Land and Conveyancing Law Reform Bill 2006 [Seanad]: Report Stage.

I move amendment No.a1:

In page 15, between lines 23 and 24, to insert the following:

"3.—The operation of this Act shall be reviewed by the Minister and a report shall be laid before the Houses of the Oireachtas five years after the commencement of this Act.".

Having regard to the late amendments that have been introduced by the Minister and to the highly technical nature of this Bill, I ask that this matter be reviewed. The history of this kind of legislation is such that it is visited by us in this House on a very infrequent basis. Given the extensive changes that we are now enacting in law, the highly complex nature of the Bill, and its importance in the context of electronic conveyancing and modern methods, it is not sufficient for the Minister to review this matter by way of legislation or consultation with his colleagues form time to time. Reports in the form of a review of the changes this Bill proposes should be laid before the House. A five-year period is not unreasonable and I ask the Minister to accept this amendment.

I appreciate the Deputy tabling this amendment and understand the motives behind it, but I am not inclined to accept it because of the relatively broad nature of the legislation and the fact that it is, in effect, a very substantial updating of our laws in regard to conveyancing. It is probably unlikely that there would be adequate experience over a five-year period to warrant a full review of every section in the legislation. Therefore, I propose an alternative amendment.

In amendment No. 1 to section 5, I propose, following consultation with Attorney General, a provision which will permit the Minister, during a five-year period following commencement of the Act, to deal with any difficulties which may arise either in the bringing into operation or in giving effect to a provision. Such regulations will be made with a view to removing that difficulty.

Those regulations would be on the basis that it would be required that a draft of the regulations would be laid before both Houses of the Oireachtas in advance and that both Houses would approve the draft by means of a resolution. I believe that will take care of what Deputy Charles Flanagan is trying to achieve.

I am prepared to accept what the Minister said. I take it he is referring to amendment No. 1, which I accept. I would have thought both amendments were sufficiently connected. Perhaps we could have discussed them together.

No. This is the way it is.

It is take it or leave it. I will withdraw my amendment. I thank the Minister and acknowledge what he said.

Amendment, by leave, withdrawn.

Amendment No. 1 is in the name of the Minister while amendment No. 2 is related and an alternative. Therefore, amendments Nos. 1 and 2 may be discussed together.

I move amendment No. 1:

In page 20, to delete lines 21 to 40 and substitute the following:

"(2) A regulation undersubsection (1) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation is annulled accordingly, but without prejudice to the validity of anything previously done under it.

(3)(a) If in any respect any difficulty arises during the period of 5 years from the commencement of any provision of this Act (including a provision that amends another Act), either in bringing into operation or in giving full effect to the provision or the Act as amended, the Minister may by regulations do anything which appears to be necessary or expedient for removing that difficulty.

(b) In paragraph (a) a reference to another Act is a reference to an Act falling within either paragraph (a) or (b) of the definition of “Act” in section 2(1) of the Act of 2005.

(4) Regulations undersubsection (3) may, in so far only as it may appear necessary for the removal of such difficulty, modify a provision referred to in that subsection provided such modification is in conformity with the purposes, principles and spirit of this Act.

(5) Where the Minister proposes to make regulations undersubsection (3)

(a) he or she shall, before doing so, consult with such other (if any) Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister of the Government in relation to the proposed regulations, and

(b) he or she shall cause a draft of the regulations to be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each such House.

(6) A regulation under this section may contain such consequential, supplementary and ancillary provisions as the Minister considers necessary or expedient.".

This amendment responds to an issue raised by Deputy Tuffy on Committee Stage discussions on section 5. I indicated I would look at it and ask the Attorney General about it. Amendment No. 1 is the outcome of those discussions.

It provides for a new subsection (3) for the making of regulations during a five-year period following commencement to remove any difficulty encountered in bringing a provision of the Act into effect. It may do so, however, only on condition that any modification is in conformity with the purposes, principles and the spirit of the Act and that a draft of any such regulation shall be laid before both Houses of the Oireachtas in advance and shall not be made until a resolution approving of the draft has been passed by both Houses.

I believe that will take care of what Deputy Tuffy was endeavouring to do and that it answers Deputy Charles Flanagan's point.

I thank the Minister for taking on board the issue I raised. He obviously accepted the point we made about the constitutional problem which would arise without this amendment being made. That is welcome. Was that the Minister's reasoning? Was he trying to deal with the constitutional issue?

I welcome that and will withdraw amendment No. 2 on that basis.

This is rather novel. It is broadly similar to what the Minister's colleague, the Minister for Health and Children, did in regard to the Nursing Home Support Bill 2008 and it is important. I am not sure if the Minister was in the Chamber but I had the opportunity last week or the week before to refer to this issue of a Minister changing the law by way of regulation rather than primary legislation. I have a concern about it and wish to voice once again my concern about the manner in which changes to our laws are being made by way of regulation without appropriate or adequate scrutiny and debate.

I note this is similar to the mechanism contained in the Nursing Homes Support Bill 2008 and I look forward to monitoring it and seeing how it works. I also see a role of Oireachtas committees in this and perhaps the draft regulations could be referred to an Oireachtas committee for some form of agreement prior to being finally approved.

Amendment agreed to.
Amendment No. 2 not moved.

Amendment No. 3 is in the name of the Minister while amendment No. 4 is related and an alternative. Amendments Nos. 3 and 4 may be discussed together.

I move amendment No. 3:

In page 21, to delete lines 10 to 16 and substitute the following:

"(2) Subject tosubsection (1), and without prejudice to section 26(2)(f) of the Act of 2005—

(a) any reference in an enactment to—

(i) the Settled Land Acts 1882 to 1890,

(ii) an Act included in that collective citation, or

(iii) any provision of such an Act,

shall be construed as a reference to this Act or to the equivalent or substituted provision of this Act, as may be appropriate,

(b) any reference in an enactment to—

(i) the Conveyancing Acts 1881 to 1911, or

(ii) an Act (other than an Act repealed by this Act) included in that collective citation,

shall be construed as including a reference to this Act, and

(c) any reference in an enactment to—

(i) an Act that is included in the collective citation "the Conveyancing Acts 1881 to 1911" and that is repealed by this Act, or

(ii) any particular provision of such an Act, shall be construed as a reference to this Act or to the equivalent or substituted provision of this Act."

Again, this amendment relates to a matter raised by Deputy Tuffy on Committee Stage in regard to section 8. I said I would ask the Attorney General about it. The more comprehensive interpretation amendment I propose is the outcome of those discussions and it will replace the provisions to which Deputy Tuffy drew attention.

I have no issue with that.

Amendment agreed to.
Amendment No. 4 not moved.

I move amendment No. 5:

In page 21, between lines 23 and 24, to insert the following:

"(3) In so far as they survive, titles of honour or dignity arising from feudal baronies and manorial lordships are abolished.

(4) If after the commencement of this section a person purports to sell or offer for sale a title of honour or dignity abolished bysubsection (3), he or she shall be guilty of an offence.”.

This is another issue the Minister said he would examine before Report Stage. We had a good discussion on it on the last occasion and the Minister said that if we included this provision in the legislation, he was afraid it could give rise to the impression that these titles were land interests. At the same time, he said he would ask the Attorney General to review the point raised by this amendment to see if legislation could be brought in.

The Labour Party raised this issue in legislation I brought forward in the Seanad a couple of years ago but nothing has happened since then. It is an issue of concern to the Genealogical Society of Ireland. Has the Attorney General looked at it since and, if so, what is his view?

