I think that the position in regard to this amendment last night was that the Minister had exhibited a certain careful reluctance to accept it. The Minister made a statement which I did not quite follow, and I should be grateful if he would expand it. He said that he was fairly convinced that owners of those highly-valued houses had offset the possibility of control in the rents which they were receiving. I do not know whether the suggestion is that, between 1939, when the war broke out, and 1941, everybody who could had increased his rent because of the possibility of having rents stabilised at some future date. If that is the Minister's assertion, then I say, with great respect, that such knowledge as I have does not correspond with it. I think that between 1939 and 1941 there were no substantial increases whatsoever in the rents of those uncontrolled houses. Nobody increased his rent so as to get in what I may call a "quick one" on the Minister, in anticipation of control. Although we have had rent restriction in one form or another from 1915 onwards, this is, I believe, the first occasion in which the restricting measure made no provision whatsoever to recoup landlords for the undoubted rise in prices and increased expenditure. In the earlier Acts the increase varied according to a percentage—10 per cent. or 20 per cent. In every case some allowance was made to the landlord for the fact that his rent was being taken out of the economic field. I agree that these houses should be controlled if there is any danger of profiteering. But I see no reason why, if you stop profiteering by bringing them within the Act, the landlords should not be allowed an increase in the rent. In that class of houses, the tenants, on the whole, are richer than the landlords, as I showed yesterday. The Minister has not answered the question why, in this Act, in the case of the large houses, as opposed to that of the smaller houses, there is no provision for a penny increase in the rent to the landlord. The whole burden of increased expenditure is thrown upon him. It is not divided between him and the tenant.
Rent Restrictions Bill, 1944—Committee (Resumed).
When I spoke on this amendment yesterday, I was not clear that small houses—houses occupied by wage-earning and low-salaried persons—were included in the non-1923 group. I quite see the Minister's point, that it might not be fair to grant an increase of rent in respect of the smaller houses. Can the Minister differentiate between the valuation groups of those non-1923 houses? It would be reasonable, especially after what my friend, Senator Kingsmill Moore, has said to ask that a small increase—say 10 per cent.—should be allowed in the case of those houses of £40 to £60 valuation. That ought not to be administratively difficult and it would be merely justice to differentiate to that extent. I appreciate the Minister's difficulty. The Minister says he must try to make these measures as simple as possible. I am afraid he has leaned to that point of view rather than to the necessity for holding the scales evenly and effecting justice as between the different classes involved. I know that there is a great temptation to do what is called rough justice, to take the rough with the smooth, and to say that we cannot have regard to the niceties. The point I am making is much more than a nicety. I do not know why it was necessary to bring in those high-valuation groups at all. I do not think that the Minister told us that. There are a number of smaller houses in the non-1923 group but what the necessity is for bringing in the highly valued houses I do not know. The Minister should recognise that there is a great deal in Senator Kingsmill Moore's argument that the landlord in many of these cases is poorer than the tenant. In the case of houses from £40 to £60 valuation, the tenants could well afford to pay a slightly increased rent, bearing in mind that there has been no allowance whatever for repairs in respect of this group. The Minister said the other day that repairs had already been discounted in the rent charged. But some of those rents have not been changed for years. In the case of those higher valuations, the rents, in many instances, had never been put up. Between the wars, they remained at the same figure. I do not think that an examination would support the Minister's statement, that the rents had been revised in those higher groups so as to take account of the increased cost of repairs, especially as the increase in the cost of repairs had not come about until after 1940.
There is one other point which I should like to make. I do not know whether or not I am in order in doing so now. The matter to which I wish to refer does not seem to come under any section. I want to make a plea to the Minister to consider the question of vacancies in regard to those houses of higher valuation and to allow some mitigation of the hardship which the owners are suffering. When vacancies arise, the landlord should be allowed to take advantage of market conditions or he should be allowed a stated increase of rent. That might lead to complications but, when you begin to control, you cannot avoid complications if you want to do justice to all parties.
