Skip to main content
Normal View

Dáil Éireann debate -
Wednesday, 26 Apr 1978

Vol. 305 No. 10

Landlord and Tenant (Ground Rents) (No. 2) Bill, 1977: Committee Stage (Resumed).

Question again proposed: "That section 20 stand part of the Bill."

I want to bring one major point to the attention of the Minister. It concerns the necessity for a person applying to the Land Registry to do so with the consent of every person who is a necessary party to the conveyance. A person cannot take advantage of this section unless he is able to do so with the consent of every necessary party. This may be a most difficult procedure for a householder wishing to take advantage of this provision and get title on a very simple inexpensive basis because the question immediately arises as to who is a necessary party. It does not merely mean giving notice and getting the consent of the person to whom he pays his rent. It involves the consent of every superior interest plus the consent of the mortgagee of every such superior interest. The alternative procedure is arbitration under section 21 where it is provided that the registrar shall determine the application by arbitration. The householder wishing to avail of this provision will have to get the consent of all superior interests and he will have to bear the cost of such consent. Furthermore he has to bear the cost of locating such people for the purpose of, first of all, contacting them and, secondly, of obtaining their consent. This was the difficulty under the 1967 Bill. Apart from the arbitration section, which I will come to later, this difficulty has not been removed in so far as the householder is concerned.

If the Minister accepts that this is the situation—and I think he must—will there be any assistance given to the householder in dealing with this problem? As the Bill stands, the householder cannot even go to the registrar until such time as he has served all the notices on all these people and has obtained their consent. I will qualify that by saying that he cannot first go to the registrar for arbitration but he can go to the registrar under section 20 for a simple transfer at the fee mentioned in the Bill. It is my experience that in the majority of cases he will have difficulty in locating the various people and in obtaining their consent. I appreciate what the Minister has in mind but I am worried that the householder, owing to his lack of information and technical knowledge as to how to investigate this type of situation, will not be able to take advantage of this Bill other than by arbitration because of the need to have the consent of all the parties before going to the registrar to get the freehold.

The Minister should consider some procedure whereby the registrar will in advance of or in default of the obtaining of such consent be there to advise the householder of the best procedures and how to serve the various notices. Better again, if we are putting the onus on the registrar, why not have the registrar serve the notices as he does the technical work involved? That is the suggestion I am putting to the Minister in the light of the practical difficulty of any householder who is not holding under an immediate landlord who has the freehold and who is agreeable and co-operates with the householder.

The Deputy is now moving into section 21.

I mentioned section 21 merely in the context that this is the only alternative open to him if he is not able to avail of section 20. I am making a suggestion to the Minister as to how section 20 could be tightened up to make it more effective so that householders would be able to take advantage of section 20. The simple procedure under the Bill is embodied in section 20. If he is not able to take advantage of section 20 he has to go to arbitration under section 21, and that is the only reason I mentioned section 21.

I am looking for an assurance from the Minister that the registrar will assist the householder in trying to purchase under section 20 of the Bill and that he might consider a procedure whereby the registrar would issue the necessary notices to the various superior interests—the mortagees, the superior landlord and so on—on behalf of the householder. Otherwise there is a great danger that few householders will be able to take advantage of section 20 and they will therefore be forced into section 21.

We had a very long debate on amendment No. 12 and the consequential amendments. If that amendment had been tabled the new purchase scheme in part 3 of the Bill would have been operated by county registrars rather than by the Registrar of Title or his authorised officers.

One of the arguments that was repeated by Deputy T.J. Fitzpatrick (Cavan-Monaghan) was that the land registry cannot cope with their present workload and would be unable to cope with the extra work. During the course of the debate I dealt with this argument and pointed out that additional staff are being recruited to do the work arising on this Bill and that separate accommodation is being arranged for them. I assure Deputy O'Keeffe that I have now checked on the arrears position in the registry and there has been an encouraging improvement in the position over the last few months, particularly in regard to first registrations or examiners' cases, which constitute the work area most closely related to the proposed ground rents work. This trend is expected to continue. As a result, arrears should be down to managable proportions by the end of the year. Indeed, the average delay should be down to an all-time low of between two to three months.

That is not my experience.

I could not be responsible for the Deputy's experience over the last four or five years. In fairness, the Deputy will have to admit that, because of the extra people being taken on and in view of present trends, delays will be reduced by the end of the year.

Another argument advanced was that to assign the arbitration function to the Registrar of Titles would be of doubtful constitutionality as the Registrar of Titles, unlike the county registrar, is not a judicial officer. My advice on this important point is that the Constitution is not being contravened in any way.

The third argument advanced by Deputies T.J. Fitzpatrick (Cavan-Monaghan) and O'Keeffe was that centralising arbitration in Dublin would involve persons from outside Dublin in unnecessary and comparatively large expenses for travel to Dublin and for meals; that if the new Act were to be operated without the employment of a solicitor, it should be operated on a person-to-person basis. During the course of the debate on the amendment I answered this point by saying that it would not be necessary for anyone to travel to the Land Registry in Dublin, that the business can be transacted by post. Indeed, if necessary, other measures could be taken to provide for arbitration at centres in Limerick, Cork and Sligo.

With regard to Deputy O'Keeffe's comments on section 20, this section does require the consent of every interest involved but this will not be a problem. Where the tenant has problems he will have to use section 21. It is for this reason that recourse to arbitration will be inexpensive. If there are problems—and there will be problems as there are in every other Department—those who have them will be more than welcome to seek the help of the people who will be dealing with this work in the Land Registry as they seek help in other Departments. They ring them on the phone, or come in and talk to them, or write to them. I assure the House that we will do our very best to see to it that the application form will be most informative to people. If anybody has problems we will try to solve them. I am quite satisfied that, because of the way the scheme will operate, there will be no difficulty whatsoever for the very large number of people who will be using it.