My view in regard to this issue has not changed since Committee Stage. I made the point that the types of titles to which the Deputy refers, titles of honour or dignity arising from feudal baronies or manorial lordships, do not, in any way, amount to an interest in land. To include them in the Land and Conveyancing Law Reform Bill 2006 would give a misleading impression that, to some degree, they amount to having an interest in land.

On Committee Stage I said that, after the passing of this legislation, I would bring the issue to the attention of the Attorney General to see if it could be dealt with elsewhere but not in a Bill dealing with interests in land. As Deputy Tuffy knows, titles do not adhere to the land and should not be included in a Bill dealing with conveyancing issues.

Does the Attorney General propose to deal with this by way of legislation? Rather than putting it on the long finger, there was an opportunity with this legislation to deal with it fairly speedily. If it is not included in this legislation, will it be put on the long finger?

There is nothing on the agenda. These are personal rights and are personal to the people involved. They are not property rights. They cannot be included in a Bill which deals with real property issues.

Amendment, by leave, withdrawn.

Amendments Nos. 6 to 8, inclusive, are related and will be discussed together.

I move amendment No. 6:

In page 21, between lines 23 and 24, to insert the following:

"(3) Subject to this Act a fee simple shall be freely alienable by the owner thereof.".

On Committee Stage, the Minister said he would examine this amendment. While section 9(2) does not rule against inalienability, the rule itself is contained in an Act repealed by section 8(3), thus the rule is not stated in the Bill. The Labour Party believes this has the potential to cause confusion and it is necessary to state the actual rule.

My amendments Nos. 7 and 8 have the same intent as Deputy Tuffy's amendment. Amendment No. 7 drops the indirect reference to the rule against inalienability from section 9(3)(c) while amendment No. 8 reinstates the rule in a more positive way with a new section 9(4).

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 21, to delete lines 29 to 30.

Amendment agreed to.

I move amendment No. 8:

In page 21, between lines 33 and 34, to insert the following:

"(4) A fee simple remains freely alienable.

Amendment agreed to.

I move amendment No. 9:

In page 22, line 23, after "time" to insert "(whether specified or unspecified)".

On Committee Stage, the Minister stated a tenancy at will is specifically excluded from the definition of tenancy in section 11(3) which we believe is not correct. Section 11(3) allows for a leasehold estate for an uncertain term which would seem to include a tenancy at will. In any event, there is no clear policy reason to abolish a tenancy at will.

The Deputy may be referring to amendment No. 11 as well.

They are both related.

The Deputy's amendment No. 9 proposes to insert a reference into section 11(3) to a tenancy for any period whether specified or unspecified. Section 11(3)(c), however, already refers to a leasehold estate for a term which is uncertain and the proposed amendment would be superfluous. There is a risk that including a reference to an unspecified period, in addition to the existing reference to an uncertain term, would be likely to cause confusion as to the respective meanings of the terms. I believe it would be better to leave this out.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 24, between lines 15 and 16, to insert the following:

"(4) Where on the commencement of this section, or on a person becoming entitled to a fee tail after such commencement, another person's estate or interest in land is extinguished by virtue ofsubsection (3), the second-mentioned person may apply to the court within 12 years of such extinguishment for an order determining the amount of compensation if any that should be paid to the second-mentioned person, and such order may make provision for charging the payment on the land subject to such conditions as the court sees fit.”.

On Committee Stage, I pointed out the UCC academic, Professor John Mee, believed section 13(3) may be unconstitutional as it provides for the abolition of property rights without compensation. This amendment is designed to save the section from being unconstitutional by allowing a court to determine whether any compensation should be paid. The Minister said the consent of fee tail is required but that misses the point. The issue we are concerned with is the rights, if any, of the persons who would inherit the fee tail. Their rights are being extinguished without compensation by this legislation.

The Bill was amended subsequent to the article to which the Deputy refers which first raised this matter. Section 13 prohibits the future creation of a fee tail estate. Any future attempt to do so would create a fee simple instead. Going back to our time in college, it is good to see this procedure prohibited because it caused many law students difficulty when slaving over property law.

Section 13(3) goes on to convert existing fee tails into fee simples. Under a 19th century statute it already is possible, under certain conditions, to bar the entail, that is, to terminate a fee tail estate. One such condition is that the permission of the protector of the entail is given. This condition is carried over into section 13(3), which will ensure interference with any existing interest in the land is avoided. Since the provisions in section 13 will continue to protect any existing interest in the land, I do not discern a need for the provisions proposed by Deputy Tuffy.

At least the Minister has looked into this and I will accept his assurances on it.

Amendment, by leave, withdrawn.

I move amendment No. 11:

In page 24, line 36, to delete "is void both at law and in equity" and substitute the following:

"shall be deemed to be a grant of a lease for an uncertain period liable to termination by reasonable notice by either party, for the purposes ofsection 11(3) (c)”.

The Bill prohibits leases for lives but by stating they are void, it gives them no effect whatsoever. This is not in line with the manner in which, for example, fees tail are created, whereby the purported grant of a fee tail operates as a grant of a fee simple. A purported lease for lives should operate as an indefinite lease terminable at will.

If the grant of the lease is void, as specified in the section, how could it then be deemed to be of a particular type of lease? Even if this were accepted, the effect of the amendment would be the creation of a tenancy at will which is specifically excluded from the definition of tenancy in section 3.

Amendment, by leave, withdrawn.

Amendments Nos. 12 and 13 are related and will be taken together.

I move amendment No. 12:

In page 30, line 2, after "1973" to insert "and the Charities Act 2009".

These are drafting amendments to insert appropriate references to sections 23 and 24 of the Charities Act 2009. Deputies will recall that the legislation has been enacted since our Committee Stage deliberations.

Amendment agreed to.

I move amendment No. 13:

In page 31, line 8, after "1973" to insert "and the Charities Act 2009".

Amendment agreed to.

Amendment No. 14 requires recommittal as it does not arise from Committee Stage proceedings. As amendment No. 14 is related to amendment No. 33, they may be discussed together.

Bill recommitted in respect of amendment No. 14.

I move amendment No. 14:

In page 33, between lines 5 and 6, to insert the following:

"(b) an order for the taking of an account of incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances,”.

Amendments Nos. 14 and 33 arise from my discussions with Deputy Flanagan on the issue of judgment mortgages. In response to his comments, I pointed out that where land was co-owned, an application by a judgment mortgagee had to be made under section 31 rather than section 116. Having considered the matter, I am proposing amendment No. 14 to ensure there is coherence between sections 31 and 116. The amendment incorporates a provision already set out in section 116(2)(a). It will allow the court to make “an order for the taking of an account of incumbrances affecting the land” under section 31, as is already the case under section 116. Amendment No. 33 which will incorporate a cross-reference to section 31 in section 116(1) will alert a judgment mortgagee to the fact that in the case of co-owned land, an application must be made under section 31 rather than section 116. These clarifying amendments will ensure there is consistency between the two sections.

I thank the Minister for his explanation. It is important to ensure there is full clarity in this regard. I welcome the amendments.

Amendment agreed to.
Bill reported with amendment.

As amendments Nos. 15 and 16 are related, they may be discussed together.

I move amendment No. 15:

In page 35, line 17, to delete "In" and substitute "Subject tosubsection (3), in”.

These amendments result from the Committee Stage discussion on the acquisition of easements by means of the doctrine of lost modern grant. As I indicated to the select committee, the reforms contained in the Bill in relation to easements were recommended by the Law Reform Commission. Following a review of the relevant provisions following our select committee discussion, I am proposing to reintroduce an element of flexibility which has been available under the doctrine of the lost modern grant. The proposed new section 35(3) provides that where the required relevant user period was not immediately prior to the proceedings establishing the existence of an easement, the court may nonetheless make an order declaring the existence of the easement, as long as it is satisfied that it is just and equitable, in all the circumstances of the case, to do so. This will permit the courts to have regard to factors such as long use of easement, even if that use has been discontinued prior to the commencement of the action. Allowing courts to make such orders, if they are satisfied that it is just and reasonable to do so, will provide a degree of flexibility in this area.