The figure of £60 valuation was an arbitrary figure but, in fixing it, we were following the 1923 Act. Under that Act, the figure in Dublin was £60 and, elsewhere, £40. It may be somewhat on the high side. When the last Government commenced to decontrol, they decontrolled the £60 house and went on each year until they got to the £30 house. They stopped there because they found that the rents were being raised in the case of houses which had been decontrolled. I thought that I dealt clearly last night with the reason why there was not an allowance for repairs in the case of the non-1923 controlled houses. Competition was very keen for houses in the 1941 class and very stiff rents were being charged. Everybody who sought to rent a house which was not controlled is aware that a stiff rent was charged. Before the Emergency Powers Order was brought in, which allowed nothing for repairs in those cases, we went carefully into the question and we were satisfied that the rents were of such an order as not to justify the 20 per cent. increase allowed in the 1914 cases. In 1914, houses were let at rather low rents and it was the ordinary practice to rent houses. Since then, there has been a great deal of selling of houses. A number of landlords were, undoubtedly, charging competitive rents in 1914 and there was a case for giving them the increase of 20 per cent. and something for repairs. As I said last evening, this is a temporary Act. If it is to be prolonged, it will be necessary to review the whole position. Then, I am sure, the question of repairs will be considered. At the moment, I do not think that any great case can be made for it.
I do not suggest that anything extraordinary happened between 1939 and 1941. There may have been increases. I am speaking of the whole of the non-controlled houses. There was keen competition for houses to rent and high rents were charged. We would not have been justified in allowing a 10 per cent. or 15 per cent. increase of rent, especially in a period in which the Government was trying to stabilise wages and profits of all kinds. Senator O'Reilly said that the cost of living had gone up. It has gone up on the persons referred to by Senator Kingsmill Moore as well as on others. The income of judges and senior counsel is not buying as much as it did before the war. The persons living in those highly-valued houses have to pay the rent they were paying in 1941 and they have to pay more for necessaries, just as the owners of the houses have. Without a means test, how would you find out whether a landlord was a poor man or a wealthy man? In doing as has been suggested, you might be imposing hardship on a class of persons who have been affected by the present stringent conditions. When matters get easier, this question can be reviewed. At the present juncture, I am not prepared to make any allowance for repairs in respect of that type of house.
This proposal is not concerned with repairs. I mention that now because, later, I hope to suggest that, in regard to repairs, a provision similar to that in the 1923 Act should be introduced.
This is in lieu of the 20 per cent?
Yes.
I think that there is a weaker case for that than for an allowance for repairs in view of the scarcity of houses, the keen competition and the high rents.
I am sure that the Minister did not deliberately wish to give us a distorted picture, but he did suggest that the bulk of those non-1923 houses were the subject of fresh lettings. Has he examined that? If he does, I am sure he will find that a very large majority of those houses are let at rents which have never been disturbed. Considerable hardship is involved.
I move amendment No. 26:—
Before Section 15 to insert a new section as follows:—
(1) If on an application to the court under this section by the landlord of premises to which Section 14 of this Act applies, the court is satisfied that:
(a) the landlord was on the operative date or has come, since the operative date, into possession of the whole of such premises, and
(b) on the 7th day of May, 1941, the occupying tenant of the premises was relation of the landlord, and
(c) the rent payable by such occupying tenant was less than the rent the landlord might reasonably have expected in the year ending on 7th May, 1941, under any given contract of tenancy not being for more than a term of five years
the basic rent of the premises shall, notwithstanding the provisions of Section 14 hereof, be determined by the court in accordance with the provisions of Section 16 hereof.
(2) For the purposes of this section the word "relation" means any lineal ascendant or lineal descendant, or brother or sister of the landlord or of the wife or husband (as the case may be) of the landlord.
Senator Kingsmill Moore has a similar amendment, though mine is narrower than his. It might save time if the two amendments were taken together.
Is it agreed that amendments Nos. 26 and 29 be taken together?
Agreed.
Amendment No. 29 was as follows:—
Before Section 17 to insert a new section as follows:—
17.—(1) Where either the landlord or the tenant of premises, the basic rent of which is ascertainable under Section 14, is of opinion that the rent so ascertained is less or more than that which the immediate landlord of an occupying tenant might in the year ending May 7th, 1941, reasonably have expected under any given contract of tenancy not being for more than a term of five years the landlord or tenant of such premises may apply to the court to fix the rent of such premises under Section 16.