The Minister has ranged over somewhat wider points than the points I was making.

I am afraid we are going back on the debate on the amendment and I want to avoid that.

I would be delighted with any improvement in the Land Registry. Over quite a number of years' experience, I have found the staff very co-operative. There are not enough staff. They are working in very poor accommodation. I would welcome any improvement in that area from the point of view of the facilities available to the staff and from the point of view of clearing the work load. On section 25 I will come back to the constitutionality aspect about which I have serious concern.

I should like to pick the Minister up on the question of dealing with the matter on a person-to-person basis. Under the 1967 Act the county registrar dealt with arbitrations. I cannot see the Registrar of Titles going all over the country dealing with thousands of arbitrations. However, we will come back to that as well.

The basic point I was making on section 20 is that there must be assistance for householders who want advice and help. I accept the Minister's undertaking that this will be forthcoming to householders applying under section 20.

Question put and agreed to.
SECTION 21.
Amendment No. 13 not moved.

Amendments Nos. 15 and 16 are related to amendment No. 14. Amendment No. 15 is an alternative to amendment No. 16. Amendments Nos. 14, 15 and 16 may be taken together.

I move amendment No. 14:

In page 11, subsection (1), line 35, after "lessor." to insert "Service of a notice may be effected in any manner provided for by section 63 of the Act of 1931 or section 23 of the Act of 1967."

This amendment is being moved to remove a doubt. The collective citation of the Bill together with the other Landlord and Tenant Acts would, in the normal way, result in the application to the notice provision in section 21 of the provisions relating to the service of notice in the 1931 and 1967 Acts. The notice in question is one which the tenant must serve on his immediate lessor when he applies for arbitration. The 1931 and 1967 Acts provisions cater for the situation where a landlord cannot be found by enabling the tenant to serve the notice by sending it by registered post to the person to whom the tenant pays the rent, at the place where he pays the rent, or to which he sends it.

However, a doubt has arisen as to whether the collective citation does in fact bring the 1931 Act provision in particular into operation for the purpose of a notice under section 21. The amendment removes that doubt. In any event, it will be helpful to draw attention specifically to the notice provision in the Bill itself.

Opposition amendment No. 8a was withdrawn and amendments Nos. 15 and 16 seemed to be aimed at resolving the difficulties arising where the landlord cannot be found. Amendments Nos. 15 and 16 are regarded as defective and therefore they are not acceptable. They propose that, as an alternative to serving the notice on the landlord, the tenant may serve it on the landlord's agent and, where neither of them is known, and in the case of Deputy Desmond's amendment where the rent has not been demanded for a period of some years, the Registrar of Titles may be advised accordingly.

Finding the landlord's agent could, in turn, give rise to difficulties and uncertainties. Service to the place where the rent has been paid as provided in the official amendment is far more certain. The expression "a period of some years" is too vague and the expression "the Registrar of Titles may be advised accordingly" raises the question of what the registrar is supposed to do on receipt of this advice.

I accept that, in response to our amendments, the Minister has made a gallant effort to close this gap. We are at one on this. We want to ensure that there is an accepted procedure for service of notice by the householder. I am still concerned about one point. I accept that the Minister by incorporating the provisions from the 1931 and 1967 Acts covers virtually all angles except one, which could be a serious one, where the rent has not been collected for many years and where nobody is available on whom notice can be served.

It may seem at first sight not to have a lot of substance, but I can assure the Minister, from my personal experience, particularly where ground rents are of a very minor nature, that there are old landlords who have disappeared from the scene and agents who are not available. In those circumstances, what concerns me is: on whom does the householder serve notice? It is very easy to say he can serve notice on the person to whom the rent was last paid. Rent might not have been paid for 50, 60 or 70 years. In some circumstances, the rent may be of a nominal nature, perhaps £1, or something of that order.

The Minister must be aware that, in many cases, persons who collected rents before troid na saoirse were not from Ireland and had very little connection with Ireland. Many of them may not have bothered with the collection of rents since the twenties and are not available. We go back to the basic point which, perhaps, was highlighted some years ago when Lord Lucan disappeared. I do not know whether he had an agent in the area, but say he had not, and say he collected his rents himself. He has now disappeared. On whom would his householders serve notice?

There must be some procedure—and it is lacking in the Bill as it stands— whereby, in those circumstances, the householder can set the wheels in motion and go direct to the registrar without the necessity to serve notice. Possibly the best such procedure would be some amendment under which if he could prove to the registrar that he had made efforts to find his immediate landlord, or his agent, or the person to whom the rent was last paid, the registrar could get the wheels in motion. I do not know whether the Minister has an answer to that point and, if he has not, I would ask him to look at it and try to close that loophole and clear up that problem.

We discussed this matter earlier on amendment No. 8a, I think. I accepted that there is a lot of good in what has been suggested here in the House in an effort to straighten it out. I am advised that when a receipt of a registered letter is available this will suffice. This is a problem which, the Deputy as a practising lawyer knows better than I, has been in existence from am troid na saoirse and it certainly was there before the 1931 Act. There is a provision in the 1967 Act which I do not want to read because it is quite long, but if all fails with regard to finding a person or sending out the registered letter, that provision will help.

What does it do?

I will read section 8 (2) and (3) of the 1967 Act:

(2) Where a person who is required by this Act to convey or join in conveying the fee simple in land is an infant or a person of unsound mind, or cannot be found——

I think this is basically what the Deputy means——

or refuses or fails to execute such conveyance, the county registrar for the area in which the land is situate may, on the application of any person concerned, appoint an officer of the Court to execute such conveyance for and in the name of the person so required and thereupon the execution of such conveyance by such officer for and in the name of such person shall for all purposes be as effectual as the execution thereof by such person.