I ask the Minister to give the House a practical example of what he is talking about. It seems we are vesting in the court the power to make an order in respect of, for example, a right of way that may be in dispute and heretofore would have remained in dispute or could not have been clarified because it did not fulfil the requirements of the appropriate common law doctrine. Am I right in saying that in such cases, the court will now be in a position to make a declaration or order not on the basis of any legal precedent or principle, but on the basis of what is deemed to be just and equitable in the circumstances? Perhaps we could be given a practical example of how this might go before the courts, for example, in the event of a right of way dispute.

The Deputy will be aware that an easement such as a right of way is normally expressed or implied. There are three ways of acquiring an easement, the first of which involves the prescription at common law. In such cases, it is necessary to establish the use of an easement from time immemorial which in practice is deemed to be 1189. In general, the courts are willing to presume enjoyment of an easement since 1189 if proof of at least 20 years, or for as long as witnesses can confirm, is available. It is obvious that squatters' rights apply in certain circumstances. However, this presumption can be rebutted by any evidence which shows that the right could not have been enjoyed since 1189.

The second means of acquiring an easement involves the prescription under the doctrine of lost modern grant which is the subject of the amendments before the House. It was developed at the end of the 18th century. If one can establish that an easement has been used for at least 20 years, the court is willing to assume, on the basis of a legal fiction, that a formal grant of the easement by deed was made at some stage but the deed has been lost in the meantime. However, this assumption can be defeated if it can be shown that during the period of use, there was no person who could lawfully have granted the easement.

The third means of acquiring an easement involves the prescription of the Prescription Acts. It appears that the Acts were intended to replace the prescription at common law and the prescription under lost modern grant but failed to do so. The main difference is that under the Prescription Acts, the user period must run right up to the time of the proceedings in which the right is claimed.

A report on the acquisition of easements andprofit àprendre by prescription was produced by the Law Reform Commission in 2002. It stated the law in this area was unnecessarily complicated and recommended that it should be updated and simplified. It identified that the principal defect of prescription at common law and prescription under lost modern grant was the uncertainty to which they gave rise for the purchasers of property. In other words, a purchaser of property could find himself or herself bound by rights which he or she had no means of discovering by making reasonable inquiries or inspections. The risk arises from the fact that it is possible to claim an easement by these means, even though the right is not being exercised at the time and may not have been exercised for many years.

Many of the complexities in this area in Ireland and probably in the United Kingdom also relate to the acquisition and exercise of rights of way over property. I suppose these complexities have been the source of much litigation during the years. I was involved in a famous case which received national publicity. It proved beyond doubt the idea that "once a right of way, always a right of way", even if the right of way has not been used for many years. In the case to which I refer, evidence was procured and produced in the High Court to show that the right of way in question had been used in the times of Fionn MacCumhaill. That is what was said, at least, although I am not sure if the evidence stood up. It was argued that according to the Brown Bull of Cooley, the pass in question — the bóthar maol, as it was called — was used to arrange a retreat back to Sligo.

The Law Reform Commission concluded that there was no virtue in retaining prescription at common law or prescription under lost modern grant and recommended their abolition. The new scheme proposed by it, to which statutory effect is being given in the Bill, is based on continuous use over a 12-year period. When the lack of flexibility this would involve was discussed by the select committee, it was agreed to reconsider the matter. Following a review of the relevant provisions, it is now proposed to reintroduce an element of flexibility which was available in the case of prescription under lost modern grant. The proposed new section 35(3) provides that "where the relevant user period was not immediately before the commencement of the action" to establish the existence of an easement, the court may nonetheless make an order declaring the existence of the easement if it is satisfied it is just and equitable to do so. As I said, this will permit the court to have regard to factors such as long use of an easement, even if that use had been discontinued prior to the commencement of the action.

We have moved on to the travails of Fionn MacCumhaill in the Minister's constituency of Louth. At a committee meeting earlier today we listened to the Minister speak about Éamon de Valera's heart.

That was Deputy Jim O'Keeffe.

The Minister has had a very busy day. I take it from what he has said the court will now be in a position to disregard many of the long-held rules that govern what constitutes a prescriptive right of way. It will be possible to set these rules aside if it can be shown that the acquisition or otherwise of a right of way might, in the circumstances, be just and equitable.

As I said, we are giving the court greater flexibility.

The 12-year period will not have to run up to the date of commencement of the action. The court will have much more flexibility. I hope we will not have as much litigation as we have had in recent years.

Amendment agreed to.

I move amendment No. 16:

In page 35, between lines 21 and 22, to insert the following:

"(3) The court may make an order undersubsection (2) where the relevant user period was not immediately before the commencement of the action if it is satisfied that it is just and equitable to do so in all the circumstances of the case.”.

Amendment agreed to.

Amendment No. 17, in the name of the Minister, arises out Committee proceedings. Amendments Nos. 18 and 19 are related, therefore, amendments Nos. 17 to 19, inclusive, may be discussed together by agreement.

I move amendment No. 17:

In page 39, to delete lines 15 to 22 and substitute the following:

"(a) a building owner fails within a reasonable time to—

(i) make good damage undersubsection (2)(a), the adjoining owner may apply to the court for an order requiring the damage to be made good and on such application the court may make such order as it thinks fit,

or

(ii) reimburse costs and expenses undersubsection (2)(a) or to pay reasonable costs or compensation under subsection (2)(b), the adjoining owner may recover such costs, expenses or compensation as a simple contract debt in a court of competent jurisdiction.”.

This amendment arises from issues raised by both Deputy Tuffy and Deputy Charles Flanagan, on Committee Stage.

Section 44 provides a new mechanism by means of which a building owner may carry out works to a party structure. However, if the builder fails to make good any damage done to the property of the adjoining owner or to pay reasonable costs for having the damage repaired, the adjoining owner must have the appropriate remedy. The amendment I am proposing makes it clear that the adjoining owner may apply to the court for an order requiring that any damage be made good. If the building owner fails to do so within a reasonable time or alternatively if the building owner fails to reimburse the costs of expenses for doing so within a reasonable period, the adjoining owner may recover the costs and expenses as a simple contract debt.

The new element in this revised text refers to the possibility of an adjoining owner obtaining a court order requiring that any damage done by the building owner be made good. I believe it takes care of the issues raised by the two Deputies.

I thank the Minister for amendment No. 17. He deals with an issue I raised when I was a Senator when we were discussing this Bill. I also raised it on Committee Stage. I made the point that while various remedies were available to the building owner, if he or she did not put right the damage there was only a provision whereby the adjoining owner could get costs through the courts. He or she could not get the damage remedied to which the costs were applicable.

I am grateful the Minister has taken on board the issue I raised and that he has tabled amendment No. 17 to address it. We put a great deal of work into this legislation in the Seanad and at the Dáil select committee. There is much talk to the effect that amendments are never accepted by the Government. I saw a television programme where a former Minister said that amendments from the Opposition were no longer accepted by the Government. That is not true. This case shows that the Minister is taking on board a point that has been raised by the Opposition and he is dealing with it in an amendment, and I acknowledge that.

However, in amending section 44(4), the Minister has now created a situation whereby if the building owner fails to make good the damage, then the adjoining owner can apply to court for the building owner to do works to undo the damage. The Minister has removed the provision whereby the building owner could, at his discretion, offer compensation to the adjoining owner. I make this point in case it is an error on the part of the Minister.