(2) On any application under the foregoing sub-section the court shall not award any costs to an applicant unless the rent so fixed by the court exceeds or is less than (as the case may be) the rent fixed under Section 14 by more than 10 per cent. of such rent.
The point in this amendment is rather a small one. I know of specific cases where a man who owned a house on May 7th, 1941, had let it to a near relative. There are two such cases in my mind. In one of them the house was let to a man's daughter and his son-in-law, and in the other, it was let to his sister. In neither case was a competitive rent being charged because of the special relationship. Doubtless, there are not very many of these cases, but there are some and I suggest to the Minister that in such cases where the rent charged is not obviously competitive, and where the particular class of person who is in those houses leaves the houses, then the new basic rent should be fixed by the court by reference to what would have been the competitive rent in 1941, instead of being fixed at a specific rent at which it was let for the special reasons I have instanced.
There are a few cases of that kind in Dublin. Not only have I come across them myself but other solicitors have come across them and the effect of my amendment is that a basic rent will be fixed by the court under the second section instead of under the first.
My suggested section covers Senator Sweetman's point but is a little bit wider in its scope. It is meant to cover the cases where the 1941 rent was either too high or too low by reason of abnormal conditions. The Minister has assumed that all rents at that date were fixed by the inter-play of ordinary economic forces, but a moment's reflection will show that while that may cover 90 per cent. of the cases, there are bound to be a number of exceptional ones.
Let us take the case of a representative of a foreign country who expects to be here only for a short time. He takes a fancy to a house, and just because of that he pays twice the normal rent for it. The result of that is that the rent paid by a foreign diplomat becomes the basic rent when he is transferred to another country. That is an example of where the rent would be too high.
On the other hand, there are cases such as Senator Sweetman has mentioned where houses were let at low rent to relatives or old friends of the family who were in possession and who could not be disturbed. I know a small terrace of houses where it was the policy of the landlord never to raise the rent on an old tenant, with the result that in 1939 the rents were the same as 1904. In some cases indeed the landlord made slight reductions because some of his old tenants had fallen on bad fortune.
It is all very well to suggest, as we often hear it suggested, that the landlord is trying only to get the last penny out of his tenants, but many landlords dislike intensely the idea of raising the rent on an old tenant. In such cases, needless to say, the tenants tend to become older and older and do not leave. Very often too, as the result of an ad misericordiam appeal, the landlord reduces the rent—he may take off £5 a year because the tenant has retired from his old job and is not so well off.
I am not inventing any of these examples. I can give the Minister the names and places, and I mention them only because it may be found that in 1941 the rents concerned were either considerably too high or too low. It is not right that, where those conditions prevail, the fortuitous rents prevailing at that date should be stereotyped for five years and, accordingly, I respectfully recommend to the Minister my proposed new section. In other words, if either tenant or landlord think the rent is wrong, they have the option to have it fixed under Section 14 by going to the court and asking the court to fix it as a fair rent for a short-term letting.
In case anyone should think that that would give rise to a whole flock of applications in the court, it occurred to me that it might be necessary to discourage applications made through excessive optimism and, therefore, I provided in the sub-section which follows that unless the court raised or lowered the rent by less than 10 per cent. there will be no costs. This would mean that, unless there was a very substantial increase or decrease, the successful applicant would get no costs. That is a check proposed to prevent cases by persons who are merely, if I might use the phrase, chancing their arm.
They can go to the court, and if they show there has been substantial miscarriage of justice in having the rent automatically fixed at the 1941 standard, then they can get the costs of the application. Otherwise, even though they may get a slight increase or decrease, they would have to abide their own costs.
In theory, I cannot see any objection to this section. Nobody can suggest that in every case the rent was fixed on purely economic grounds. Nobody can contend where it was not fixed on economic grounds that it should be stereotyped on those uneconomic grounds. Obviously everyone should have a fair opportunity to bring the case before the court and allow the court to form its own view. The restraining provision in regard to costs would prevent people from bringing cases where the difference might be merely trifling.