(3) Where any person who is required by this Act to convey or join in conveying the fee simple in land is unknown or unascertained, the county registrar for the area in which the land is situate may, on the application of the person entitled under this Act to acquire the fee simple, appoint any person who is receiving the rent in respect of the interest in the land of the person so entitled, or such other person as the county registrar may think fit to appoint, to represent such unknown or unascertained person in all proceedings in connection with the conveyance of the fee simple in the land, and may, at the same time or subsequently, appoint an officer of the Court to execute such conveyance for and on behalf of the person so required and unknown or unascertained and thereupon the execution of such conveyance by such officer for and on behalf of such person shall for all purposes be as effectual as the execution thereof by such unknown or unascertained person.

The Deputy will accept that there is provision in that Act to help out in the type of case he mentioned. Having further regard to what he said, I am prepared to have another close examination of it to see that there is no difference between us on what we hope to achieve here. There is no reason why there should be, and I want the Deputy to believe that I have gone as far as I can go, but I am prepared to tighten it up as far as possible.

I accept what the Minister has to say. I would, however, point out to him that section 8 of the 1967 Act does not cover this point. It is a provision which is effective in connection with the execution of the final document of transfer. It does not cover the question of the service of notice. If a tenant wants to take advantage of this Bill he has to apply to the registrar under section 20 with the consent of the landlord and all superior interests, or he must apply for arbitration under section 21 where it is stated:

.... and he shall serve notice of his application upon the immediate lessor.

Therefore the problem still remains as to the service of notice under section 21, even if he cannot get the consent to proceed under section 20, which he could not if the person were unavailable. There is a lacuna here.

The Deputy will admit that the person has his rights under the 1967 Act.

We pushed the person back under the cumbersome procedure of the 1967 Acts which involves serving notice and getting the consent of all the immediate lessors. If he is pushed back on to that Act the person in this type of difficulty, where the landlord is missing, has not been able to take advantage of the 1967 Act. That is one of the reasons we are agreed that we should get a better procedure such as we are now trying to work out under this Bill.

I am prepared to have another look at it, but we know we are dealing with impossible cases.

There are a fair number of them.

Amendment agreed to.
Amendments Nos. 15, 16, 16a and 17 not moved.

Was amendment No. 16a not moved?

It fell with amendment No. 8a which was withdrawn.

Amendments Nos. 18 and 19 not moved.

I move amendment No. 20:

In page 11, subsection (4), line 45, after "taken" to add ": provided such an appeal is lodged within 28 days of registration of order or decision of the Registrar of Titles".

Under the subsection as it still stands there is no time limit for an appeal. A householder who obtains an order from the registrar under section 21 could find himself possibly three, six or 12 months later with an appeal lodged against this order. There should be some time limit here. Maybe the Minister from a technical point of view feels that is unnecessary, but I suggest it from the point of view of tightening up the provisions of the Bill.

I believe that the amendment is not necessary. In the ordinary way it falls to the Circuit Court Rules to determine the time in which appeals to the Circuit Court must be taken. At present under the 1967 Act appeals from a county registrar's decision must be brought within 10 days pursuant to order 15 rule 7 of the Circuit Court Rules of 1950. This rule will not be adequate to provide for appeals against awards by the Registrar of Titles, and in the ordinary way the Circuit Court Rules Committee will be requested to draw up suitable rules. It is proposed that the time for appeal will be 10 days but the rules of the rules committee naturally will be taken on this issue.

Amendment, by leave, withdrawn.
Question proposed: "That section 21, as amended, stand part of the Bill."

We have untangled the matter fairly well. I have referred to the question of notice which is under subsection (1). There is one further point that I wish to draw to the Minister's attention. Subsection (4) refers to an appeal to the courts under section 22 of the Act of 1967. By inference all the provisions of the Act of 1967 will apply to this part. I assume that it is on that basis that there is no reference to an appeal to the court under section 21. The Minister presumably can take advice on it. Will it be necessary to say specifically that an appeal to the court under section 22 of the 1967 Act or under section 21 of this Bill can go to the Circuit Court? It is really a matter of draftsmanship. Because of the way the section is drafted I do not know whether it could be construed that there is not an appeal.

Would the Deputy read the subsection? He is proposing that the Registrar of Titles acting as arbitrator shall be in the same position as the county registrar acting as arbitrator under the provisions of the 1967 Ground Rents Act, that is if those provisions apply.

I referred to that, and it is a point which I anticipated the Minister would respond with. There is a specific reference to an appeal under section 22 of the 1967 Act. We have no specific reference to an appeal under section 21 of this Bill. I accept it as a general proviso applying the provisions of the 1967 Act to this part. I am not making any great point about it, but I wonder whether from the draftsmanship point of view there should be a specific reference.

Would the Deputy agree that under subsection (3) the provisions of the 1967 Ground Rents Act apply and therefore section 22 of the 1967 Act does apply?

This is the way it is being worked in.

Yes. Again there is no disagreement between us on it. I am prepared to have another look at it.

Question put and agreed to.
SECTION 22.
Amendments Nos. 21 and 22 not moved.

Amendment No. 23 is consequential on amendment No. 24, and therefore these amendments may be taken together.

I move amendment No. 23:

In page 12, subsection (1) (b), line 3, after "fee simple," to add "or".

The situation under section 22 is that the registrar can issue a vesting certificate either when an application is made to him, with the consent of section 20, or he completes an arbitration under section 21 if the consent is not forthcoming. In those circumstances, and the purchase money being paid, he can issue a vesting certificate to the householder. The important point here is that the Bill provides that the purchase money must be paid by way of a lump sum. Another point and one that I shall come to later is that all the arrears of rent must be paid.

