair put amendment No. 40 which has been discussed for over an hour. We are going back over and over again on the same argument. We are really having a Second Stage debate now. The amendment only proposes to do one specific thing.
We are on costs and these amendments propose that the additional costs, which are to be provided under the Bill, are deleted. We are actually on the amendment. This is a most important point. The Minister referred to section 73 (4) of the Coalition Bill. I refer him to subsection (5) which states:
In a case to which subsection (4) relates the arbitrator shall send the vesting certificate and other necessary documents to the registering authority under the Registration of Title Act, 1964, for the purposes of compliance with the provisions of that Act.
That provision was actually in the National Coalition Bill.
That is in the compulsory area.
The Minister will come back and say there is somewhat similar provision in this Bill. I accept that. The registrar shall, on being supplied with any further documents which he may require provide for the registration of title under the Registration of Title Act, 1964. We are getting to the point that in the areas of compulsory registration the householder will have to produce further documents, including a map.
But not for the vesting certificate.
The vesting certificate is a worthless document unless it is registered. I am not making any political point about it. It is worthless in the context of stopping the operation. It is of value if it is registered. In the case of parts of the country where compulsory registration applies unless the document is registered within six months, it has no effect at all. The tenant in those areas thought he was going to get a proper title for his £5. Where he got the consent of all the superior interests and was able to take advantage of section 20, he assumed he would get a proper title, but it is now quite clear he will not because the vesting certificate is worthless unless he registers it in the Land Registry and there will be considerable expense involved in doing this. In other areas it is of considerably reduced value unless he registers it in the Registry of Deeds.
I will be coming back to this point on Report Stage because I find it is very alarming. I was misled on this. I am not saying I was misled by the Minister. When I saw this matter was being dealt with in the Land Registry I assumed that the householder would get a Land Registry absolute title. It is now clear that this is not so. I am quite certain that virtually every ground rent householder in the country has been misled by this particular provision. We will be coming back to this on Report Stage.
The Fianna Fáil manifesto stated in relation to this:
Fianna Fáil will provide a scheme which will lead to the abolition of existing residential ground rents.
The Minister is only touching the tip of the iceberg in what he is doing in this Bill. He has not followed it through to lead to where a person has his title registered and has his fee simple document of title.
I will encourage people to go the remaining stages but I will not compel them.
We are only having repetition, one point after another repeated, on both sides of the House.
I do not like saying that this is as near to Shanahan's stamps as I have ever seen.
Will Deputy Enright let me put the amendment?
Can I refer the Deputy to the Bill which lapsed?
This is providing a scheme but it is leading people up a blind alley and it is not satisfactory.
Deputy Enright is not on any of the amendments before the House. There are three amendments which we have discussed for the last hour. It is time for the Chair to put the amendment.
I am keeping within the amendments. We are speaking of section 23, subsections (2) and (3). We are talking about the fees which will be fixed in the Land Registry by order of the Minister for Justice with the consent of the Minister for Finance. We are following this through. It specifies section 24 and 25, which deal with compulsory registration. Subsection (3) of section 22 states:
(3) The vesting certificate shall be deemed to be a conveyance on sale for the purposes of sections 24 and 25 of the Registration of Title Act, 1964.
That 1964 Act states that it must be registered within six months or else it lapses. If it lapses after six months where will a person find himself after paying over the money? That is the crunch question. It is not satisfactory and it is not leading to a person getting a fee simple. That section must be looked into and amended.
I must put the amendment. We have been dealing with the same points for the last hour and we have had repetition of one point after another.
Unless the Minister follows this through the people who must pay £17 will not get value for their money. The certificate must be registered in the Land Registry. The Minister spoke of compulsory registration for the tenant. However, it is not compulsory registration for the tenant, it is necessary registration. It is necessary that one registers in the Land Registry or the Registry of Deeds to become the full registered owner with an absolute fee simple title. That is not being done. That is why I say it appears to be a fraud on the people who must pay over their money. The situation is unsatisfactory and will lead to a lot of trouble.
The Minister would be wise to avoid trouble with organisations who have been pressing for legislation in connection with the abolition of ground rents. Unless he alters this Bill the scheme will be worthless and will only add to the existing difficulties. I want to ensure that when a person pays over money he or she obtains a vesting certificate which is followed through in the Land Registry so that the person becomes the full registered owner. If that does not happen those people will be getting an unsatisfactory title. The Minister should insert a section whereby necessary registration occurs.