The situation now is to the effect that if the building owner fails to make good the damage within a reasonable time, then the adjoining owner may apply to the court for an order requiring the damage to be made good. On such application, the court may make such order as it believes fit or, as provided for in the subsection already, the adjoining owner may recover such costs and expenses or compensation as a simple contract debt in a court. The possibility no longer exists for the building owner to offer compensation in lieu, instead of making good the damage. That was written into the legislation before but now it has been changed. While the Minister has dealt with our issue, something which had previously been written into the legislation has now been taken out. Perhaps it does not matter. Perhaps it is implicit that the building owner could offer compensation.

I thank the Deputy for her comments about my accepting her argument. The purpose of this amendment is to be as simple as possible so that everyone has a fair crack of the whip. Building owners have obligations to comply with the statutory provisions and where they cannot do this without interfering with what is termed the party structure, they must then make good the damage, pay costs and reasonable compensation. If they fail to do so then this is catered for in the legislation. There is provision whereby the occupier or affected person can proceed with the works and, in effect, go after the builder for the costs.

This tends to be a source of much complaint among neighbours. It is an area of the law that is somewhat unclear, so we are trying to introduce some clarity, while not making it too complicated.

It is important that the issue I was raising to the effect that the adjoining owner should be able to look to the court for the building owner to undo the damage, has been dealt with by the Minister. I am happy enough with that, so I intend to withdraw amendment No. 18.

Unless I am mistaken I do not believe the Minister has dealt with the issue raised by amendment No. 19 in his amendment, whereby the building owner may get access to the adjoining owner's land. When we were discussing that at the Dáil select committee, the Minister accepted I had a point, namely, that it was very important the building owner should be able to have access to the neighbour's lands. I wonder why the Minister had not dealt with that issue in his amendment.

There is provision in the legislation for a building owner to get what is called a works order, under section 45, in order to enter land if this is not being allowed by the adjoining owner. As regards this, we are creating a new jurisdiction. Heretofore, a jurisdiction was not specified. The jurisdiction is the District Court, and this makes it simpler for people to litigate, in effect, about contentious issues.

I accept what the Minister is saying and I withdraw amendment No. 19. On another point, there is still the issue of trying to get people to mediate such issues. The best place to deal with these issues is not necessarily in the courts. I hope that down the line, the Minister will look at the whole area of alternative dispute resolution for issues such as this.

Amendment agreed to.
Amendments Nos. 18 and 19 not moved.

I move amendment No. 20:

In page 40, between lines 10 and 11, to insert the following:

"48.—Where a person complains that trees or hedges grown or maintained by a neighbouring owner are of such a height as to constitute an unreasonable interference with any easement enjoyed by the complaining owner, or unreasonably interfere with light whether or not an easement exists in that regard, the person may apply to the court which may make such order, including an order directing the neighbouring owner to remove or reduce the height of any trees or hedges.".

This amendment was also tabled on Committee Stage and, as I recall, I raised the issue in the Seanad. We had a good discussion on this at the Dáil select committee, about leylandii hedges, and what a big issue that is for people, because they are so fast-growing, especially if neighbours are not happy about it. This is not dealt with by legislation, although it is an issue that often comes up regarding the issue of public works. It is not solely concerned with leylandii hedges. Other types of hedges, trees and so on are often the reasons why public representatives are contacted by residents who may be distressed because of neighbours' vegetation growing into their property. It is overgrown to such an extent that it affects the resident's enjoyment of his or her own property. Very often the type of people who contact one about this issue are older people who feel they cannot take on their neighbours themselves. As public representatives there is very little we can do on their behalf because it is a civil matter.

There is legislation in the UK to deal with this issue, whereby an order can be issued asking somebody to cut their hedges and if it is not obeyed the people concerned can be fined up to £1,000 and a further £50 for every day they defy a court order. This is covered in the recently published diaries of Mr. Chris Mullin, MP. He was the Minister of State who introduced this legislation in the UK. In his diaries he talks about how he quickly grasped that, being the lowest form of life in such an enormous Department, the Department of the Environment, Transport and the Regions, he was unlikely to have much influence. He therefore decided to concentrate on a couple of issues, and this is one of them. He talked about how leylandii hedges had become the scourge of middle England and he set out to bring in this legislation.

This is a serious issue and it would be a positive thing to bring in this legislation because it would send the signal to people who allow their gardens to get out of hand to be more considerate of their neighbours. That is what this legislation would be about. If matters got really bad people would have recourse to the courts. Mr. Mullin talked about how the fast-growing leylandii tree had become a "weapon of war" and neighbours who for years had lived peacefully alongside each other suddenly found themselves locked in mortal combat.

The Minister felt strongly about this on Committee Stage and there is much he can do as Minister for Justice, Equality and Law Reform, much more than Mr. Mullin could achieve. He might consider doing something about this issue and possibly supporting the Labour Party amendment or coming up with an alternative amendment.

I congratulate Deputy Tuffy on this amendment, which typifies the sort of problems we come across as public representatives. It is somewhat similar to noise pollution where people are pestered by a bad neighbour. Very often one finds this in a housing estate where somebody does not mind their garden but has these large trees that interfere and it causes untold hassle. As Deputy Tuffy said, older people are often the butt end of all this.

One of the great innovations in the Minister's Department over the past number of years was the establishment of the Small Claims Court. The Small Claims Court could be used in such situations where somebody has easy access to a decision without having to go through enormous expense and hassle. I ask the Minister to consider extending the remit of the Small Claims Court to deal with such small matters which cause much trouble and hassle to the lives of ordinary people. Neighbours are falling out and residents' associations are getting involved and these matters could be solved very quickly by the Small Claims Court.

Even the registrar could be empowered to issue an instruction to somebody to take action; very often what is needed is for somebody to tell the person to do this within the next seven days, or else. That is the simple solution to the problem. In his reply could the Minister outline to me whether it is possible to use the Small Claims Court in such situations?

On Committee Stage I had substantial sympathy with what Deputy Tuffy is trying to address. I may have referred to the fact that when I was on the county council and we were reviewing the development plan I proposed that we would put in a condition that all future planning permissions would not allow trees to grow higher than 6 ft. because there was an exemption on the building of walls up to 6 ft. or whatever. I am not sure what it is today. I was unsuccessful because I was told we could not do that as it would interfere with people's rights on their properties. However there is some justification for examining this.

After Committee Stage we asked the Law Reform Commission drafting group, which is headed by Professor John Wylie, to examine this. It took the view that unreasonable interference with enjoyment of a property right caused by high trees on properties is a matter in any particular case for tort law and, more generally, for planning and environmental law. It stated it was unaware of any jurisdiction which regulated trees and hedges within the land law code, and that is what we are dealing with here. It was saying this is not the appropriate legislation.

The issue of removal of trees or hedges is a tort of nuisance so somebody can seek damages or an injunction in the courts. I thank Deputy Barrett for his acknowledgement of the Small Claims Court procedure but it is not the type of court that would be able to enforce the removal or cutting of hedges because it relates mainly to monetary issues. We are examining the issue of extending the court but more in the sense of monetary claims than anything else. After Committee Stage we contacted not only the drafting group of the Law Reform Commission but raised it with the Minister for the Environment, Heritage and Local Government, Deputy Gormley, drawing attention to the fact that this discussion had taken place on Committee State and suggesting there might be a possibility of dealing with it in planning or local government legislation.

Deputy Tuffy referred to the English experience. I would hazard a guess that they did not deal with the issue of trees in land law but in some local government legislation. While I have great sympathy with the effort on this, my advice, particularly from the Law Reform Commission and my officials, is that this land law code is not the legislation where we should try this. I strongly suggest we raise it in the context of planning or local government legislation the Minister for the Environment, Heritage and Local Government, Deputy Gormley will be bringing through. I will continue to discuss the issue with him as a matter that has arisen in the context of the examination of the Land Law and Conveyancing Bill.