Although this provision is a considerable improvement on the 1967 procedure I have always claimed that it cannot in any way be considered to be leading to the abolition of ground rents. I have searched as to how one might find a system that would lead to abolition and in the course of my efforts I have found that some other people had given thought to the problem previously and this is what gave rise to the amendment which proposes that where a householder gives notice of wishing to acquire a freehold and then delays the procedure for acquisition, the rent paid by him in the meantime be credited against the purchase. In effect this would give rise to a situation, taking a period of approximately eight years as being the multiplier that would be relevant in many cases, in which a householder could serve notice on his landlord and then delay taking further action for the next eight years. Thereafter he could apply to the registrar and would get his freehold title without any further payment. In effect the rent paid between the date of the serving of the original notice and the application for registration would be credited against the purchase.

I do not claim the inspiration for the suggestion in the amendment. Rather the credit must go to the Ministers for Justice and Health and Social Welfare who, when in opposition tabled an amendment of a similar nature—it was No. 79—to the Bill introduced by the Coalition. This appears to be the proposal the two Deputies had at the time for the provision of a procedure leading to the abolition of ground rents. Now that the matter has been drawn to the Minister's attention, I presume he will accept the amendment without demur.

It is somewhat early in the day for the Deputy to be as mischievous politically as he is endeavouring to be. He knows well— he would know this even from his short time in the House—that amendments are tabled for the purpose of discussion. A number of amendments have been tabled to this Bill both by Fine Gael and Labour. Some of these were withdrawn but they all provided the opportunity for discussion. Either the Deputy or one of his party is on record as having said that amendments provide very useful vehicles for discussion on Committee Stage of any Bill when matters are teased out as they should be teased out.

Regarding the amendment to which Deputy O'Keeffe refers, that was, the former amendment No. 79 to the other Bill which was tabled by Deputy Haughey and I, that Bill was not put through because of a lack of political will on the part of the Coalition. They did not bother presenting it for Committee Stage. The Deputy will know that the amendment we tabled was put down for the purpose of discussion. He knows, too, that the matter in question having been discussed, common sense and reasonableness must be maintained but if he pushes the amendment we will realise how far he is prepared to go with it. He must not forget that the purpose of the amendment is to enable a tenant who has served notice to continue to pay his ground rent for so long as it takes such payments to equal the amount of the purchase money, following which it would appear that he would be entitled to get his vesting certificate without making further payment to the landlord. The Deputy knows that this would be confiscatory. I would not hold the Deputy responsible on behalf of his party for pushing for a vote on the amendment, since the facts have been spelled out for him and since, presumably, those who approached him to ask that he table such an amendment will realise that the point has been discussed.

As I pointed out in replying to the Second Stage debate, a termination of the liability to pay rent at a future date without compensation is, in justice and in law, no different from a termination without compensation at a current date. The fact that the rent is paid in the interval is irrelevant because this is the landlord's legal right in any event. The Deputy knows well that it would be clearly unconstitutional to impose by statute a termination of the landlord's right to receive his rent either now or in the future without adequate compensation being paid. In adition the Deputy knows that if landlords and tenants consent there is nothing in the Bill to prevent them from arranging a scheme of payment of the purchase price by way of instalment.

I appreciate that the Deputy had the same motives in view as I had in relation to the amendment he referred to, that is, to have the matter brought forward for discussion in an effort to spell out again the obligations and responsibilities that this Parliament must have regarding the protection of people's rights and properties. I do not say to the Deputy, as he said to me, that he and his party are committed firmly to the amendment by reason of their having tabled it. It would be as wrong for me to say that as it was wrong for the Deputy to suggest that I and my colleague were as firmly committed when we put down our amendment.

I am a little surprised at the Minister's reaction to what I have to say on this amendment. It seems to amount to an admission that that amendment and other amendments put down by him and his party were for political purposes. In my research seeking to find the best way of getting a scheme leading to the abolition of ground rents—and this Bill clearly does not do that despite the many advantages and improvements in it which I accept—I found this amendment. I assumed it would not have been put down by the then Deputies G. Collins and Haughey without the constitutional and other aspects of it having been fully investigated.

Has the Deputy investigated the constitutional aspect.

Since this point was raised by the Minister I expect that his reaction would be to accept this amendment and nobody has taken the view that it should not be accepted. The Minister raised the question of constitutionality. Let us see how we can get over that problem.

I believe that if, in addition to the entitlement of the householder to go to the registrar, there was similarly an entitlement after service of notice on the part of the landlord to go to the registrar, this would cover the constitutional problem. I would not like the Minister to feel that a discussion on this amendment can merely be chopped up by raising the question of constitutionality.

Obviously my party would always wish to see the terms of the Constitution observed. I would not like to be political by saying we are a semi-constitutional party; we are totally a constitutional party.

If the Minister has worries about the Constitution in relation to this provision which could lead to the abolition of ground rents, could a provision not be put into the Bill giving the entitlement to the landlord at the service of notice of going to the registrar? This would mean that he would end up with his purchase money quicker. The practical situation would be that many landlords, and in particular many landlords who are abroad, would not bother exercising their rights to do so. This would permit many householders to take advantage of this provision and they would be able to buy their ground rents not exactly on an instalment plan but obtain credit for the rent paid after service of notice.

There is nobody objecting to the landlord and the tenant coming to an agreement between themselves.

I accept that. By agreement there is no problem.

I am not sure that what the Deputy is suggesting comes within the ambit of the amendment. If he is having qualms of his political conscience about my approach to this, I would suggest that there is plenty of material available to me which assures me that my predecessor's thinking in regard to my amendment was along the same lines as my thinking now in regard to the Deputy's amendment.