The Deputy will have to deal with the amendments. It is my belief that he has not been referring to any of the amendments for the last 20 minutes. We are not making any progress. We are having a repeat of the arguments that were made earlier.
Subsection (2) of section 23 states:
(2) The Minister, with the consent of the Minister for Finance, may by order fix the fees to be taken in the Land Registry for the purposes of this Part, other than the fees mentioned in subsection (1), and may revoke or amend any such order.
In that subsection the Minister is leaving himself an exit. I do not think the Minister had in mind that after people had paid £17 and registered they should be involved in further expense The subsection is not satisfactory and must be changed to allow persons to obtain the necessary registration they are entitled to.
Deputy T.J. Fitzpatrick (Cavan-Monaghan) rose.
Does the Deputy agree that following his comments I must put the amendment to the House because we have had so much repetition?
(Cavan-Monaghan): If I was satisfied that the Minister understood the effect of leaving subsections (2) and (3) stand I would be satisfied, but I am not sure he does. I believe he realises that he has been beaten on the legal argument, on which he could not be expected to be an expert. However he has now changed the whip and wants to come out with the political argument, on which he is an expert. Since Senator Cooney introduced a similar Bill in this House we had the denunciation by the Minister's party of that Bill. We had the historic document which Deputy Leyden refers to as the manifesto and this Bill with its explanatory memorandum. The Minister is now arguing that he never intended giving a fee simple to the applicants but the first three paragraphs of the memorandum state that the applicant is to get the fee simple for £5 or £12.
Any law student knows that the fee simple is full and absolute ownership. The Minister cannot be expected to be technically knowledgeable, but he has revealed several times that this Bill does not enforce compulsory registration. He is misleading the uninitiated in this House by that statement because compulsory registration only applies to unregistered land in scheduled counties, County Kildare being one. If the land in those scheduled counties is registered, then in order to convey a fee simple ownership it must be registered in the Land Registry. But if it is unregistered land, of which the Minister appears to be making some virtue, it must be registered in the Registry of Deeds.
Is the Minister conceding that for the £5 registration fee the applicant anxious to purchase his ground rent will get a vesting certificate which is the equivalent of a transfer or conveyance? Indeed, if it is registered land, Deputy O'Keeffe through research has discovered, the certificate is valueless and it will be null and void and not worth the paper it is written on after six months if it is not registered in the Land Registry. That is spelled out in the sections of the 1964 Act referred to in this Bill. It will be void, become defunct, extinct, no use and the poor man will have to start all over again. He is being misled. He is being tricked. He certainly is being misled because if the innocent person I was talking about, let us say, comes up from County Limerick and finds his way into the Land Registry, gets his business done and is given a vesting certificate, he will be forgiven if he goes home and puts that in the bank and gets a safe custody receipt for it and thinks that they are his deeds. If he does that without a solicitor—and he is being encouraged not do go to a solicitor—after six months that certificate will have spent itself, it will be no use. He will have given his money and the ground landlord will still own the thing. If it is land that is to be registered in the Registry of Deeds in Henrietta Street, unless he finds his way up there, gets a memorial on some sort of special paper and goes through the whole rigmarole and registers it there, he will not be protected. He will want a map in either case.
If the Minister is conceding that all he is doing here—and this is it—if he admits here that all he is really doing is fixing the price of the ground rent and if there is a dispute about it he will arbitrate on that but that in order to perfect his title and put himself in an unassailable position against bonafide purchasers for value without notice the person concerned will have to spend an unspecified sum to get it done, then we would know where we stood and the people who accept this ingredient of an historic document will know where they stand and will be able to judge the Minister and act accordingly.
Not having the doubtful benefit of being a legal man, I have listened to the professional men here. We were led to believe by the Minister that under a previous Bill there was no fixed fee for purchase of ground rent and that in this Bill there was a fee of £5 and in the case of a search an extra £12. We understood and every layman understood and possibly the Minister who is a layman, not a legal man, understood, that a person could buy out his ground rent by paying a £5 fee. Is it admitted now that if I buy out the ground rent and pay the £5 legal fee I can discover after six months, that unless I register, this document is completely worthless and that there is no fixed legal fee for what it will cost me to register it? Is that the position?
(Cavan-Monaghan): There is the plain man talking.
Is that the position? Then there is no fixed fee for the purchase of a ground rent?
(Cavan-Monaghan): And there is no answer.
I have explained the position time and again.
A bad bargain and a bum title.
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