When this was brought forward in the UK it was added onto a Bill on anti-social behaviour. It is unfair to expect people to wade through tort law to solve this problem and consider taking an injunction. That is way above the capacities of most people; they just want to get on with living their lives. The UK solution was very simple. One can apply for an order, the judge can make a decision and if the people do not comply with the order a fine can be issued. We are talking about the little people. The people who experience neighbours who will not reason or mediate with them on this are likely to be quiet and vulnerable while the others are stubborn and inconsiderate.

If it is an anti-social matter in respect of which people have recourse to court it would not be appropriate for the Minister for the Environment, Heritage and Local Government to deal with this, but it would be appropriate to the remit of the Minister for Justice, Equality and Law Reform. It is the little things like this that matter.

We are here as the public representatives of the people. There is all this talk about legislation as if it is some high-minded thing we do. We are elected by the people and as public representatives are in touch with them. They tell us their stories in order that we can go and do something about the matter by way of legislation. Why does the Minister not introduce a Bill dealing solely with this issue, given that he feels strongly about it, as we all do? It is a matter that is raised with most public representatives. Rather than saying he will refer it to the Minister for the Environment, Heritage and Local Government or that we will discuss it, this issue can and should be solved. It is the kind of measure that would restore the faith of the people who elect us and show them that legislation is about the little things that matter and is relevant to their daily lives and the problems they face.

The Minister will be familiar with trees from previous expeditions he undertook in London and north County Dublin regarding his former colleague, the former Deputy, Ray Burke. He should talk to the Minister for the Environment, Heritage and Local Government, Deputy Gormley, about this issue. It is a real issue in the context of a citizen not having an immediate right of redress in circumstances that can be regarded as causing a significant nuisance. Seeking a right of redress in the courts is lengthy, off-putting and expensive and should be simplified. We did it in the case of noise to good effect where a simple application to the District Court can give rise to an order being made to cut trees or hedges.

There is another difficulty I ask the Minister to address in his departmental deliberations with the Minister for the Environment, Heritage and Local Government, Deputy Gormley. In some new housing estates green areas are reserved in ownership that can best be regarded as doubtful. Developers complete estates and plant trees in areas where ownership of the land is not easily identifiable. Those trees grow and flourish and can overhang house owners' land giving rise to restrictions of light as well as vision and can be most unsightly. These are estates without a formal legal entity or management company. Residents of the estate may not have the nuisance visited upon them and as such, have no interest in the matter, nor do they have ownership or legal title to the land in question.

It is a consequence of planning law where oftentimes developers are mandated to engage in a process of planting trees without any follow up once the trees are planted. Developers may have long since left the estate and the local authority has taken over responsibility for services, roads, footpaths, pipes and lighting, but not the open spaces. It pleases the authority to have no responsibility because it will only claim it does not have the resources to engage in the appropriate maintenance or landscaping. It is an issue to which there is no answer and I am pleased that Deputy Tuffy has returned to it again. I know she has raised it before.

As public representatives and legislators, it is important to find an appropriate form of redress which, as Deputy Barrett said, is not expensive or lengthy. It needs to be such to give people confidence in a system of governance that will allow them to seek redress for what can be a very frustrating problem. To many it might seem a very straightforward and simple issue in the context of other matters to which we will advert. However, it is one that can be frustrating for some individuals in that they do not have a straightforward remedy. The option of issuing proceedings in the Circuit Court is not one that is taken lightly. It is also not immediately advisable because of the length of time, expense and risk involved.

I appreciate the interest the Minister has shown in the matter in his reply to Deputy Tuffy and others. It is a very serious issue and needs to be addressed either through this Bill or other urgent legislation. Last Friday a lorry driver drew my attention to the fact that he needed to go down a narrow country road to get to his house. He regularly loses the side mirrors on his lorry on trees along one particular stretch of the road. All other landowners along the road cut their hedges to allow considerable road clearance for lorries, etc. However, one individual who does not live in the jurisdiction completely ignores any pressure exerted by the county council. I was advised that if this took place across the Border, he would need to adhere to the law. I was interested to hear what Deputy Tuffy said. In such circumstances we need to have some legal redress. The same thing happens on Carn Lane outside Clones, a walking area in which one of the landowners refuses to maintain his hedges. I hope we can find a mechanism to address the matter through this or a dedicated Bill. Bills are taken through the House on which the debate is guillotined sufficiently frequently that there is no reason it cannot be done.

Deputy Crawford has more or less confirmed the view I have expressed that this is not the Bill in which we should be dealing with this issue which is really one for local government. People on private property are entitled to cut overhanging trees. That is not the issue in this instance which addresses the height of trees. The issue to which Deputy Crawford refers appears, in the first instance, to be one for local authorities which have the responsibility to maintain the highways and byways to ensure they are clear. Regardless of what legislation contains such a provision, in order to enforce a right an individual would need to take proceedings. It is a matter of including it in the correct legislation. I would hazard a guess that it is an environmental or planning issue. I will undertake to raise the matter with the Minister, Deputy Gormley, in order to include it in some impending legislation. However, I suggest the Deputies raise it directly with the Minister for the Environment, Heritage and Local Government. It is not one that would sit easily in a Bill dealing with land law and rights. It is one regarding the regulation of planning and environmental aspects, not for civil law. Deputy Tuffy mentioned that the British Government had tacked it on to legislation dealing with anti-social behaviour which is dealt with here in criminal law legislation. Mentioning the height of trees in criminal law legislation would not sit easily either. It is a matter that should be taken up with the Minister, Deputy Gormley, as I have done.

I am not sure it was criminal law because if it was anti-social behaviour——

In Ireland ASBOs are dealt with in criminal law legislation.

Here, as in the United Kingdom, anything to do with anti-social behaviour is covered by civil law. If someone did not comply with an order, it became a criminal offence, but the Minister for Justice, Equality and Law Reform dealt with it.

We would have to define domestic disputes and literally everything, including the kitchen sink, as anti-social behaviour were we to include the height of trees. I respectfully suggest it would be better to define anti-social behaviour in terms of criminal activity.

I am not necessarily suggesting it is anti-social behaviour although there is an element of that involved. The amendment mentions the height of trees in terms of their interference with easement, the enjoyment of property and interference with light. In that sense, it does fit into this legislation. However, Deputy Ahern is Minister for Justice, Equality and Law Reform and this relates to giving people a right to apply to court to solve a particular issue. Issues such as mediation and so on come within the Minister's remit. I would not like if this were thrown into a black hole or passed over to the Minister for the Environment, Heritage and Local Government, who is concentrating on issues such as climate change.

Deputy Barrett made an important point in regard to the small claims court. Many of my constituents have raised with me issues of nuisance noise. One can make an application in the District Court in respect of noise regulations. People are reluctant to go to the District Court or even to a solicitor, who must draft the papers for the District Court, to deal with noise issues that arise with their neighbours.

As far as I am aware, the Minister for the Environment, Heritage and Local Government, Deputy Gormley, is reviewing the noise regulations. Perhaps this issue should be included in that review. It is an issue of concern throughout the country. Perhaps we could provide that a District Court judge in the Small Claims Court setting could deal with these issues. This might go a long way towards addressing the matter.

The Minister is introducing legislation, which I support, on gangs and the nuisance they cause to ordinary members of society. These are irresponsible people who annoy ordinary decent people who want to live their lives without any hassle. There comes a point where a person must be told by another that he or she has, say, seven days to deal with an issue or will be fined. I do not believe the Minister for the Environment, Heritage and Local Government is in a position to deal with these types of issues.