Obviously I cannot comment on what may have been in the mind of the Minister's predecessor because I am new to this House. I cannot and will not accept a reaction to an amendment which I put down in all seriousness that this is or could be unconstitutional. I would want to see more solid grounds put forward as to why it is unconstitutional. If I were convinced of that, I would look at the problem as being: how do we frame the Bill to make sure it is not unconstitutional. I do not want to see a confiscatory section in the Bill which would be unconstitutional because that would be no good to the householder. I have made a solid and constructive suggestion to the Minister as to how he could overcome the constitutional problem if he has the will to accept this as being a procedure which would lead to abolition.

To set the record straight, I cannot honestly see what the Deputy is trying to get at. I should think that any person reading this amendment should see it is confiscatory and therefore unconstitutional. If that is causing a problem for the Deputy, I am telling him clearly that it is confiscatory and therefore unconstitutional.

If the Minister accepted the principle of this amendment it could be changed by giving the landlord an entitlement to go to the registrar after receipt of notice to ensure that it was not confiscatory.

Amendment put.
The Committee divided: Tá, 43, Níl, 58.

  • Barry, Peter.
  • Begley, Michael.
  • Belton, Luke.
  • Boland, John.
  • Bruton, John.
  • Burke, Joan.
  • Clinton, Mark.
  • Cluskey, Frank.
  • Collins, Edward.
  • Corish, Brendan.
  • Cosgrave, Michael J.
  • Creed, Donal.
  • D'Arcy, Michael J.
  • Deasy, Martin A.
  • Desmond, Barry.
  • Desmond, Eileen.
  • Enright, Thomas W.
  • FitzGerald, Garret.
  • Fitzpatrick, Tom (Cavan-Monaghan).
  • Gilhawley, Eugene.
  • Harte, Patrick D.
  • Horgan, John.
  • Kavanagh, Liam.
  • Keating, Michael.
  • Kelly, John.
  • Kenny, Enda.
  • Kerrigan, Pat.
  • Lipper, Mick.
  • McMahon, Larry.
  • Mannion, John M.
  • Mitchell, Jim.
  • O'Brien, Fergus.
  • O'Brien, William.
  • O'Donnell, Tom.
  • O'Keeffe, Jim.
  • O'Leary, Michael.
  • O'Toole, Paddy.
  • Quinn, Ruairí.
  • Ryan, John J.
  • Timmins, Godfrey.
  • Treacy, Seán.
  • Tully, James.
  • White, James.

Níl

  • Ahern, Bertie.
  • Ahern, Kit.
  • Allen, Lorcan.
  • Aylward, Liam.
  • Barrett, Sylvester.
  • Brady, Gerard.
  • Brady, Vincent.
  • Briscoe, Ben.
  • Brosnan, Seán.
  • Browne, Seán.
  • Bruke, Raphael P.
  • Callanan, John.
  • Calleary, Seán.
  • Cogan, Barry.
  • Collins, Gerard.
  • Conaghan, Hugh.
  • Cowen, Bernard.
  • Crinion, Brendan.
  • Cronin, Jerry.
  • Daly, Brendan.
  • Davern, Noel.
  • de Valera, Síle.
  • Meaney, Tom.
  • Molloy, Robert.
  • Moore, Seán.
  • Morley, P.J.
  • Murphy, Ciaran P.
  • Noonan, Michael.
  • O'Connor, Timothy C.
  • O'Hanlon, Rory.
  • Doherty, Seán.
  • Fahey, Jackie.
  • Farrell, Joe.
  • Faulkner, Pádraig.
  • Filgate, Eddie.
  • Fitzgerald, Gene.
  • Fitzpatrick, Tom (Dublin South-Central).
  • Fitzsimons, James N.
  • Flynn, Pádraig.
  • Fox, Christopher J.
  • French, Seán.
  • Gallagher, Dennis.
  • Haughey, Charles J.
  • Keegan, Seán.
  • Killeen, Tim.
  • Lalor, Patrick J.
  • Lawlor, Liam.
  • Lemass, Eileen.
  • Lenihan, Brian.
  • Leyden, Terry.
  • Lynch, Jack.
  • O'Leary, John.
  • Reynolds, Albert.
  • Smith, Michael.
  • Tunney, Jim.
  • Wilson, John P.
  • Woods, Michael J.
  • Wyse, Pearse.
Tellers: Tá, Deputies Creed and B. Desmond; Níl, Deputies P. Lalor and Briscoe.
Amendment declared lost.
Amendments Nos. 24 and 25 not moved.

I move amendment No. 26:

In page 12, subsection (1), line 6, to delete "as a conveyance free from incumbrances of" and substitute "to convey free from incumbrances".

This is purely a drafting amendment. The noun "conveyance" has acquired a somewhat technical character amounting almost to a deed of conveyance. That is not what is intended here because the vesting certificate will not, in fact, be a deed of conveyance although it is to have the same effect. The use of the verb "to convey" avoids this little problem.

Amendment agreed to.
Amendment No. 27 not moved.

I move amendment No. 28:

In page 12, subsection (2), lines 11 and 12, to delete "and that rent for the dwellinghouse has been paid up to date".

This amendment relates to the requirement in the Bill that the householder cannot get his freehold title without having paid all arrears of rent. There is considerable ground for suggesting that the Register of Titles should not be turned into a rent collector. I do not think that it is any business of the registrar to ensure that arrears of rent are paid. The position would be that if the freehold had been conveyed the landlord would still be entitled to proceed by way of court process for any arrears. It seems wrong that the registrar should be turned into such a rent collector.

