Town Tenants Bill, 1930—Committee Stage (Resumed).
Section 19 agreed to.
SECTION 20.
Amendment 25 not moved.
I beg to move amendment 26:
Section 20. To add at the end of the section a new sub-section as follows:—
"(3) References in this section to the termination of a tenancy shall be construed as referring—
(a) in the case of a tenancy terminated by ejectment for non-payment of rent, to the date on which the period for redemption under Section 70 of the Landlord and Tenant (Ireland) Act, 1860, would have expired;
(b) in the case of a tenancy terminated on account of a breach by such tenant of a condition of such tenancy, to the date on which the landlord shall have resumed possession of the premises comprised in such tenancy."
This amendment requires rather elaborate explanation. If the Minister objects to it he will probably get the votes of members of the Seanad notwithstanding anything that I may say and irrespective of how explicit my explanation may be. In the marginal note to Section 20, Senators will see: "Restrictions on the right to new tenancy." The section sets out: "A tenant shall not. be entitled to a new tenancy... where his tenancy is terminated by ejectment for non-payment of rent, or his tenancy is terminated by ejectment, notice to quit or otherwise on account of a breach by such tenant of a condition of such tenancy." Senators may remember that, when this Bill came up on Second Reading, Senator Brown queried what would be the time of the termination of the tenancy. I suggested that the termination of a tenancy should be regarded as the point of time when the tenant was actually put out. Senators who remember the Land Acts and the agitation that was in existence through the country during the passage of these Acts will have an idea of what I mean. Before the Act of 1881 came into operation a good many landlords had, by means of notices to quit, terminated tenancies and thereby deprived the sitting tenants of the right to have a fair rent fixed. There was a long and bitter agitation on that subject and there were various amending Acts. Even before the Land Act of 1881—in the Land Act of 1860, for instance—a provision was made for the protection of a tenant on whom a notice to quit had been served.
The Minister has given no indication as to whether he means to accept my amendment. I say that the Minister comes here with a fixed mind; I do not say an unintelligent mind, but he has a mind not receptive to new ideas, particularly when they come from these benches. I have read the portions of Section 20 that are material, paragraphs (a) and (b). I will refer Senators to paragraph (a) of my amendment. I hope Senators will not think me wearisome if I bring them back to the Act of 1860 and the conditions immediately before that Act was adopted. Tenants were sometimes in arrear. Processes were issued against them, ejectment decrees were obtained against them. A decree on title terminated the tenancy and a decree in ejectment was also regarded as having the same effect. In order to help tenants Clause 70 was put in. This enabled the tenant within six months to redeem. He could redeem by paying the arrears of rent and the costs, putting the landlord in the same position as he occupied before. That was called the Deasy Act. Mr. Deasy was at that time Attorney-General. He was a Cork man.
Section 70 of the Act of 1860 made provision for the great hardships that had been taking place. Tenants were put out. Once they were put out they could not get back under the law as it stood before this new section was introduced. The new section provided that tenants should get six months to redeem. They were to be allowed six months after the sheriff had visited their houses and had put out their goods and chattels. Six months was the period allowed them in which to pay all the arrears and all the costs, and, having done so, they were let back on the old tenancy. That was the justice that obtained almost ninety years ago. I want to have that clause incorporated in this Landlord and Tenant Act; it is no longer a Town Tenants Act; it is a Landlord and Tenant Act now. I do not want to indulge in any florid eloquence on this subject. Before that clause was put into the Act of 1860 there was a tremendous torrent of eloquence in this country and it has been the subject of very frequent comment ever since, and the provision has been regarded as a very wise provision.
I will now refer Senators to paragraph (b) of my amendment. Senators will understand that the conditions of the tenancy may be varied. One of the conditions is the payment of rent. I have directed to that a special amendment allowing a man six months from the time he is put out to pay up everything and go back again. There are other conditions of tenancy. Let us suppose a tenancy is held by lease. There might be a condition prohibiting sub-letting. A condition prohibiting sub-letting would, if broken, render the lease void and would allow the landlord, in accordance with the covenants of the lease, to come in and take possession. Then there are conditions about repairs and about use in a certain way. Senators all know the innumerable conditions that are included by lawyers in leases. In the old days it used to be said that the numerous conditions were put in for the sake of scrivenry; the payment was so much a folio. We, being conservative by instinct and training, keep on the old forms to a very great extent. There are numbers of conditions in tenancies which, if broken, would render the tenancy void and would terminate it.
I wish to submit to the consideration of the House that in this Landlord and Tenant Act the termination of the tenancy which would preclude a person from getting a new tenancy, which would place restrictions on the right to a new tenancy and which would destroy a man's rights should, in the case of non-payment of rent, be in the same category as in the case of agricultural holdings or holdings coming under the Act of 1860 and in all other cases that the tenancy should not be deemed to have terminated for the purpose of depriving the tenant of his privileges until he is actually put out. I hope I have not been too long in my explanations of this amendment. I think the amendment will commend itself to the House. I am surprised at the silence of the Minister.
I had no desire to interrupt the Senator.
At the very beginning the Minister ought to have indicated whether he was prepared to accept this amendment. I hope he will not reject it. In any case, I ask the Seanad to vote for it.
I listened attentively to the remarks of Senator Comyn. The Senator was apparently annoyed at my silence, but I had no desire to interrupt him. While I listened very carefully to what he said, I have not been quite able to follow him, nor do I quite know what he is endeavouring to achieve by his amendment. If a tenant has not paid his rent the landlord brings an ejectment against him and he has six months in which to redeem. If he has not redeemed by that time he goes out. Senator Comyn says that he should have a right to a new tenancy. I do not think so. I think if a tenant has not paid his rent and has been put out as a result of not doing so he should not get a new tenancy. He always has got this period of six months in which to redeem and if he redeems in that period he does not require a new tenancy, because his old tenancy is carried on.
Similarly, if there is a breach of covenant by a tenant, if it is of a certain minor nature, the Court will relieve him against forfeiture and his tenancy will not be destroyed or disturbed. The existing tenancy goes on if he is relieved against forfeiture; but if he has been guilty of an important breach of the tenancy I do not see why he should get a new tenancy in order that he may carry on his breaches for the future. I cannot follow the Senator at all.
I am somewhat relieved by the Minister's statement and assurance that in the case of a minor breach of a covenant the tenant is protected automatically. I take that to be the law outside this Bill. But it requires a statement from a lawyer to give me that assurance, because, as a layman not understanding these landlord-and-tenant statutes, it seemed to me on reading this measure that something was required to protect a tenant against a breach of some trivial covenant in a lease. I have had occasion recently to read one or two leases. One—which I understand is typical of many—required that the tenant should pay certain premiums for fire insurance to a certain insurance company. A breach of that covenant would under this Bill, mean the forfeiture of tenancy. The Minister now says that if the court adjudges that to be a minor breach there will be no unnecessary forfeiture.
I am a little perturbed by the fact that tenants—particularly house tenants—would not be aware of this law regarding protection by the court, and, even if they were, it would require considerable expenditure to go to the court and get that protection from the court if it could be proved that it was a minor covenant. Would it not be possible to set out in this Bill, which the tenant will read, some evidence in precise terms of protection, without having to go to lawyers in order to be assured that there is such protection and without having to go to the court to get the protection confirmed? I would like to see some provision in the Bill which will give some kind of assurance to the tenant that he is not going to lose all his rights by a trivial breach such as overstaying by a day his payment of rent or for some of the smaller items in covenants and leases that are being signed almost by the score every day in Dublin. It would be a desirable thing if we could put in the section some evidence of the protection of which the Minister has assured us.