Call it what one may, the Small Claims Court setting is an ideal venue for dealing with such matters. Members may be aware of the television programme "Judge Judy" which deals with disputes in ten minutes. The judge, having listened to the complaint, makes a judgment on the matter within ten minutes. Many issues arising in society today require to be addressed in that manner. I believe the Department of Justice, Equality and Law Reform is the ideal Department to deal with these matters.

The Minister is introducing legislation to deal with membership of a criminal gang. It is all very well for people to speak about civil rights but what about the rights of ordinary decent people who want to walk the streets and live their lives peacefully? There are times when simple matters require to be dealt with quickly. I urge the Minister to consider this matter. This provision can be extended not alone to include hedges but other matters.

Just because I am Minister for Justice, Equality and Law Reform does not mean everything that is enforceable in court must come from my Department. Other Ministers bring forward legislation relevant to their Departments which people are obliged to go to court to enforce. That is the nature of the democracy in which we live. It is unfair to lump everything into the justice area and say that we must deal with it. I accept all of these issues are irksome and are a nuisance. However, that is what they are. There is a law of tort on nuisance.

Deputy Byrne stated that the Minister for the Environment, Heritage and Local Government, Deputy Gormley, is reviewing the noise pollution legislation. It will deal with issues of nuisance. I respectfully suggest that it is not in the criminal law but in civil law relating to property rights that this issue should be dealt with in terms of proper planning and development. A number of other issues arise such as whether one should be cutting down certain types of trees and so on. The expertise in that respect is not in the Department of Justice, Equality and Law Reform but the Department of the Environment, Heritage and Local Government.

I call Deputy Tuffy who has two minutes to reply. Debate on this amendment has wandered considerably.

I will make a final point.

Will the Acting Chairman not do a Judge Judy on it?

The Deputy is trying to take over Deputy Rabbitte's title of Dáil jester.

Is the Minister speaking about me?

No, Deputy Flanagan, who is making a poor effort at it.

Chris Mullin, MP came up with a simple proposal to deal with a simple problem. However, it took him a few years to resolve. The Minister is displaying a type of bureaucratic and complicated attitude. This is not a planning issue. What we are speaking about is a dispute between neighbours who should be able to have the matter dealt with in court if necessary. It is a simple matter. I accept the Minister may not be able to deal with it in this legislation but I do not understand why he believes it should be a matter for the Minister for the Environment, Heritage and Local Government.

I take my advice from the Law Reform Commission which is headed up by Professor Wiley who is the expert in this area and who states this is not an issue for my Department.

He was not elected by the people.

It is a tort of nuisance.

Amendment, by leave, withdrawn.
Bill recommitted in respect of amendments Nos. 21 and 22.

I move amendment No. 21:

In page 50, line 35, to delete "subsections (5) to (7)” and substitute “section 68”.

These amendments arise from comments made by the conveyancing committee of the Law Society to the effect that subsections (5) to (7) of section 67 were not sufficiently clear. The purpose of the amendments is to hive off subsections (5) to (7) of section 67 into a separate section and to improve its presentation. The changes are essentially drafting amendments and do not change any substance.

I accept what the Minister said that these amendments are being made on the basis of a written submission made by the conveyancing committee of the Law Society which engages in the practice of these matters. I welcome what the Minister has done in compliance with the recommendation.

Amendment agreed to.

I move amendment No. 22:

In page 50, to delete lines 41 to 46 and in page 51, to delete lines 1 to 7 and substitute the following:

"68.—(1) An interest—

(a) to which a person was entitled, or

(b) acquired by a person, before the commencement of this Chapter in consequence of the failure to use words of limitation in a conveyance executed before that commencement or the application of the Rule in Shelley’s Case is extinguished unless the person claiming to be entitled to the interest or to have acquired it-

(i) applies to the court, within 12 years from the commencement of this Chapter, for an order under this section, and

(ii) registers any order made under this section in accordance withsubsection (3).

(2) On such an application the court may—

(a) make an order declaring that the applicant is entitled to the interest or has acquired it,

(b) refuse to make such an order if it is satisfied that no substantial injustice will be done to any party, or

(c) in lieu of a declaration in favour of the applicant, order payment by another party of such compensation to the applicant as the court thinks appropriate.

(3) An order under this section shall be registered in the Registry of Deeds or Land Registry, as appropriate.".

Amendment agreed to.
Bill reported with amendments.

I move amendment No. 23:

In page 62, to delete lines 22 to 44 and in page 63, to delete lines 1 to 7 and substitute the following:

"93.—(1) This section applies to any action brought by a mortgagor for—

(a) redemption, or

(b) sale, or

(c) the raising and payment in any manner of the mortgage debt, or

(d) any combination of these in the alternative.

(2) In any action to which this section applies the court may, if it thinks fit, direct a sale of the mortgaged property on such terms as it thinks fit.

(3) Without prejudice to the generality of the court's discretion undersubsection (2), it may—

(a) allow any time for redemption or payment of the mortgage debt,

(b) require lodgment in court of a sum to meet the expenses of a sale and to secure a performance of its terms,

(c) give directions as to costs and require the giving of security for costs,

(d) direct a sale without previously determining priorities of incumbrances,

(e) give the conduct of the sale to a particular party,

(f) make a vesting order conveying the mortgaged property to a purchaser or appoint a person to make such a conveyance.

(4) Except in the case of a housing loan mortgage, this section takes effect subject to the terms of the mortgage.".

I mentioned on Committee Stage that I would bring forward a revised text to the section following concerns expressed to my Department that its original scope was too broad and might have unintended consequences for immediate legitimate business purposes. Deputy Flanagan also raised this issue.

I mentioned also on Committee Stage that the intention behind this section is to put into statutory form a right which has existed for some time, namely, the right of a borrower who may be facing financial difficulty to seek an order to sell the mortgaged property in order to reduce his or her debts or to prevent them from mounting further. The text has been redrafted to make this clearer. In addition, a subsection (4) has been added which confines the application of the section to house loan mortgages. In other cases, the terms of the mortgage will apply. These changes address the concerns raised in regard to the original text of the section.

I received correspondence from the conveyancing committee of the Law Society which states it has a concern that no amendment was proposed to section 91 and that this section will not protect a borrower's family home or housing loan mortgage if in the form of an all sums due mortgage. They state how such a form of mortgage can be used as security for other borrowings from the lender, including overdraft, and any other sums requested by the borrower such as credit card debts. The Law Society is saying that lenders should be debarred from using all sums due on mortgages for housing loans. This is related to the amendment so I would like to hear from the Minister on what the conveyancing committee has to say.

I have not seen its conclusions in this respect. We did not propose to amend section 91 because it speaks for itself but I have not seen the proposals.

Amendment agreed to.

I move amendment No. 24:

In page 64, line 4, to delete "otherwise" and substitute "in relation to any other mortgage".

This is a drafting amendment.

Amendment agreed to.

Amendment No. 26 is an alternative to amendment No. 25 and amendment No. 30 is related to it so they will be discussed together.

I move amendment No. 25:

In page 64, line 10, after "taking" to insert "not more than 7 days prior to such taking".

Amendments Nos. 25 and 30 address a concern raised on Committee Stage. In cases of default, sections 96 and 99 require a lending institution to obtain a court order before taking possession of or selling the mortgaged property unless the borrower has already given consent to repossession. A fear was expressed on Committee Stage that the consent provision might be circumvented by requiring the borrower to give such consent at the outset in the mortgage deed. To prevent any such circumvention, I propose to include a provision requiring that any consent be given within a seven day period prior to the taking of possession or a seven day period prior to exercise of the power of sale, as the case may be.

