Might it be considered necessary to put in a separate definition of the expression used throughout this Bill of "controlled dwelling"? The Bill refers, in section 5 and in other sections, to a controlled dwelling. The effect of the Supreme Court decision is that there are no longer any controlled dwellings, as the position stands at the moment, except perhaps such control as still exists in respect of small dwellings under Part III of the 1960 Act, which was not affected by the Supreme Court decision. I am aware of the definition in the 1960 Act of a controlled dwelling as including all premises. Nevertheless, the reference here to controlled dwellings might possibly give rise to some confusion and needless disputation. To avoid that, it might be advisable to include a new definition in this Bill of a controlled dwelling being a premises which was controlled before the Supreme Court decision.
Rent Restrictions (Temporary Provisions) Bill, 1981: Committee and Final Stages.
The definition of a controlled dwelling is in Part I, which was not deemed to be unconstitutional by the Supreme Court and so is not affected.
This is a section which caused a certain amount of anxiety on Second Stage. I wonder if, during the period of Question Time, the Minister of State had an opportunity of taking into account some of the points made from all sides of the House on this section? Would the Minister like to say anything on section 4 at this time?
Section 4 provides that increases of rents of controlled dwellings notified after 18 April 1980 — the date of the High Court decision — shall not be enforceable in law for the six months that this Act is in force. This applies even if the tenant agreed to a rent increase before the passing of this Bill, although, where the tenant agrees to a rent increase after the Bill is passed, the section shall not affect such an increase. I do not think there are any great fears about section 4. Tenants will have to pay an increase only where they mutually agree. A landlord cannot impose an increase. If he seeks an ejectment order under section 5 he cannot get one. This Bill takes this clearly into account.
The date, 18 April, the date of the Supreme Court decision, has been taken as the operative date. That action was pending for a considerable time. Some landlords and tenants may have entered into agreements pending the announcement of the court decision. Will the agreements entered into before that date stand? What will be taken as the date of the agreement? If agreement was reached before 18 April but not signed until after that date, which date would apply?
If the landlord and tenant freely entered into an agreement before 18 April and finalised it after that date they are not eligible; the Bill only takes into account agreements finalised after 18 April.
Would the date the Supreme Court action was initiated not be more suitable? Many people thought part of the Rent Restrictions Act would be found unconstitutional and I am sure many people like myself would consider the date the action was initiated as being preferable to 18 April.
Prior to 18 April the Act was not unconstitutional and it was deemed to be unconstitutional on that date by the Supreme Court. Any agreements entered into before that date can be considered to be a mutual agreement.
I do not think the Minister is correct in his last comment. When the court deems the Act to be unconstitutional, it means it is, and always was, unconstitutional.
I am not completely happy about section 4 which purports to draw a distinction between agreements entered into before and after the passing of this Bill, and I do not think that distinction is warranted. The section deems unenforceable agreements entered into before the passing of the Bill. In my view there should be a qualification: it should be unenforceable at the option of the tenant. Agreements entered into after the passing of the Act are considered to be in force and I am not happy that that should be, because the same considerations apply to all.
The whole basis of rendering agreements unenforceable is the uncertainty that existed in the mind of the tenant as to what his position would be when the Supreme Court decision was made, but that uncertainty is not, and will not be, cleared up by this Bill. He will be uncertain of his position until the new legislation is adopted and because of that uncertainty he may be constrained to enter into an agreement after the passing of this Bill. His uncertainty arises in the same way as the uncertainty of the tenant who entered into an agreement before the passing of this Bill. Why should he be treated differently because he entered into an agreement after the passing of the Bill rather than before it? He should be given the option to stand over the agreement or to avail of such rights as he will be given under the new Bill when it is passed.
If the Minister was to agree to that line of reasoning the wording of the last sentence would be: instead of the words "before the passing" we would have "during the currency of the Act" interspersing "and at the option of the tenant". I ask the Minister to consider that point.
When an Act is passed it must be assumed that people are aware of what it contains and they enter into an agreement in the knowledge that they do not have to pay an increase unless they agree. On that basis I could not accept the proposed change.