As far as I read this amendment it would not in any way achieve what Senator Johnson has in mind. This amendment merely says that the landlord is entitled to go into possession when he is actually entitled to go into possession. I do not see that it goes very much further than that. It points out that a tenancy shall be deemed to be terminated when the landlord has entered into possession, which he can do as soon as he gets his ejectment. Anything like relieving the tenant against forfeiture is not touched in this amendment at all. This amendment does not deal with anything like relieving against forfeiture.
Is it clear that the tenancy is not terminated when the breach is made or if there is a delay in ejectment, such as by removal on the part of the tenant? Are we to be quite satisfied that the tenancy is not terminated until the ejectment is actually completed?
The landlord will have to bring his ejectment in court and get his decree. If the court decides in his favour, a decree will be given. I will think over what Senator Johnson has said, and although there does not at the moment appear to me to be any need, I will see if there is any need of further strengthening the law against forfeiture. Between this and the Report Stage I will consider if anything of that nature is necessary.
I am quite willing that this amendment should be postponed in order to allow the Minister to consider it. I was edified indeed at the engaging simplicity of Senator Johnson. The Senator was quite satisfied with the statement of the Minister in answer to the statement which I made. If what a Senator says is not to be accepted, then there is no use at all in speaking in this House. I have put down an amendment to protect a tenant who is in arrears with his rent. The Minister says that that protection is not necessary. Now, that is contrary to the general opinion of the Bar. If it is part of the general law, as he suggests it is, what objection can there be to including it for greater precaution in this measure? Is the beauty of this Bill such that it would be spoiled by the slightest line? Here is the section for Senators to consider: "A tenant shall not be entitled to a new tenancy where his tenancy is terminated by ejectment for non-payment of rent.." That is clear and precise. Do you mean to give that tenant the privileges accorded under the Act of 1860 or not? A tenancy is terminated by ejectment at law when the decree is given. There was a privilege accorded to tenants of redeeming and having the tenancy restored.
Is not that still in force?
If that is still in force what construction will be put on this sub-section? My friend has been some little time away from the Bar now. I will ask even the non-legal gentlemen here what construction will be put on this: "his tenancy is terminated by ejectment for non-payment of rent"? Surely his tenancy is terminated by ejectment when he is ejected. That has nothing whatever to do with his right to a restoration of the tenancy by the payment of arrears and costs within six months after he is ejected.
Has not he got that right still?
The tenant, under the Act of 1860 has, but the tenant under this measure will not have.
My friend is labouring under a misapprehension with regard to the construction of his own Bill. I do claim from the Seanad the right that my opinion on a question of this kind is entitled to as much respect as the opinions of others. Let us go back again to the section. Suppose that I owe two years' rent, and that I am ejected—thrown out on the 1st of November. That tenancy of mine is terminated by ejectment for non-payment of rent. Even though I am put out of possession I have, under the Act of 1860, the right to pay all arrears of rent, and all costs, and then I have the right to go back to my old tenancy. In the case of land that would give me the right to have a fair rent fixed. I hope I have made that clear to the Minister. I am sure it is only a momentary lapse on his part that he did not see the distinction.
Is the Act of 1860 repealed?
No, but the Act of 1860 will not come in by reason of the construction of this section. Suppose a man is ejected for non-payment of rent and claims a new tenancy after he is ejected, here is the answer that will be given him: "Your tenancy is terminated by ejectment for non-payment of rent." There is no hint there, no suggestion, that you are entitled to be restored to your tenancy or that if you are restored to your tenancy you will come under the relief granted in this sub-section. If what the Minister says is correct, my amendment can do no harm. If what I say is correct, my amendment is absolutely necessary. That is the position. Personally, I have not the slightest feeling one way or the other. I have to make a complaint in regard to my friend Senator Johnson. He stands up and in the most simple and engaging way possible declares he is thoroughly satisfied with what the Minister has said. I feel he would not be satisfied if he understood all the implications of what the Minister has said. There are certain conditions in a lease. A lease is void sometimes because of a breach of a condition. If there is a condition broken the landlord can bring an ejectment at law which, in former times, was quite distinct from equity. There was no answer to that ejectment for condition broken. In process of time the Chancery Judge and the Courts of Equity, as representing the conscience of the King, arrogated to themselves a certain right to give what they call equitable relief. You can only get that equitable relief by going into court and appealing for it at great expense. It was there, I think, that Senator Johnson misunderstood the Minister, although the Minister's words were clear enough. You cannot get equitable relief unless you go to a court of equity and apply for it. Of course you can get relief in defence. You can plead an equitable defence.
That bears upon the second part of my amendment. Paragraph (b) sets forth: "his tenancy is terminated by ejectment, notice to quit, or otherwise on account of a breach by such tenant of a condition of such tenancy." That is how the section stands. I want to modify that section by my amendment. I want to say that the tenancy shall not be deemed to be determined unless the landlord shall have resumed possession of the premises comprised in the tenancy. Now a condition may be broken and the landlord may serve a civil bill ejectment. He may get a decree of ejectment, but he may have no intention whatever of disturbing the tenant. He may, after getting the decree of ejectment, continue to receive the rent. In nine cases out of ten that is done after getting the decree of ejectment, if the condition broken is not a serious condition. What I want to do is to legalise the practice that has been going on, to enable the tenant to get his privileges in respect of the existing tenancy unless the landlord, in addition to serving the civil bill and getting his ejectment, proceeds further and absolutely puts out the tenant.
Now, there is a precedent for that in the Land Acts. A tenancy was deemed not to have been broken, so as to prevent a tenant getting a fair rent fixed unless he was absolutely put out— unless the decree of ejectment was executed against him. That was before the year 1887. But in the year 1887 there was an eviction-made-easy statute introduced. The Act of 1887 enabled the landlord to eject a tenant by notice served through the post. That was the ingenious device of a gentleman named Mr. Holmes, then Attorney-General, who afterwards became a Lord Justice. Let that be recorded in his biography. The meaning of the Act of 1887 was this, that a notice was served on the tenant which had the effect of an ejectment to determine the tenancy and start the six months' period for redemption. Therefore, six months after the tenant got his notice under the Act of 1887—the eviction-made-easy Act—his tenancy was absolutely and irrevocably broken. He could not, after that, fix a fair rent.
Here you are dealing with town tenants. I have strong feelings in reference to agricultural land. In regard to town tenants, I do not think that it is exactly a subject which agitates me so deeply. Still, I like to see justice done, and I certainly like to see matters thoroughly explained before the legislative assembly. If the House is satisfied with the explanations which I have given, then I urge Senators to pass these two amendments. It does not affect me personally or our party very much, but still I think the passing of the two amendments would conduce to the perfection at least of legislation. I do not urge this as my own opinion. I do not urge this as an amendment evolved out of my own mind or drafted by myself, but I urge it as the opinion of men whose opinions I respect in matters of this kind, because their practice has been very much in the courts dealing with town tenants. Of course, the Minister said at the beginning that there is no meaning in the amendments we have brought forward. I submit that they are serious amendments, demanding consideration. I want to say this, that the Minister does not show a receptive mind or full respect for this Seanad.