I have tabled an amendment that would have a similar effect. I raised this issue some years ago in the Seanad and again on Committee Stage of the Bill. I argued the point on Committee Stage and I am glad the Minister has accepted my point and has inserted an amendment to deal with the issue that I raise in amendment No. 26. This shows how helpful it is to debate amendments. We put down the amendment a number of times and the Minister has now taken it on board, demonstrating that the Opposition does make a difference to legislation, contrary to perception.

Amendment agreed to.
Amendment No. 26 not moved.
Bill recommitted in respect of amendments Nos. 27 and 27a .

I move amendment No. 27:

In page 64, to delete lines 44 and 45.

This amendment will delete section 97(5). In so far as this subsection suggests it may be possible to apply to a court for an order for sale of a house which is subject to a house loan mortgage other than by applying for an order under section 99, it is misleading. An application for a court order to exercise the power of sale must be made under section 99 by the lending institution to exercise the power of sale in such cases. To avoid any doubt on the point, I have decided to drop subsection (5) entirely.

Amendment agreed to.

I move amendment No. 27a:

In page 65, line 2, to delete "and notwithstanding any stipulation to the contrary".

This is consequential on changes already made to section 95 on Committee Stage. Section 95(3), as amended on Committee Stage, provides that the mandatory provisions in Chapter 3 of Part 9 relating to the powers and rights of lending institutions apply to a house loan mortgage but in other cases, i.e. commercial mortgages, the terms of the mortgage deed apply.

The consequential amendment to section 98 means that where the lending institution has taken possession of a dwelling under sections 96 or 97, it must take steps within a reasonable time either to sell the property under section 99 or to let it under section 111. It cannot hold on to the property indefinitely. In cases other than house loan mortgages, the mortgagee may act in accordance with the terms of the deed of mortgage.

Amendment agreed to.
Bill reported with amendments.

I move amendment No. 28:

In page 65, line 14, to delete "101" and substitute "100".

This is a drafting amendment to correct a cross-reference to another section.

Amendment agreed to.

Amendments Nos. 29 and 32 are cognate and will be taken together.

I move amendment No. 29:

In page 65, lines 18 and 19, to delete "mortgagor, or on one of 2 or more mortgagors," and substitute "mortgagor".

On Committee Stage, Deputy Charles Flanagan queried the continued use of the term "one of 2 or more mortgagors" in sections 99 and 107. In practice, these words mean that if a mortgage is in the name of more than one person, the lending institution is required to serve notice on only one of them if the repayments are in arrears and that it is contemplating exercise of powers of sale or the appointment of a receiver. Having reflected on the point made by Deputy Flanagan proposing to drop these words, the result will be that the lending institution will be required to serve notice on all those mentioned in the mortgage when it is serving notice under sections 99 and 107.

I thank the Minister for making that change.

Amendment agreed to.

I move amendment No. 30:

In page 65, line 36, after "exercise" to insert "not more than 7 days prior to such exercise".

Amendment agreed to.

Amendments Nos. 31 and 41 are related and will be discussed together.

I move amendment No. 31:

In page 66, between lines 28 and 29, to insert the following:

"(4) Subject tosubsection (5), an application under section 96(2) or section 99(3) may be made to the High Court.

(5) Where an application undersection 96(2) or section 99(3) concerns property which is subject to a housing loan mortgage the Circuit Court shall have exclusive jurisdiction to deal with the application and the application shall not be made to the High Court.

(6) The jurisdiction of the Circuit Court to hear and determine applications undersections 96(2) and 99(3) concerning property which is subject to a housing loan mortgage shall be exercised by the judge of the circuit where the property or any part of it is situated.”.

This is a new subsection on court jurisdiction. This was brought to my attention by a family member some time ago. Since then, when I saw what was happening with house repossessions, I asked the Department examine this.

Since the issue was raised a couple of months ago, it became clear that there are some lending agencies that are bypassing the Circuit Court. Some constituents who got into trouble with lending institutions and found themselves in arrears were taken to the High Court, an alien environment for most ordinary people. The newspapers have carried reports on substantial numbers of people being taken to the High Court for repossessions, particularly by sub-prime lenders. There is an agreement among most of the major lending institutions on repossessions and that is why the majority of substantial home loan lenders do not have many repossessions despite the adverse publicity about banks. The major banks and lenders do not go for repossessions unless they absolutely must.

It has been the practice, however, for sub-prime lenders generally, even when people default on very small sums, to immediately run to the courts. The question must be asked why and how these lenders were allowed to give such loans to people who could not secure them from the major institutions. The borrowers are now being taken to the High Court. Having spoken to some of my constituents, receiving a High Court order is so unusual that some people tended to ignore the issue and then found themselves subject to a repossession order.

I asked my officials to examine this and we discussed it with the Attorney General. We are now introducing this proposal which will insert new subsections into section 100 that will make it obligatory for lending institutions to commence repossession proceedings in the case of house loan mortgages in the Circuit Court rather than in the High Court. Proceedings for repossession other than those for a house loan may continue to be taken in the High Court or the Circuit Court. The allegation was made on the Order of Business this morning that we were guillotining this legislation, although we probably will not end up guillotining it because we will finish it before the end of business tonight. The reason I wanted this Bill is that if we can get it passed and implement it before the summer, all repossession orders on household loans that take place subsequent to its passing will have to be taken in the Circuit Court and not in the High Court. That is only right and proper.

When I raised this originally it was said to me that if the amount involved was within the Circuit Court jurisdiction but the order is taken in the High Court, the lending company and its solicitors can recoup only the costs of a Circuit Court order. However, that is still not good enough because many of the repossession orders taken in the Circuit Court are taken, in effect, in the county registrar's court, and the county registrar has more discretion than, for example, the Master of the High Court. The Master of the High Court has mentioned on a number of occasions that something should be done about this, but I was already doing something about it. It is quite a number of months ago that I asked my officials to see if we could find a Bill in which we could include this and I am glad we have been able to do that here. I realise I am pushing on an open door with colleagues around the House.

This provision will make life somewhat easier for those people who are subject to repossessions in that they will be able to go to courts in their own localities where there will perhaps be more discretion with regard to such orders. I do not mean this as a slur on the High Court, but whereas there is little or no discretion in the High Court with regard to such orders — once it is established that money is owing — there is a certain discretion within the jurisdiction of the Circuit Court, particularly in the context of such applications' going before the county registrar's court, as it is known.

I strongly recommend this amendment to the House and I hope it will make life a little easier for those who are subject to repossession orders and ensure there is more understanding. It is wrong that some lending agencies — not the major ones — have taken people to the High Court even with relatively small amounts of money owing and a relatively short period into the mortgage. It is unfair to drag people — particularly those who live outside Dublin — up to the High Court to enforce repossession orders when it could be done in the Circuit Court, within the person's own locality and where there is a little more discretion. For the people involved it may be their first time in court and at least they would be in their own locality. Because of the types of costs and the discretion available in the Circuit Court, it would make much more sense to use this court. Once we pass this legislation all lenders will have to commence applications for repossession on house loans in the Circuit Court and not in the High Court.

I welcome what the Minister is doing here, which is important and practical. I am not sure, however, whether the Government appreciates the extent of the problem. More than 700 new repossession cases were initiated in the High Court in the nine months to March of this year, compared to less than 350 during the same period last year, according to the Courts Service. A breakdown of these figures shows that 207 repossession cases were taken in the High Court in the first three months of this year compared to a mere 95 in the first quarter of 2008. There is a real problem here for Government. A voluntary code of practice has been entered into by some of the financial institutions, which needs to be constantly monitored by Government.