Another point which I wish to make in connection with this is that rent might not have been paid for years. I quoted to the Minister cases where rent might not have been paid for 50 or 60 years. In such circumstances a large amount of the rent would be statute barred because, as the Minister is aware, if a person does not go to the bother of collecting a debt or rent it becomes statute barred after a certain period of time. It appears that under this provision the registrar, cum-rentcollector, would be put in the situation not alone of having to collect the arrears of rent but also of having to collect the rent for anything up to 50 years. The Minister should look at this from two points of view. Firstly, he should see if he could accept the amendment in toto and discharge the registrar from having the function of being a rent collector. If he is not pre-pared to accept that principle he must ensure that there is no obligation on the registrar to collect arrears of rent which, were it not for this subsection, would have been statute barred. It would be unjust if the householder in circumstances I have outlined could not obtain his freehold title without having to pay 50 years arrears of rent.

The Minister may say that there is a legal and moral obligation on such a person to pay such rent but there is no legal obligation on him to pay it other than within the terms of the statute which, in relation to moneys due under a charge on real property, would be 12 years. From the moral point of view, while I agree that every man should pay his debts, if a landlord had not bothered to collect rent for 50 years or if he is not available I do not see that there is any moral obligation on a householder to go back beyond the terms of the statute. The Minister should accept the principle that the registrar should not be turned into a rent collector, and if he is not prepared to accept that principle he should limit the amount of rent that would have to be paid to the amount which is not statute barred. As this provision is framed it would have the effect of putting an onus on the registrar to collect all arrears dating back to the date when rent was last paid.

I agree with Deputy O'Keeffe. There is a situation in the Irish legal system, and in our own approach to property, whereby a person who has been in continuous occupation of land and has not paid rent for 12 years or acknowledged the right or title of any person to the property then the person after 12 years acquires a right which gives him full fee simple ownership in the property. There are a couple of exceptions, one being insanity on the part of the person who fails to collect the moneys, and the second is in the case of an infant. Other than in such cases a person after continuous occupation for 12 years can have himself registered in the Land Registry with a possessory title. The danger I see is that if the Minister gives a power to the Registrar of Titles to enforce the collection of rents over the 12 year period he is interfering with the long held title in the Irish countryside of a squatter's title. Such a title arises after 12 years' continuous occupation of land without any objection from anybody or without any admission on the part of the person to the right of anybody else.

This section could have the effect of changing the present position. If this occurs the example being given may not be confined to landlord and tenant but may extend further into a lot of additional pieces of legislation coming before us in the future. It may also lead to questions being asked about the ownership of many farms. When a farmer who is 12 years in possession of his land applies to the land registry to have his title brought up to date and the registrar registers him with a good marketable title. This is what has occurred since the foundation of the Land Registry. In agricultural terms the squatter's title applies, the person who has 12 years' occupation goes to the Land Registry and he is registered. Under the Statute of Limitations 1957 the debt is completely wiped out after 12 years but this will now be changed and the registrar of titles will be able to collect arrears going back over the 12 years. The Minister should consider this.

This could inflict great hardship on many people who feel that the title to their property has expired, that the debt has expired or the rents on property has expired and they now find if they want to get a fee simple title that they have to pay back over this period of 12 years. I believe it is agreed by everybody that if you do not collect the rents which are due for 12 years the law should not protect you because you have been so negligent as to allow the collection of your rents to lapse for 12 years. It is wrong for the law to come in and protect you after a 12 year period when you were completely negligent during that time.

One of the matters which the Registrar of Titles must be satisfied about before he gives a vesting certificate is that the ground rent has been paid up to date. It would be clearly confiscatory to have it otherwise. It would be grossly irresponsible to suggest that tenants who are in arrears of rent should escape liability for the arrears by purchasing a fee simple. Even if the Deputy were to argue that the landlord may still have his right to sue for arrears as a civil debt it would be clearly wrong for the State, by way of an official scheme, one assisted from public funds, to encourage non-payment of rent as I believe the amendment would do if accepted. I believe it would be clearly wrong to distinguish unfairly between the tenant who has paid his rent to date and the tenant in arrears. If rent is still due under the lease I believe there is a legal entitlement that it must be paid and that it should be paid.

Deputy O'Keeffe referred to the recovery of rent being statute barred. It is correct that the statute of limitations would apply, but that does not have the effect of giving the tenant the fee simple title. If he is to get the fee simple title he must pay his rent as legally due. As I understand it he can pay up his rent for six years and then he is entitled to carry on. Deputy O'Keeffe and Deputy Enright raised questions about the impact of section 22, particularly the need to have the rent paid up to date on (a) the Statute of Limitation Act, 1957 and (b) the Registration of Title Act and its provisions for possession of title. Those issues can be examined, and I am quite prepared to examine them, but the principle of no confiscation is involved if arrears of rent are not catered for.

There cannot be any question of confiscation where a landlord is left with his civil remedy. My basic objection to this Bill is that it is the Registrar of Titles who is being put in the position of being the rent collector. If the Minister does not accept this principle I want to press him very strongly on the amount of arrears which should be paid. I am concerned that because of the manner in which this subsection is drafted the element of confiscation in effect swings against the householder. Under existing legislation, the Statute of Limitations, he would not be liable to pay more than 12 years' arrears of rent if action in that regard were taken against him by the landlord.

The effect of this particular subsection is that if the householder wishes to avail of his rights to acquire his freehold not alone does he have to pay up the purchase money, the fees and any other lawyer expenses he is involved in, but he will have to pay in addition the arrears of rent, which are lawfully due, plus the arrears of rent going back beyond the terms of the statute, which are not lawfully due. I want to put it strongly to the Minister that if he does not accept the overall principle of turning the registrar into a rent collector, which is a very doubtful proposition, there should be no question of permitting confiscation against the householder. This subsection, as it is drafted, will provide for confiscation against the householder.