I am not going to attempt, between the two lawyers who have spoken, an interpretation of the present law relating to houses occupied by tenants, but there is one point that I am curious to have information on. Paragraph (d) provides: "his tenancy is terminated by notice to quit given by his landlord for a good and sufficient reason," while paragraph (b) provides: "his tenancy is terminated by ejectment, notice to quit, or otherwise, on account of a breach by such tenant of a condition of such tenancy." In paragraph (b) there is no reference to "good and sufficient reasons." I do not know whether lawyers would say that a good and sufficient reason need not prevail when there is a breach otherwise than by notice to quit or ejectment. I gather from Senator Comyn that a tenancy is terminated legally when the notice to quit has been issued, but in the case of agricultural tenants, and possibly—I am not quite sure of this—of town tenants, there is a period of six months' grace. I want to know whether the tenancy is terminated when the landlord takes action and gives notice. Is the tenancy terminated at the end of the six months which was given by the landlord or, alternatively, at the end of the notice that is given by the tenant, even though the tenant remains on?
At what point is the tenancy terminated? If three months' notice is required, let us say, from the landlord, and the landlord says, "this provision in the lease that you must insure with the Royal Liver Insurance Company in Liverpool has not been complied with," then at the end of three months, presumably, the tenancy is terminated. If that is the correct reading of the position and of the law as it will be under this new section, it seems to me to be not just to the tenant and that there should be some further protection. If there is the six months' period of grace before this provision would become applicable, then I think there may not be much to be said, but unless we are very confident of that I think we ought to have some further consideration of the section.
As I am in charge of this amendment I take the liberty of replying to Senator Johnson. The Senator has asked a very pertinent question, a question which shows, if I may say so with great respect, that he has a penetrating legal mind. He has asked when the notice to quit is served is the tenancy then terminated? Again, he says, is it terminated at the expiration of the notice to quit? In England the law is this: That the service of the notice to quit terminates the tenancy. In Ireland the law has been that the tenancy is not terminated until the notice to quit expires. So that the Senator has asked a question which the late Lord O'Brien would say is inter apices— between the very summits of the law.
In regard to ejectment for condition broken the law is this: There are certain conditions in regard to a statutory tenancy and certain conditions in regard to a yearly tenancy. But suppose there is a lease, and that it sets out the various things that a tenant must not do. It provides a clause of re-entry. A clause of re-entry entitles the landlord to possession the moment the condition is broken. The landlord becomes entitled to possession under his clause of re-entry unless there is a further provision in the lease that the landlord must serve on the tenant a week's or a month's notice for breach of condition. I am sorry that I have to go so much into legal questions. Senator Johnson has suggested that this section and these amendments ought to be reconsidered. For my part I would like to have an informal reconsideration of the section with Senator Johnson before we brought our differences before the House to be ventilated. If the Minister would give us an opportunity for discussion and for making representations to him I would be willing to have this amendment postponed.
I do not know much about the law, but I can say this, that it is almost impossible to get rid of a tenant. Senator Comyn draws a picture of a condition being broken and of people being turned down on the street. The position is that it is almost impossible to get rid of a tenant even for the non-payment of rent, and in a case where there have been years and years of arrears. I hope the House will not run away with the idea that the tenant is not fully protected by all those intricacies of law and by the clever counsel he engages to defend him.
There is a considerable amount of misunderstanding here. Senator Comyn has very astutely mixed up the two questions of a new tenancy and the continuation of an existing tenancy. That, I think, has led to a considerable amount of confusion. This section deals entirely with the creation of a new tenancy. If a tenant has been put out of possession by reason of his non-payment of the rent, he shall not then go around and get a new tenancy from his landlord. That appears to be perfectly fair. If he has not paid his rent up to a particular date and his landlord obtains an ejectment against him, he still has got his six months in which to redeem. If he redeems he gets back his old tenancy and does not want a new tenancy at all. That is what has led to a lot of the confusion here.
Senator Comyn talked about equitable relief. There was originally in the old courts of equity the right to relief against forfeiture, and that relief was always given unless there was a serious breach of the covenant. If Senator Johnson wishes I will reconsider the matter, but at the moment I am of the opinion that the section is perfectly drafted. There is perfect protection for the tenant who pays his rent or who comes forward after the six months and pays it. I do not think it would be right or proper to have any provision inserted so that for all time tenants who refused to pay their rent should get new tenancies.
I, too, would like to have an opportunity of discussing the matter with the Minister. I am not putting forward this as my own conception.
Consideration of amendment deferred to Report Stage.
Question proposed: That Section 20 stand part of the Bill.
There is just one matter that I wish to raise on the section. It is the danger, in certain cases, of establishing the right to new tenancies. There are certain houses which are in the nature of amenities to larger residences. They are known generally as dower houses. They may not have been required for a number of years. There is the danger that if one of them has been allowed to be let for a number of years and has been alienated from the purpose for which it was ordinarily required it might come to possess the character of a business house. An occupier may start a poultry farm, and in that way property which everyone will admit in equity is an amenity to a demesne or to a larger residence might be brought into the condition of a new tenancy. I think the House will admit that that would be unjust. I hope the Minister will consider the matter before the Report Stage so that that class of residence will be protected.
Question put and agreed to.
SECTION 21.
On behalf of Senator Milroy I move amendment 27:
Section 21, sub-section (4). To delete in line 22 the word "institution" and to substitute therefor the word "granting."
This is a very small amendment As the section stands, the instituting of the application would be the crucial time in this section. The section provides that where compensation is paid to a tenant within a specified time he may renew an application for a new tenancy, and that the institution of such application shall operate as a discharge of the award of compensation for disturbance. I think it would be more satisfactory that it would not be the instituting of the proceedings but the granting by the court of the order that should be the crucial time. There are many advantages accruing from that.
Amendment put and agreed to.
I move amendment 28:
Section 21. To add at the end of the section a new sub-section as follows:—
(6) Where the letting made to a sub-tenant would entitle the sub-tenant to the benefit of this Act as against his landlord and such letting is terminated by reason of the termination of the tenancy of the landlord by the superior landlord, the said sub-tenant if in actual occupation shall be entitled to the benefit of this Act as against the said superior landlord.
This section provides for the payment of compensation in certain cases where the tenant is disturbed. The section reads:
(1) Where it appears to the court either—
(a) that the landlord of a tenement to which this Part of this Act applies bona fide intends or has agreed to pull down and rebuild or to reconstruct the buildings or any part of the buildings included in such tenement, or
(b) that such landlord requires vacant possession of such tenement for the purpose of carrying out a scheme of development of property which includes such tenement, or
(c) that for any reason the creation of a new tenancy in such tenement would not be consistent with good estate management...
My amendment to the section speaks for itself. A case may arise, and probably will arise and will be more frequent than any other kind of case, in which a landlord's main house may be required for a scheme of estate management or for some other reason in which the house of his own sub-tenant would not be required. This amendment of mine is in line with amendments under the Land Law Acts, with which Senators are so familiar. As a result of long agitation, and after many years, a clause was introduced into the Act of Parliament protecting the small man, the sub-tenant. Up to that, when the big man was put out all the sub-tenants were put out with him. They all depended on him, and their rights went with him. After discussion, that was found to be so unjust that a clause was introduced providing for the case of eviction of the middle interest and allowing the sub-tenants, that is, the tenants of the middle interest, to become direct tenants of the head landlord. That is the law as regards land. I submit for the consideration of the Seanad that it ought also to be the law in regard to houses.