I do not want to labour the point unduly, but it is wrong to say that the passing of this Bill will give peace of mind to any of the affected tenants. All this Bill will do is freeze their position for six months. These people are worried about their long-term situation, what their security of tenure will be over a number of years, and not over the next six months. They are primarily concerned about their long-term prospects. This Bill will not allay their fears but might induce them to enter into a commitment they would regret when the new legislation is introduced.
Is the Minister aware of the concern of some Members of the House about this legislation? I am satisfied with it but between now and when this Bill is introduced in the Seanad, the Minister might look at this section in the light of the views expressed here today and if there is room for improvement on the lines suggested, he might give the Deputies an assurance that he will take their views into account and introduce the necessary amendments in the Seanad.
Of course we must keep an open mind when introducing legislation and I will look at this section between now and when it is discussed in the Seanad to see if anything can be done but, I have to be honest and say I do not see any reason for a change. I will have the section examined and if there is need for a change I will introduce an amendment in the Seanad. At this time I cannot give any other commitment except to say that it will be looked at.
I do not want to be excessively legalistic about this section, but I think we should get it right because too often in the past legislation which was not right gave rise to many court cases. The last six words of the section are not needed and give rise to ambiguity. I propose therefore that the works "while this Act is in force" be deleted from the section.
The purpose of the section is to prevent an increase in rent communicated between the time when the High Court proceedings were instituted and the date of the passing of this Bill, whether it be communicated by the landlord or agreed. The intent is to ensure that the tenant is not bound by that increase in rent and is not required to pay the increase. That, I presume, is the intention. In the long term whatever new rent is to be determined will be determined under the new and comprehensive legislation to be introduced. As section 4 is at present drafted it appears that, if the landlord has communicated an increase in rent after April 1980 or if the tenant has agreed to pay the increase after that date, before the passing of this legislation, the tenant would be bound by that agreement but the landlord would be unable to enforce it before the courts while this Act is in force. The correct legal interpretation would appear to be that after the six months have expired the landlord could bring proceedings to seek all the arrears due.
There is no logical reason for the words "while this Act is in force" in the section. Their deletion would copperfasten the intent of the section and remove an ambiguity which could cause concern to tenants who may have previously agreed an increase and may feel they have to save money in case the landlord brings proceedings against them in six months' time seeking that increase. The Minister should seriously consider amending the section by removing those words. They have no great relevance and serve only to create ambiguity.
I have to disagree with my colleague. This is only temporary legislation and the question of arrears or any attempt to take action can be dealt with in the substantive legislation. On that basis I cannot accept Deputy Shatter's request to delete the words.
I presume the intention behind the words "shall not be enforceable" is to benefit the tenant. That is what the section is about. It would appear that tenants could enter into agreements which would be more beneficial to them than agreements made under the new legislation. If it is not enforceable, that applies to the tenant and also to the landlord. Some tenants who entered into agreements since 18 April may end up in a far worse position under the new substantive legislation. Possibly the section could be redrafted.
A rent increase is not enforceable. The tenant is protected and cannot be forced to pay an increase during these six months. He has the protection of the law. Any other matter will be dealt with in the substantive legislation.
The limit of the powers of the court under this section runs up to any time before the execution of an order for possession. If the point were reached when an order for possession were actually executed, that would be the end of the tenancy for all time and the tenant, once ejected, would lose all his rights which could have been built up over many years. I would ask the Minister to consider giving for a fixed period a tenant who had been ejected the right of reinstatement to the premises. That is by no means unusual. Such a provision was granted in the case of certain ejectments under the 1860 Act, many of the provisions of which are still law in this country. It would be quite a shame if by reason of being quick off the mark a landlord not only got an order for possession but succeeded in putting it into effect, a statutory tenant thus losing all his rights for all time. The Minister might consider providing for the right of re-instatement for a month or two.
This provision is the same as in the other Act. Where an order for possession has been given legally there is no change in the situation. I do not see the Deputy's point. This section continues what is already there and does not put tenants at risk.