Under the present law the householder is liable only to pay 12 years' arrears. Anything else is statute barred. If he goes in to the registrar to obtain his freehold title under the Bill as it stands the registrar cannot, even on payment of the purchase money, give him his title unless the rent for the dwelling-house has been paid up to date. There are many cases all over the country where rent may not have been paid for 50 years. I am aware of a number of them. As this subsection stands the householder would not alone have to pay the amount which he is lawfully liable to pay, less the 12 years' arrears, but he would have to pay all the arrears of rent back over the last 50 years.

That is wrong.

It is fairly clear that that is the situation. If the Minister does not accept the principle I suggest that he might consider amending the subsection by including the words, "then lawfully due".

The tenant need only pay the rent lawfully due by him at the time. If it would get us out of the knot we seem to be getting into, I am prepared to look into it.

I want it made clear that only the rent is concerned.

The rent that is legally due at the time must be paid.

In the subsection as it stands that is not the situation but the insertion of the words "then lawfully due" would make it clear.

I do not accept that what I am saying is not covered by the subsection. I am advised it is, but I am prepared to re-examine it to make me 101 per cent happy.

I do not think I would be pressing the Minister unduly if I asked him to return to the question of turning the registrar into a rent collector. Why is it necessary to have the registrar collecting the rent? There could be a situation where the landlord and the tenant had agreed on the purchase money but there were arrears of rent.

Will the Deputy accept from me that the registrar will not be a collector of rent? He will only have regard for rent legally due at the time of the application.

Will it be sufficient if the last receipt for rent is produced covering the last gale day?

I should like to make a couple of rather important points. Even if we accept that the Minister will amend the subsection, as I suggest he will have to, to make sure that it is only rent that is legally due——

We both want to do the same thing.

If rent for ten years were due and the tenant went to arbitration and had his purchase money fixed at the rate of £25 per year, he would then be paying approximately £200 in purchase money plus the Land Registry fee and other expenses, but what would be the position about the £250 arrears? To whom would it be paid? The Minister says the registrar would not be a rent collector. What happens when the landlord could not be located?

The rent will be paid to whomever it is legally due——

To someone who may not be available to collect it.

——or to his agent, or it may be lodged in court.

Is it not the situation that he would be lodging the arrears of rent——

The tenant would be paying any arrears legally due to the person to whom it is legally owed or to his agent, or it can be lodged in court.

Would that mean he would have to make a special application to a court, and if so, to which court?

We have gone into this thoroughly already, as the Deputy well knows. The position is that any arrears legally due will have to be paid. There is agreement between the Deputy and me on that.

I have told the Deputy. I will read section 22 (8):

The Registrar may, if he thinks proper, lodge in Court any money deposited with him under this section and the jurisdiction conferred on him under subsection (7) shall thereupon be exercised by a Judge of the Court for the time being assigned to the circuit in which are situate the premises or any part of the premises in relation to which the money is lodged.

That more than adequately covers the type of situation the Deputy has raised.

I see the point, but in effect it means that the tenant pays it through the registrar who in turn pays it into court. Therefore the registrar is a collector.

Amendment, by leave, withdrawn.

I move amendment No. 29:

In page 12, subsection (3), lines 14 to 18, to delete from and including "for the purposes" to the end of the subsection and substitute "and shall be a good root of title".

The amendment is to some extent tied up with some of the earlier proposals I made in regard to the change from the Registrar of Deeds to the county registrars. I will not dwell at length on it. This proposal has already been defeated by a vote and I will not press it.

Amendment, by leave, withdrawn.
Amendments Nos. 30 and 31 not moved.

I move amendment No. 32:

In page 12, lines 23 to 29, to delete subsection (5).

This is purely a consequential amendment of a drafting nature. Amendment No. 51 to section 28 proposes a minor change in the substance of subsection (5) of this section and because of this change it has been considered appropriate to remove that subsection from section 22 and have it inserted in section 28.

Amendment agreed to.
Amendments Nos. 33, 34 and 35 not moved.
Section 22, as amended, agreed to.
SECTION 23.
Amendment No. 36 not moved.

I move amendment No. 37:

In page 12, subsection (1) (a), line 52, to delete "£5" and substitute "£2".

This amendment relates to the fee. A fee of £5 is a little excessive and the Minister should reduce it to £2. The issuing of a vesting certificate involves only a minimal amount of work and, while I accept that a service is being provided, £5 is excessive. Similarly the £12 should be changed to £7. Deputies Mrs. Desmond and O'Keeffe have put down similar amendments. There have been quite a lot of increases in fees in the Land Registry lately and these will be dealt with later. I know that the people in the Land Registry are providing a service for the whole country and that they are working in very overcrowded conditions but nevertheless in this instance £5 is excessive.

There is an amendment in my name in relation to the procedure under section 20 reducing the land registry fees from £5 to £2, but my other amendment relating to the reduction in fees payable in relation to arbitration is more important. The majority of householders will have to resort to arbitration because to take advantage of section 20 householders must get the consent of all parties joining in the conveyance. Tracing back superior interests and mortgages has always been the problem under the 1967 Act. The result is that householders will probably have to use the arbitration provisions most. Unless the immediate landlord owns the freehold, has no mortgage interest on it and is amenable to selling, every such case will have to go to arbitration under section 21. In relation to the cost of arbitration the figure assessed in relation to a householder in occupation applying under this part of the Act is £12 in addition to the £5 fee which I would call the application fee. We have a situation where the householder must pay a total of £17 in fees if everything goes according to plan and there are no complications.