Might I point out that the section relates to a tenant, but the amendment relates to a sub-tenant? I do not know whether they would be considered one and the same person.
I would like to have an opportunity of considering this amendment. I do not think that the principle involved here is quite harmonious with the rest of the section to which it is proposed to be added. There may be something in the general principle which underlies it, and if the Senator would allow it to stand over for the Report Stage it would give me an opportunity of considering it.
Consideration of amendment deferred for Report Stage.
Question proposed: "That Section 21, as amended, stand part of the Bill."
I would like to ask the Minister to explain the discrepancy that may arise between the Rent Restrictions Act and this Bill when it becomes an Act. I would like to know which will take precedence. Under Section 21 of this Bill there may be a possible discrepancy between the two. Assuming that the Rent Restriction Act is continued, which would take precedence when this Bill becomes an Act? Under this Act a tenant is not entitled to a new tenancy under certain conditions, one of which is that the landlord bona fide intends to pull down and reconstruct premises, or secondly, if he wants the premises for the purpose of carrying out a general scheme of development. That will be the law, I take it, under this Act. Under the Rent Restriction Act, in the case of any premises covered by it, the landlord cannot get possession of them for carrying out a scheme of reconstruction unless he can find alternative premises at exactly the same rent or less. I want to know, in the event of the two Acts continuing together, which would be supreme?
If the Rent Restriction Act is continued, and it is in the Schedule to the Expiring Laws (Continuation) Act, no landlord will be able to obtain possession of any premises which are protected by that Act.
In other words, the Increase of Rent Act will override this Act?
Yes, because it is dealing with a more specific matter.
Question put and agreed to.
SECTION 22.
I move Amendment 29:
Section 22. To delete in line 48 the word "direct."
I expect that this amendment will be accepted. This clause deals with compensation in cases where the tenant cannot get a new tenancy. Where he has to quit the premises, compensation has to be awarded to him. The section reads:
Where the Court awards to a tenant compensation for disturbance the measure of such compensation shall be the pecuniary loss, damage, or expense which such tenant sustains or incurs or will sustain or incur by reason of his quitting the tenement in respect of which such compensation is awarded and which is the direct consequence of his quitting such tenement.
There is only one word of any importance in that section and it is the word "direct." Now I am sure that word was not inspired by the Minister himself, but whoever inspired it has a most reactionary mind because it would practically prevent any compensation whatever from being awarded. Damages and compensation are matters that have to be considered day after day by lawyers. Damages resulting from certain acts have always to be assessed by juries and considered by lawyers according to certain rules as to the remoteness of damage. These rules have been defined and delimited by thousands of cases, to such an extent that a lawyer is now able to advise his client accurately and judges are able to decide the measure of compensation with a certain degree of uniformity. But that is only in cases where the defendant, as in this case, is to be awarded reasonable damages or reasonable compensation. Here there is imported the word "direct." That word "direct" will have an explosive effect on all the decisions because it introduces a new principle, and in my judgment it would prevent anything except nominal compensation being granted to a tenant.
I am greatly surprised that it escaped the attention of the Dáil. It is reactionary in another way. You would imagine that there should be progress in legislation. There is retrogression in legislation here. I took the trouble, for the information of the House, to go back to the Act of 1906 to see whether this blessed word "direct" was there or not. Of course, I knew it was not. If it had been there it would have been the subject of many and many an argument but, to confirm my opinion, I went back to the Act of 1906 and I found, of course, that the word "direct" was not there. In the Act of 1906 what you have is this: "Where a landlord, without good and sufficient cause, terminates, the tenant upon quitting the holding shall, in addition to compensation for improvements, be entitled to compensation for the loss of goodwill and the expenses which, by reason of the quitting of the holding, he sustains or incurs." See the beautiful simplicity of that Act! That is a plain, direct, simple Act of Parliament capable of honest construction. That is the Act of 1906.
An English Act. I do not want to say anything about our own draftsmen. As the interruption has given me the occasion of making an observation, I say with great respect that our draftsmen deserve the greatest praise. But still somebody put in that word "direct." Probably it was some lawyer who pretends that he is not a lawyer.
I did not mean Senator Sir John Keane. If I meant Senator Sir John Keane I would have said a very profound lawyer who says he is not a lawyer. That word "direct" will prevent any reasonable compensation being granted.
I think the House should consider what the removal of that word may involve. I think that some word of that kind is necessary to limit the measure of compensation. Surely there is ample precedent for it? In all the awards under the Damage to Property Act after the Civil War consequential damages were rigidly excluded. They were confined to the direct consequences and I think it should be so in this case.
This, indeed, has the rigidity of a war measure. It is of the same character as the war measures that were passed.
We do not want to make war on the landlords. At the beginning, we expressed the desire to see done what was fair as between landlord and tenant. Further, this law relating to town tenants is very difficult and complicated by reason of the fact that people in the position of landlords are frequently widows or maiden ladies who have no other means of subsistence, and, therefore, the subject is a thorny one and one that needs the greatest and most mature consideration. Regarding what Senator Sir John Keane said, that if you do not leave that word "direct" in all the consequences will have to be compensated for, of course, that is quite wrong, because we have legal principles which say that it is only the reasonable and natural consequences of an act or thing that ought to be taken into account in assessing the measure of compensation. Senator Sir John Keane must often have heard of the theory of remoteness of damage. There may be damage resulting from a thing which would be too remote to admit compensation. There are numerous leading cases which every student of law has read dealing with remoteness of damage. Consequently the general principles of law provide a limit within which the damage is to be ascertained and assessed, and there is nothing I say in that respect in the argument of Senator Sir John Keane. I hope the Minister will accept this amendment.
I was impressed with Senator Comyn until he read the quotation from the 1906 Act. I think he quoted that compensation may be awarded for loss of goodwill and expenses. It seems to me obvious that loss of goodwill is a direct consequence and that expenses are a direct consequence. In fact, "direct" is a wider word than the words in the 1906 Act.
Of course this is wider in the relief that it gives to the tenant than the 1906 Act. It is any pecuniary loss, damage or expense which is a direct consequence. If it is not a direct consequence then you would have not merely direct but, what is the opposite, the indirect consequences.
This applies to business premises as well.
Amendment put and declared lost.
Sections 22, 23, and 24 put and agreed to.
SECTION 25.
(1) Where an application is made under this Act to the court to determine the right of the person (in this section referred to as the applicant) making the application to relief under this Act the following provisions shall have effect, that is to say:—
(a) where the applicant claims compensation for improvements as original relief, the applicant shall lodge in the Circuit Court Office with the originating notice of motion or other originating document an improvement statement;
(b) where the applicant claims a new tenancy as original relief and claims compensation for improvements (with or without compensation for disturbance) as alternative relief and the court determines that the applicant is not entitled to such original relief, the further hearing of the application shall be adjourned and the applicant shall lodge in the Circuit Court Office an improvement statement;
(c) every improvement statement lodged in a Circuit Court Office in pursuance of this sub-section shall be in the prescribed form and shall state the prescribed particulars of the improvement or each of the several improvements in respect of which compensation for improvements is claimed;
(d) whenever an applicant is required by this sub-section to lodge in the Circuit Court Office an improvement statement, such applicant shall, either before or within three days after such lodgment, furnish a copy of such improvement statement to the landlord or superior landlord from whom such compensation is claimed.