The Minister mentioned that applications are being brought to the High Court for repossessions in cases in which the sum in arrears is quite small. I recently saw a case in which GE Money took an application for possession of a house in the High Court when the sum outstanding was a little over €4,000. This is a real problem being faced by people in financial difficulties. As the Minister said, these people are at the mercy of a High Court judge and in some cases there is no appearance because they are feeling hopeless and desperate. This is a difficulty.

I agree fully with what the Minister said about the difficulty with people responding to notices from the courts. They are served with notice to appear in the High Court in Dublin, usually in the following eight or ten days. One of the reasons put forward for not taking such actions in the local Circuit Court was that people were reported to have said they did not want to attend a court where they would be readily identified, where there may have been neighbours sitting near them or watching them going in or out, and where the local papers might carry reports of the story, which would not necessarily happen in the High Court. However, on balance, what the Minister said is correct. It is important that we as legislators are prepared for what will be a very difficult year in terms of repossessions.

I wonder about the mortgage code that has been drafted and agreed between the parties and which gives guidance to lenders, urging them to deal sympathetically with borrowers in times of difficulty and facilitate escape routes if they wish to short-circuit the code, as they will. However, there is an issue with regard to responsibility of lenders or building societies.

I was informed of a particular case in my constituency recently. I am sure every Member of the House can recount such details but it is important that we appreciate the extent of the crazy lending practices that went on. A man came to my clinic with a notice for repossession of what was originally a council house belonging to his mother which had been left to him on her death. Like many during the course of the boom years, this man was encouraged by the former Minister for Finance, Deputy McCreevy, and others to get a top-up mortgage, although it was not in fact a top-up because he did not have one before.

This man had no accounts and clearly did not have any capacity to repay the mortgage because he was not working. He got a mortgage of €120,000 from a building society but fell into arrears, and the building society took an action for repossession after a mere six months. It transpired that the man had never had a PPS number. How that could happen I do not know. I inquired of the lender how a sum of €120,000 could have been advanced to a person who did not have a PPS number, but the correspondence was passed from Billy to Jack. They were not interested in the manner of negotiation of the loan but rather in how the money was to be repaid. This man faced his ruin. The money was spent. His favourite football team was Liverpool and he did something he had never done before, visiting Anfield six or seven times in the course of a season, courtesy of the building society. Now his home which was originally a local authority property and has been in the possession of his family for generations will be taken from him and sold on the open market at a price substantially less than the amount borrowed. The building society does not care that this man will be on the street. It is absolutely essential that proper codes are in place to ensure citizens are protected from such reckless lending on the part of building societies.

I do not know whether the Minister intends to have the legislation in force by mid-July. If so, I do not intend to delay the House beyond what it is necessary to say. What the Minister proposes will reduce the element of cost. It has been common practice for banks to take a case to the High Court, issue a summons, follow up with the paper work, get the order for possession and then tack thousands of euro in court costs onto the sum of mortgage arrears, thus ensuring in many cases that people who provided their family home as security would not be in a position to pay. Several High Court judges have expressed their dismay in recent times at cases in which borrowers do not make an appearance. By allowing such cases to be heard in the Circuit Court, there may be a higher rate of attendance whether by those against whom the order is made or by their representatives.

The manner in which financial institutions have dealt with loan applications has given rise to a process that is now inevitable, with more than 700 new cases currently before the courts and hundreds of High Court actions ready to be initiated. The prospect that they will now be taken in the Circuit Court in the autumn session will probably not ease the pain to any great extent. A warrant for repossession of a person's home is a most serious engagement. It is important that the people against whom warrants are outstanding can be dealt with in a way that is absolutely sympathetic and that the repossession of a person's home shall in all cases be the absolute last resort.

I support the points made by Deputy Flanagan. I agree with the Minister that the proposed amendment has a good deal of merit. However, it is also a recognition by the Government that there will be many more of these types of cases, with growing numbers of people facing repossession of their homes. This is one of the most serious consequences of the rise in unemployment numbers, with an additional 11,000 people signing on in June. It is bad enough to lose one's job, but it is absolutely devastating to lose one's home. In recent years many substantial mortgages were taken out on the basis of two incomes. I spoke to many couples in the course of the local elections campaign where one partner had recently become unemployed and the other may have been on a reduced income. A person came to my clinic recently who was making mortgage repayments of some €800 a month on a property purchased under the affordable housing scheme. This person is now unemployed and although he is managing to cope for now, his long-term prospects are not hopeful.

The Minister has observed that some people in difficulties deal with the situation by going into denial rather than facing up to what seems like a hopeless predicament. It is important that the Government offers such people options. For example, a scheme should be introduced whereby the Government or local authority can step in and take a share of a property that is about to be repossessed by a financial institution. People who have a home loan that they can no longer afford to repay because they or their partner have become unemployed should be able to convert their ownership into some form of shared ownership. This need not necessarily correspond to the existing shared ownership scheme, but it would be something along these lines. In the United Kingdom, for instance, such a scheme has been introduced to allow people to convert their housing loan. It is important that we introduce something similar and that it is well publicised. People must have options in order that they do not simply give up when faced with pressure from lending institutions.

What are the statistics for those who are simply letting their lender take back their property without the matter being brought to court? Many of the home owners facing difficulties have been making their mortgage repayments for years. It is because of the financial downturn that they are now in a situation where their homes may potentially be repossessed. As they worked hard during the years to meet their repayments, they were encouraged and facilitated by Government policy. For all that effort to be wiped out and their homes taken from them is unacceptable. As I said, people must be given some hope. The Minister's proposal is worthwhile, but it must go further. The Government must afford people options in order that they can be sure, in so far as possible, that their homes will not be repossessed and that they will be allowed to get through their current difficulties and work towards obtaining new employment in the future. I would appreciate the Minister's views on this.

I am pleased the Minister is dealing with this issue. It is one I have raised with him on several occasions. I understand he was initially told it could not be done, an opinion also expressed to me by another Minister. I thank the Minister for pursuing it with such vigour. I was shocked on first discovering what was going on, when a person who came to my clinic told me that High Court proceedings had been initiated in respect of that person's smaller than average house as a consequence of mortgage arrears of some €4,000. It is outrageous that such persons should be dragged to the High Court.

My views on the prospect of these cases being heard in the Circuit Court are shared by FLAC, with which I have discussed the proposals. The issue has also been discussed by the Joint Committee on Social and Family Affairs. Compassion must be shown to people in difficulties. In my experience, proceedings in the Circuit Court move at a much slower pace than those in the High Court. The message must go out from the Oireachtas in enacting this legislation that it will help to ensure people have time to get their affairs in order. The Circuit Court sits quite infrequently — perhaps more frequently in Dublin and Cork- but in my own and the Minister's constituency the registrar's court sits perhaps once a month. We must emphasise that we are trying to slow the process down. In addition, as the Minister said, registrars in the Circuit Court must show compassion to people who are in court on foot of a repossession order.

We can go further in seeking to assist persons in these difficulties. Family homes should not be subject to repossession other than in absolutely extreme circumstances. Increasing numbers are subject to such orders. In my experience of these issues being dealt with in local courts, civil court proceedings are generally not covered by local media. In the course of my previous job, I found that repossession cases in the registrar's court could be delayed almost indefinitely. Such a delay may be exactly what people need as they seek new employment. I thank the Minister for bringing forward this proposal. I urge him, as soon as this legislation is passed, to commence the section as soon as possible. I am not sure whether existing applications must be taken in the High Court rather the Circuit Court. If that is so, there may be a rush of applications in the coming days and weeks. For this reason, it is very important the Minister commence the section as soon as possible.

Debate adjourned.