There is another provision which we will come to later allowing for further fees, but dealing solely with arbitration, as of now the fees payable on an arbitration to the county registrar under the 1967 Act amount to £2, that is £1.50 on the application and 50p on the order. The Minister may well say that the procedure will be simpler and that the registrar in effect will look after the tenant's interests and that he will be saved the expense of a solicitor and that this is where the advantage will be. That will not be the case, because the registrar will be the arbitrator and if he is the arbitrator how can he represent the householder? The householder will be faced with the situation under this Bill of having to pay, in relation to the arbitration, a fee which is six times greater than he has to pay under the 1967 Act. At the same time, unless the arbitration is of a very simple nature, he would have to pay in addition a fee for legal representation especially when the arbitration will probably have to be held in Dublin. On that basis, I strongly suggest that the Minister should take a much more modest view of the land registry fees, which are totally unrelated to legal fees. They are fees payable to a Government Department. These fees should be of a nominal nature, and imposing, in an arbitration situation which will apply in the majority of cases, fees amounting to £17 payable to land registry plus the other expenses which are payable is too much. If the Minister feels that every encouragement should be given to tenants to avail of their rights under the terms of this Act he must think seriously about this and consider a substantial reduction.

On the second reading of the Bill we had quite a bit of toing and froing on the question of the fee and we had a certain amount of point scoring from the two sides. The fee of £5 for the vesting certificate and the additional fee of £12 for arbitration, despite what may be said, is only nominal in terms of present-day legal costs.

They are not legal costs.

The legal costs that would have to be paid by persons to buy out their ground rents if this Bill was not in existence.

They will still have to be paid.

I will not get into argument with the two Deputies opposite on legal costs or on professional charges.

It would not be in order.

I am quite satisfied that the £5 fee for the vesting certificate and the £12 for arbitration are nominal charges in comparison to present day legal costs. It cannot be claimed by anybody, especially members of the legal profession, that a maximum total expenditure of £17 would create hardship for any tenant who wishes to avail of his rights under this Bill. It is to be assumed that a very high proportion of those applying under this Bill will be able to have their work done for £5. To make arbitration available for a net extra cost of £5 as one of the amendments proposes would have an undesirable result. Reducing the differential in cost between the consent procedure and arbitration could encourage applicants to by-pass the cheaper consent procedure, and this could create delay problems at arbitration level. The ideal thing is for groups of tenants to approach the landlord and to use the consent procedure to get their vesting certificates for £5 each. This is by far the most practical and sensible thing to do, and I should like to say that arbitration should not be resorted to except in a case in which there is genuine difficulty, for instance, in relation to entitlement or price. This general approach is also reflected in section 23 (5) which provides that the £12 fee as well as any other costs of the arbitration can be ordered to be paid by a party who has behaved unreasonably.

In any event, the fees of £5 and £12 represent the limits of the Government's contribution which, I might add, is considerable. It must be remembered that these fees can be compared in many cases with figures going into hundreds of pounds which would be payable by way of legal costs, including the cost of arbitration, under the 1967 Act. I do not want to go back— it would be out of order—to some of the things said in the Second Reading speech on the question of fees but I believe, and it is accepted by all, that £5 is a very reasonable fee having due regard to what the legal fee would be if this scheme were not in operation.

It would appear to me that there is genuine confusion in the mind of the Minister as between fees that are payable to the Land Registry, which I call Land Registry fees, and legal fees. The position is that in a very simple case only nominal fees would be payable to the Land Registry and it is very probable that the householder will be able to take advantage of this scheme without engaging a solicitor. This would apply in a large estate where a group of householders came together and made an agreement with the landlord. The confusion arises in the Minister's mind, if I may respectfully suggest, between Land Registry fees and legal fees because in cases of a complicated nature in relation to Land Registry fees it is almost certain that the householder will have to engage a solicitor and pay his fees also.

No, I do not agree with the Deputy in that.

Who will represent the householder at the arbitration?

I would be quite capable, I believe, in going into the Land Registry to buy out my lease.

I am quite happy that the Minister would be quite capable but the Minister's knowledge of the Ground Rent Bill, with respect, is far greater than that of most householders.

The Minister seems to be missing the basic point. Who is going to do the work for the householder in an other than very simple case? Who is going to represent him at the arbitration? I gather the Minister takes the view that the registrar will look after the householder. Might I put it to the Minister, is that his viewpoint?

I should like to say that there may be some genuine confusion also on the Deputy's part. We will tease it out until such time as none of us is confused. The arbitration will not be a formal hearing and there is no need whatsoever for any member of the legal profession to be there. The arbitrator will be able to decide on the papers in front of him and the correspondence he has. If a person wants to make his case to the arbitrator he can go there himself. There is no way that this is a big ready up, that every person who goes to arbitration should go only in the company of a member of the legal profession. This would defeat the purpose. I am quite sincere in saying that anybody who has a case for arbitration is entitled to go himself and put his case to the arbitrator.

I put it to the Minister that there is a very simple procedure available for obtaining grants of administration from registrars. Take the case where a person who owns a county council house dies. His personal representative can take out a grant of administration if the valuation of the property is under £5. That scheme was introduced by a Fianna Fáil Government about 12 or 15 years ago. If the Minister checks he will find that that scheme has been availed of to a very small extent.

In my capacity as a TD for my constituency, I have brought 20 to 40 people to the county registrar.

Over the last ten years?

Yes. That was in the last four years. The scheme was in existence before I knew of it. That is just an aside.

The Minister did it for them. Somebody had to do it for them.

But I did not charge.

Progress reported; Committee to sit again.
Business suspended at 1.30 p.m. and resumed at 2.30 p.m.
Top
Share