(2) Whenever an improvement statement is lodged in the Circuit Court Office in pursuance of this section, the county registrar shall forthwith send such improvement statement to the Commissioner of Valuation and Boundary Surveyor, and upon receipt of such statement the said Commissioner shall cause the tenement in which the improvement or the several improvements mentioned in such statement was or were made to be inspected and a valuation to be made in the prescribed form stating the following matters in respect of such improvement or of each of the several such improvements, that is to say:—
(a) an estimate of the addition (if any) to the letting value of the said tenement at the termination of the relevant tenancy which is attributable to such improvement, and
(b) the probable duration of such addition, the probable life of the improvement, and any other matter relevant to the calculation of the capitalised value of such addition, and
(c) an estimate of the capitalised value of such addition.
(3) The said Commissioner shall cause the said valuation to be sent to the county registrar together with a statement of the fee, calculated in accordance with regulations made by the Minister for Finance, payable for such valuation.
(4) The applicant shall, on demand by the county registrar, pay to the county registrar the amount of the said fee payable for such valuation and until such fee is so paid no further proceedings shall be had in the matter, but upon payment of such fee the applicant and any other party shall be entitled to obtain from the county registrar a copy of the said valuation upon payment therefor at the rate for the time being chargeable by law for copies of documents obtained from the Circuit Court Office.
(5) The Court, in fixing the amount of the said compensation for improvements, shall have regard to the several estimates and statements contained in the said valuation.
(6) The fee paid by an applicant for a valuation under this section shall, unless the Court otherwise directs, ultimately be borne in equal shares by the applicant and the person from whom he claims the compensation for improvements in relation to which such valuation was made.
(7) Every fee received by a county registrar for a valuation under this section shall be paid by such county registrar into or disposed of by him for the benefit of the Exchequer in such manner as the Minister for Finance shall direct.
The following amendments stood in the name of Senator Milroy:
30. Section 25, sub-section (1). After the word "statement" in line 29 to insert the words "in duplicate."
31. Section 25, sub-section (1). After the word "statement" in line 37 to insert the words "in duplicate."
32. Section 25, sub-section (2). After the word "send" in line 52 to insert the words "one duplicate of."
On behalf of Senator Milroy, I move amendment 30.
Amendments 30, 31 and 32 go together. The first two provide that the improvement statement to be lodged in the Circuit Court Office must be in duplicate. This is desirable as one copy must be forwarded by the County Registrar to the Valuation Office and the other should be kept in the Office. It merely means that when you are putting in this statement you put in two copies, one to be kept in the Office and one to be sent to the Valuation Office.
Amendment put and agreed to.
Amendments 31 and 32 agreed to.
I move amendment 33:
33. Section 25, sub-section (5). To add at the end of the sub-section the words, "Provided that nothing herein contained shall prejudice the right of either party to submit evidence that the said valuation is erroneous in fact."
I put down this amendment as there appears to be some doubt in certain people's minds that the party will be entitled to collect independent evidence of value.
There cannot be any possible doubt.
Amendment, by leave, withdrawn.
Section 25, as amended, put and agreed to.
SECTION 26.
I move amendment 34:
Before paragraph (e) to insert a new paragraph as follows:—
"(e) Where the court makes an order under this section for the grant to a tenant of a new tenancy in a tenement, and the landlord of such tenement is a person under a disability or in a fiduciary capacity or possessed of a limited estate only, the court may make such order as the court thinks proper to enable such new tenancy to be granted, notwithstanding such disability, fiduciary capacity or limited estate, as the case may be."
This amendment was drafted in the ordinary way by the Parliamentary draftsman, but on reconsideration we have come to the conclusion that possibly the amendment is not quite wide enough in its terms. For instance, we do not deal with the case in which a landlord might not be found. What I would venture to suggest to the Seanad would be that this amendment might be allowed to stand over until the Report Stage, in order that a similar amendment would be brought in, but wider and more comprehensive in its terms. I might incidentally say that if that is done a great number of amendments standing in Senator Comyn's name—from 44 on —would become unnecessary.
Probably the amendment in its present form does not carry out the intention. My suggestion is that if there is a person in a fiduciary capacity, or not of full legal status, probably the best method of dealing with the difficulty would be to follow the procedure that is adopted in the Land Acts, and to create the person by an order of the court or otherwise. In that way such an administrator would be in a fiduciary capacity. That was the way it was done in the Land Act. Perhaps there are reasons why it would be adopted in this Act.
Amendment, by leave, withdrawn.
Section 26 agreed to.
SECTION 27.
I move amendment 35:
Section 27, sub-section (4). To insert before the sub-section a new sub-section as follows:—
"(4) Where a landlord serves a notice on his tenant under sub-section (1) of this section offering a new tenancy in the tenement on terms specified in such notice and the court makes an order granting such new tenancy in the terms or substantially in the terms specified in the said notice and the tenant serves a notice refusing such new tenancy, the court shall order the tenant to pay the landlord the costs of and incidental to the application to the court to fix the terms of the new tenancy."
I think the effect of this amendment is perfectly clear. I think it is only reasonable.
I would suggest to the Senator that always and in all cases the question of costs should be left to the presiding judge. You may be satisfied that the judge will give costs where costs ought to be awarded.
Amendment, by leave, withdrawn.
Sections 27 to 36, inclusive, agreed to.
SECTION 37.
Where a tenancy in a tenement terminated before the passing of this Act and the tenant of such tenement is at the passing of this Act in occupation of such tenement notwithstanding such termination and without having obtained a new tenancy in such tenement, such tenancy shall for the purposes of this Act be deemed, to terminate immediately after the passing of this Act and this Act shall apply accordingly.
I move amendment 36:
Section 37. After the word "tenement" in line 20 to insert the words "whether a decree in ejectment has been made against such tenant or not."
I would ask the Senators to look at Section 37. Perhaps if they do they will think that a good deal of the matter discussed between the Minister and myself in regard to earlier sections, was, to some extent at least, provided for in the Bill. My object was to see that a tenant so long as he is in the house will have all the rights of a tenant. I do think that the object of the section was to carry out in another way what I had been contending for.
As far as I am concerned, I think this is a different point. Subject to the draftsman altering the wording I would be willing to accept the amendment.
Amendment agreed to.
Amendment 37 adjourned to Report Stage.
Section 37, as amended, put and agreed to.
Sections 38 to 43, inclusive, agreed to.
SECTION 44.
(1) In this part of this Act the expression "building lease" means a lease in respect of which all the following conditions are complied with, that is to say:—
(a) the land demised by such lease is situate wholly in an urban area;
(b) there are permanent buildings on such land and the portion of such land not covered by such buildings is subsidiary and ancillary to such buildings;
(c) such permanent buildings are not an improvement within the meaning of this Act;
(d) such permanent buildings were erected by the person who, at the time of such erection, was entitled to the lessee's interest under such lease;
(e) such permanent buildings were not erected in contravention of a covenant, condition, or agreement contained in such lease.
I move amendment 38:
Section 44, sub-section (1). To delete all after the word "land" in line 28 down to and including the word "buildings" in line 30 and to substitute therefor the words "and the rateable value of the portion, if any, of such land not covered by buildings would be less than the rateable value of such buildings."
This matter calls for very close consideration. Section 44 deals with special provisions in relation to building leases. I do object to the phrase "subsidiary and ancillary" in clause (b), for the reason that it would be impossible to determine what is subsidiary and what is ancillary to a house in an urban area. It is a matter which will lead to endless litigation and confusion. It is peculiarly important in growing cities like the City of Dublin which is growing, as I think, a little too fast. I want to substitute for these vague words "subsidiary and ancillary to such buildings" some definite proportion; I say one-half. If the rateable value of the land is not more than the rateable value of the house then let it come under this Bill. It is a definite way of dealing with it. Some Senators may think that the figure of 50 per cent. for the land is too high. They may think that 20 per cent. or 30 per cent. would be sufficient. In any case, it is a definite measure and builders and occupiers of the houses will know exactly where they stand. I am not wedded to 50 per cent. on houses and 50 per cent. on lands, but I certainly would press the House that they should consider a definite measure based on value and not to expose the unfortunate tenants and landlords to the long vista of litigation which will arise on the construction of the words "subsidiary and ancillary to such buildings." These words cannot be determined in any one decision. They will become the subject of fresh consideration and decision in every case as it arises. Lawyers are sometimes thought of and perhaps spoken of as people who are anxious to have litigation. We are not. We are anxious for full justice. As a lawyer and acting with the full approval of other lawyers, I am submitting this amendment for the consideration of the House. I think the Minister ought to consider it before the Report Stage comes on.
This, I admit, is a rather complicated question. But surely the words "subsidiary and ancillary" relate to questions of fact? Where the land is, is a question of fact. That varies according to circumstances and it is much better to leave it to the judge to decide on the facts than to face a rigid value. The Senator only gives a shot at it. Any, attempt at rigidity would not meet the very varied conditions you find in an urban area. Bearing in mind all the variety of lands that might be attached to buildings, it is far better to leave it in the form in which it is in the Bill than to fix a rigid figure.
The Bill as it stands would be too indefinite and too dangerous. It seems to me that the Senator who has just spoken deals with the ancillary reference to the occupier rather than to the building. Anything that is ancillary to a building must be frightfully indefinite. The only thing that I can visualise which would be ancillary to buildings would be back-yards, passages and rights of ways. I do not think any land would be included.
Is not a garden ancillary?
Not to the buildings; it may be to the land.
I do not think there will be any real difficulty in deciding what is ancillary. An ordinary town garden would be ancillary, so would a front garden, or any thing of that kind, to an ordinary Dublin house. I think, Senator Comyn's amendment would go most desperately far. It might bring in a huge stretch of country, so to speak. You may have a house on 30 or 40 acres of land and the house might be worth £60. That is not what is meant by "buildings." I think you will have to take these words "subsidiary and ancillary." The main purpose has been the erection of houses.
Amendment put and declared lost.
Question proposed: "That Section 44 stand part of the Bill."
Sub-section (1) paragraph (a) states that the land covered by these provisions must be wholly in an urban area. In view of the change in the title and the definition it seems to me that these words "wholly in an urban area" might be altered so as to include lands that are covered by the Bill as a whole.
I think that these building lease provisions should be restricted to urban areas. It is only in urban areas really that the building will arise. Our intention is that they should be restricted to ordinary houses. The number will be very small outside urban areas to which this applies.
What I am rather thinking of is the number of houses that are being built around what are at present urban areas, that is to say, houses in districts outside Dublin that will become urban areas some day.
Before the lease has expired.
I am wondering whether they will be covered in that case or whether it must be an urban area at the time the lease is made.
It will be the time at which they come before the court.
Section agreed to.
SECTION 45.
(1) At any time within five years before the expiration of a building lease, any person in possession of the land or any part of the land comprised in such lease and holding the same under such building lease or under a proprietary lease shall, subject to the provisions of this Part of this Act and on obtaining the consent (if any) required by this section, be entitled to obtain from the person in receipt (otherwise than as agent for another) of the rent reserved by such building lease a reversionary lease on the terms fixed by or under this Part of this Act of the said land so possessed and held by him as aforesaid.
I move amendment 39:
Section 45, sub-section (1). To delete in line 1 the word "five" and to substitute therefor the word "seven."
This really is consequential on an amendment which was carried in the Dáil. In clause (c) of Section 44 you have the period "and which in any case expires at the same time as or not more than five years before the expiration of such building lease." As the Bill was originally introduced, that period was two years, and the "five" (years) which occurs later and which we now propose to delete was a natural provision then to anything that brought this period up to five years. It is considered necessary to bring the other up to seven years to make it harmonious.
Amendment put and agreed to.
I move amendment 40:
Section 45. To add at the end of the section a new sub-section as follows:—
(4) Where a lessee of a building lease which expired within two years before the passing of this Act is at the date of the passing of this Act in actual occupation of the land or premises, or part of the land comprised in such building lease, notwithstanding such expiration and without having obtained a renewal of the said building lease by reason of the lessor's refusal to grant such renewal on terms consistent with Section 46 of this Act, then such lessee shall for the purposes of this Part of this Act be entitled to obtain from the person in receipt (otherwise than as agent for another) of the rent reserved by such building lease a reversionary lease of the said lands or premises, or part of the land comprised in such building lease on the terms fixed by or under this Part of this Act, subject however to the provisions of sub-sections (2) and (3) of this section.
The amendment is an attempt to cover a point that I raised on the Second Reading Stage and is intended, of course, to bring within the provisions of this section certain people who have been the tenants of building leases whose leases had run out since the introduction of this Bill or since the Report of the Town Tenants Commission was issued. The amendment probably does not do the work very well, but Senator Milroy, presumably acting on behalf of the Minister, has put forward another amendment which I frankly acknowledge is much better than my own. I am very glad to acknowledge the way the Minister has met that point and I would ask leave to support Senator Milroy's amendment rather than my own.
Amendment by leave withdrawn.
On behalf of Senator Milroy, I move amendment 41:
Section 45. To add at the end of the section a new sub-section as follows:—
(4) Where a building lease has expired within five years before the passing of this Act and the lessee thereunder is at the passing of this Act in possession of the land comprised in such building lease either under a yearly tenancy arising by implication from the acts of the parties or as a tenant at will or without obtaining any new tenancy, such lessee and every person in possession of such land or any part thereof under a yearly tenancy which arose on the expiration of a proprietary lease by implication from the acts of the parties shall, during six months after the passing of this Act, severally have the same rights in relation to obtaining a reversionary lease under this Part of this Act as they would respectively have had within seven years before the expiration of such building lease if this Act had then been in force.
Amendment put and agreed to.
Section 45, as amended, agreed to.
Question proposed: "That Section 46 stand part of the Bill."
The provision here is to the effect that the ground landlord, at the expiration of the period of the building lease, will be entitled to a quarter of the gross rental in the reversionary lease. That comes under paragraphs (c) and (d). I want to know why the ground landlords' rent should be increased at all in the event of a reversionary lease being granted for 99 years. He is getting the ground rent under the contract he already entered into and, when the lease expires, he is not entitled, to quarter of the gross rental which, in many cases, would mean that the man who paid for the house would be getting practically nothing. How does this quarter come in? Where is it in the recommendations of the Town Tenants Commission?
The amount of one quarter was arrived at more or less on the rule of thumb principle of settling questions which must arise between the building lessor and the building lessee. As the Senator is no doubt aware, at the present moment when a building lease expires, when any lease expires, the landlord is entitled to go into possession and demand the full rent of the premises. In a great number of cases—this is truer of business premises than of residential premises—landlords have gone in and have, at the end of the building lease, received the full rack-rent which the premises could bear. That right is taken away under this Bill. At the same time, if the premises have improved, if a place has gone up in value, I do not see any reason why the landlord should not get a certain proportion of the increased value of the premises. At the present moment he can take it all. He will not be allowed to do so in future. All he will be allowed to take is a fair proportion. In order to avoid countless cases arising between landlords and tenants on the expiration of a building lease, in order to avoid a huge amount of litigation, it was thought easier and simpler to adopt the rule of thumb method and for the future to allow the landlord a quarter where now he can get all.
Will not the tenant have the right to refuse? Can he not go to court? Supposing the quarter worked out in such a way that the man who owned the property would get practically nothing, would that be considered a case for the court? I will give an instance where, in my opinion, the holder of the building lease will get practically nothing. Of course, the Minister says he is entitled to nothing as it is, but if you give him a reversionary lease you should give him something.
How does the Senator make out that the man would receive nothing? Suppose there are premises worth £100 a year. The rent which the ground landlord would get would be £25 and the building lessee who gets the new lease will get the odd £70.
Take the case of a house where the ground landlord is getting £3. That is a small house and it is controlled. The rent of that would be £36, less rates. That would bring the rent, say, in Dublin to £23. Under this Bill the landlord, instead of getting £3, will get £6, and the owner in the end will get practically nothing. He will get £23 less the £6 for the landlord. Then he has to meet income tax and other charges, and when the figures are worked out it will be found that he gets almost nothing at all.
I think the Senator is too gloomy in his outlook.
Sections 46 and 47 agreed to.
SECTION 48.
On behalf of Senator Milroy, I beg to move amendment 42:
Section 48, sub-section (2). To delete the sub-section and to substitute the following new sub-section therefor:—
(2) Where, after the passing of this Act, a lease (in this section referred to as the statutory reversionary lease) of any land is made by way of reversionary lease to a building lease by a person who is bound to make and to a person who is entitled (either with or without obtaining the consent of another person) to obtain under this Part of this Act a lease of such land by way of reversionary lease to such building lease, the following leases shall be void and of no effect, that is to say, every lease which
(a) is made after the passing of this Act and either before or after the making of the statutory reversionary lease, and
(b) comprises the land or any part of the land comprised in the statutory reversionary lease, and
(c) is made by way of reversionary lease to the said building lease, and
(d) is made by a person who is bound under this Part of this Act to grant a reversionary lease of the land comprised in such building lease, and
(e) is made to a person who either is not entitled to obtain under this Part of this Act a reversionary lease of the land or any part of the land comprised in the statutory reversionary lease or (being entitled so to obtain such reversionary lease only on obtaining the consent of the person to whom the statutory reversionary lease is made) did not obtain such consent.
This amendment really makes no difference in sub-section (2), but the Parliamentary draftsman was not very satisfied with the drafting of the original sub-section. He has drafted this amendment which, he thinks, achieves the purpose better. The object of the section is to prevent a fictitious reversionary lease, so to speak, being given which might cut out persons who would be entitled to reversionary leases under the Act. In other words, head landlords might possibly set to work and give reversionary leases to persons not entitled to them under the terms of the Act. This sub-section makes such leases void. It is really only a matter of drafting. There is no substantial difference between sub-section (2) as redrafted and the sub-section inserted originally in the Bill.
Amendment agreed to.
Section 48, as amended, agreed to.
NEW SECTION.
On behalf of Senator Milroy, I beg to move amendment 43:
New section. Before Section 49 to insert a new section as follows:—
"49.—Where a building lease is terminated (before the expiration thereof by effluxion of time) by ejectment for non-payment of rent, breach of covenant or otherwise or by the exercise by the lessor of a power of re-entry for breach of a convenant or a condition contained in such building lease, the following provisions shall have effect, that is to say:—
(a) no sub-lease of the land or any part of the land comprised in such building lease which is an immediate sub-lease under such building lease and is a proprietary lease shall be terminated by such ejectment or re-entry,
(b) the person who would but for this section become entitled by virtue of such ejectment or re-entry to the possession of the land comprised in such sub-lease shall become and be entitled to the reversion on such sub-lease and to the benefit of the rent reserved by and the covenants and conditions contained in such sub-lease,
(c) such sub-lease shall become and be a building lease within the meaning of this Part of this Act and this Part of this Act shall apply in relation thereto accordingly."
This is somewhat similar to what we have already dealt with to-day. When a building lease is terminated by an ejectment for non-payment of rent or a breach of a covenant or condition contained in a lease, all sub-leases under the building lease automatically terminate. The object of the amendment is to protect the sub-lessees in such cases. The amendment provides that where a building lease is terminated the interests of any immediate sub-lessees thereunder who hold proprietary leases shall not be terminated. The effect is that when a middleman has been cut out by the termination of his tenancy the sub-tenant, if he holds a proprietary lease, steps in, and there is no forfeiture of his interests.
New section agreed to.
Section 49 agreed to.
Cathaoirleach
With regard to amendments 44 to 51 inclusive, and 57 to 64 inclusive, all in the name of Senator Comyn, in my opinion these are, in strictness, inappropriate in the place in which they are offered—that is, those parts of the Bill which deal with building leases. They should have been offered to Part III of the Bill, which deals with new tenancies, whether by means of an omnibus section or otherwise. However, as the Minister and Senator Comyn are agreed that these amendments depend on the Minister's proposed new amendment to Section 26, I presume they will not be moved, so that the question of whether they are in order in the parts of the Bill to which they are offered does not arise.
If that is the ruling of the Chair, I bow to it.
Amendments 44 to 51, inclusive, not moved.
Sections 50 to 55, inclusive, agreed to.
NEW SECTION.
On behalf of Senator Milroy, I beg to move amendment 52:
New section. Before Section 56, and in Part VI, to insert a new section as follows:—
"56.—Where a lease (whether made before or after the passing of this Act) of a tenement contains a covenant, condition or agreement prohibiting or restricting the doing by the lessee of any particular thing without the licence or consent of the lessor, and the rent reserved by such lease has not been paid for five or more years, and the lessor is not known to and cannot be found by the lessee, the court may, on the application of the lessee and after the publication of such (if any) advertisements as the court shall direct, and if, having regard to all the circumstances of the case, the court thinks fit so to do, authorise the lessee, subject to such (if any) conditions as the court shall think fit to impose, to do the particular thing so prohibited or restricted by such covenant, condition or agreement, and thereupon it shall be lawful for the lessee to do such particular thing without the licence or consent of the lessor, but subject to and in accordance with the conditions (if any) imposed by the court."
This is to meet a case of possible hardship which, though rare of occurrence, still does in fact occasionally occur. It is the case where a lessee finds himself prevented in the doing of some particular thing by the fact that the consent of the lessor is required and the lessor is not known or cannot be found and the rent has not been paid for five or more years. In that case the lessee may apply to the court and the court may, after ordering such investigations as it thinks necessary, give the lessee the power to do the things he requires to do. Occasionally, strange to say, landlords are lost. These cases have occurred in practice.
New section agreed to.
SECTION 56.
(2) The consent required by the foregoing sub-section of this section to be obtained by the applicant shall be—
(a) where the occupier of the building ground holds the building ground in fee farm or under a lease of which not less than ten years are unexpired on the day on which the application under this section is made, the consent in writing of such occupier; or
(b) where the occupier of the building ground (whether he is or is not himself the applicant) holds the building ground for a term of which less than ten years are unexpired on the said day or under a yearly tenancy or any lesser tenancy, the consent in writing of the person for the time being in possession of the lowest interest in the building ground which is sufficient to support the grant on the said day of a lease for one hundred and fifty years.
Senator Brown has asked me to move this amendment for him, and I accordingly do so:
Section 56, sub-section (2). To delete in line 21 the word "ten" and to substitute therefor the word "twenty."
Section 56 deals with the granting of building leases by the court. I will direct attention to paragraph (a) of sub-section (2): "Where the occupier of the building ground holds the building ground in fee farm or under a lease of which not less than ten years are unexpired...." The amendment is to substitute "twenty" for "ten." The reversionary interest is done away with once a period of ten years has arrived, and anyone who has a title older than that has nothing to say as to whether the land is to be let on this building lease or not. It looks as if the period of ten years was put in for the purpose of hurrying up building and doing away with anything that would check building. There are many things to be regarded when letting land for building that might be of very great interest both to the neighbourhood itself and to someone who had a reversionary interest that would come to him for a period longer than ten years.
We know there are properties suitable for building schemes in urban districts, and if a good sound scheme is proposed it takes time to make the necessary preparations. If a scheme is carried out in a hurry, small, bad class buildings are often erected. That might easily suit someone who would have only eight or nine years' interest, but the individual who would have a claim between ten and twenty years would have no voice in the matter according to this section. I think such an individual ought to have some voice in the setting up of a scheme for building on the land in which he has an interest. A properly thought out scheme in which he would have a voice would be far better than a hasty scheme where the land and the amenities of the neighbourhood might be spoiled.
I do not think it would be right to rule out anyone who has an interest after ten years from having any voice in starting building schemes on the land, because otherwise some wretched scheme might be carried out, and such an individual could not say a thing. I think it is in the interest of such neighbourhoods, and it would be to the benefit of everybody concerned, if those who hold interests after ten years would have some voice in the matter. That is really what the amendment aims at.
I agree entirely with what Senator Jameson says, that a person who has a reversionary interest should have a voice in the matter. If the Senator looks up Section 56 he will see that sub-section (5) sets out:
Where an application is made to the court under this section—
and there always must be an application to the court whenever the section is to be enforced—
the court shall, before proceeding with the hearing of such application, be satisfied that all necessary parties have notice of the application, and for that purpose the court may direct such inquiries to be made and notices to be served as it shall think proper and in particular may direct any such notice to be served by advertisement.
That means that the head landlord and all intervening interests must get notice from the court, and they can come in and put forward their objections. Later on it is provided that a specification of the buildings, or rather an indication of what the buildings are going to be, must also accompany the application to the court. The result is that the head landlord will know what buildings are suggested, and can put his case before the court. The object is to facilitate the granting of building leases. What will happen under this section is this: Let us say a person has been ten years in occupation or has ten years to run. He will apply for a building lease, or someone else with his consent will apply. He will receive a building lease until his term has expired, and then it will fall to the head landlord. The whole thing is aimed to hurry up building schemes. There are these short term leases that the Town Tenants Commission regard as preventing the development of estates and preventing building operations, and they hit upon the period of ten years.
Does not the period of ten years preclude the others? The amendment is brought forward in the belief that the word "ten" excludes a greater term of years.
All persons interested will be served with notices by the court, and can be heard in court.
Their consent is not required according to this. Is not that so?
Their consent is not required, but the court need not make an order.
What right have they to go into court if their consent is not required?
Because they are persons interested in the application.
They have been ruled out according to the Bill as I read it.
No. A building lease will be a long-term lease. This does not enable the person who has only a ten years' interest to make a building lease. The building lease will have to be executed by the person who can make a long-term lease. Probably in most instances the building lease will have to be executed by the owner in fee-simple. Therefore he is an interested party and he must get notice.
The mere fact of getting notice does not improve his position. His position is entirely based on the ten years period. The Minister has alluded to sub-section (5), but if this present sub-section passes as it stands, the court cannot vary it; it cannot change ten to fifteen or twenty; it is bound to act on the actual wording of the section.
I think there is some misapprehension. It is the person who has a ten years' interest who, if he is in occupation, must give consent prior to the application to the court. It is only a condition precedent to the application to the court. If there is a person with ten years' interest, his consent must be got, and then the court goes on and grants the lease.
Probably neither Senator Guinness nor myself is sufficiently learned in the law to discuss this matter, and perhaps it could be left over.
Cathaoirleach
Perhaps the Senator might like to leave it over until Senator Brown comes?
I should like to adopt that course.
Cathaoirleach
This and subsequent amendments in Senator Brown's name will therefore be postponed until the Report Stage. The amendments concerned are amendments 53 to 56, inclusive.
Amendments 57 to 64, inclusive, not moved.
SECTION 56.
I beg to move amendment 65:
To add at the end of the section a new sub-section, as follows:—
"(12) This section shall not apply to any land which is vested in or held in trust by any local or public authority (otherwise than as tenants thereof) for the purposes of their powers and duties as such or is held by any corporation for the purposes of a railway, tramway, dock, canal, water, gas, electricity or other public undertaking."
I suggest that this proposed new sub-section will carry out what I think is the intention of the Minister; that is, to exclude lands vested in public utility companies from the compulsory clauses of the Bill. They always have been excluded in every other Bill of this sort. I take it that it is the intention of the Minister they should be excluded in this instance also.
I think the Senator's amendment is sound in principle, but I would like the Parliamentary draftsman to cast his eye over it.
I am quite agreeable to that course. On the undertaking that the Minister will bring in a new amendment, I will withdraw mine.
Amendment, by leave, withdrawn.
While on Section 56 I would like to mention that-both in this section and in Section 12, the words "for life or lives" were, through an oversight, left out in connection with leases. I intend on the Report Stage to bring forward amendments to Sections 12 and 56 including leases for life or lives. I think it is right to mention it at this stage, as otherwise the amendments might not be in order on the Report Stage.
Sections 56 to 59, inclusive, agreed to.
THE TITLE.
An Act to make provision for the further improvement and amelioration of the position of tenants in urban areas and for that purpose to amend the law relating to compensation for improvements made by such tenants and to disturbance of such tenants, to facilitate the granting of building leases, and to make other provisions in relation to landlords and tenants in urban areas.
On behalf of Senator Milroy I beg to move amendment 1:
Title. After the word "areas" in line 8 to insert the words "and certain other tenants."
Amendment agreed to.
Bill reported with amendments. Report Stage fixed for Wednesday, 2nd December.