I support the amendment proposed by Senators Sweetman and Kingsmill Moore. I do not know which of the two is the better amendment, but it seems to me that Senator Kingsmill Moore's is the wider of the two. I can cite a case which concerns myself. I own a house which is set to a close relative—my own brother, in fact—at a rent of £35 a year. That same place is sublet at a rent of £140. That is a definite case where if the rent was taken on the relevant date it would be a serious matter for me in the event of my wishing to set that house. The house was given entirely on account of family associations, and I am sure there are many such cases. I think the amendment is fair and just in every sense of the word and I urge the Minister to accept it. It would not inflict an injustice on anybody except on the owner of the house who, because of family affections, set his house to relatives at a lower rate.
I accept what Senator Kingsmill Moore has stated, that there are many people who own houses who do not try to get the last penny from tenants but, speaking generally, I think it will be admitted that the rents that were charged on non-controlled houses were the highest rents that the landlords could get. However, there does appear to be a case for consideration in regard to the examples mentioned by the Senator and I shall look into the matter to ascertain if there are any cases in which the rents might be too high or too low. I am naturally reluctant to destroy the certainty we have already provided for in the Bill, but that cannot be helped. I shall see what can be done in relation to this matter before the Report Stage in regard to these two points.
I take it that amendment No. 27 in the name of Senator Kingsmill Moore is not being moved?
I am not moving it in this sense: The Minister has already undertaken to consider the matter, but I want to make one remark on it. Since the Minister suggested that he would look into it, I have given some further thought to it and consulted with other people informally as to what would be the best method of fixing the rent for these flats. There are a lot of small matters into which I do not propose for a moment to go now, but I do urge on the Minister again that if he wants to start on the basis which has already taken into account the elements referred to by Senator Sweetman—that is to say, the difficulty of getting payment, the cost of repairs, the difficulty of getting people out and all the various elements that flat owners have to deal with which render these lettings rather different from those of ordinary houses—that he can start with a basis which has already taken these matters into accounts, if he takes the national economic rent of 1941, that is to say, the notional economic flat rent of 1941, because if you can find out what such-and-such a flat would have been expected to let for in 1941 you have already a basis which has reference to the peculiarity of flats. There has to be added to that the extra cost of construction, and, I would think, one or two other elements, sufficient to ensure that there is a good solid inducement to people to create these flats. Since I was last talking, in an issue of the London Times there appeared an article pointing out the necessity of changing big London houses into flats and emphasising the point which I had made in the earlier debate. This is a universal problem, and I do think you will have probably to provide some little extra bonus or inducement over and above the rent which would have been arrived at in the way I suggested, in order to ensure that the flow of flats will go on.
I move amendment No. 28:—
In sub-section (2), page 11, line 39, after the word "rent" to insert the words "not exceeding the existing rent".
This is a very simple proposal, and it is not new so far as the construction of the Bill is concerned. This section deals with the considerable number of houses which would come under the provisions of the Act if they were not covered by Section 14 and the effective provision is sub-section (2), which says that the basic rent of premises to which this section applies shall be determined by the court. The court is perfectly free, having regard to certain directives in the section, to determine the rent. I simply want to get inserted in the sub-section this positive directive, that the court shall not increase the rent. That is the net effect of amendment No. 28: that in fixing a rent it should be indicated to the court that the new rent fixed on an application under Section 16 shall not exceed the existing rent. This idea is already contained, in relation to another set of houses, in Section 29. I should like to refer the House to sub-section (1) of Section 29, paragraph (d), which says that when an application comes before the court, in case it appear to the justice that the lawful rent of the premises, if determined by a provisional order, would equal or exceed the existing rent, he shall dismiss the application. So that where an application comes before a district justice in respect of small premises to which Section 28 of the Bill applies, there is no option. If the justice cannot reduce the rent, there is no option but to dismiss the application. In other words, he cannot make an order increasing the existing rent. I simply want to apply that further. I want to apply it in respect of houses to which Section 16 applies, because it is the one group of houses in respect to which there is no yard-stick provided by which the court can determine what is a fair rent. I am quite certain the Minister will see the reasonableness of that proposal, and that it is certainly not his intention that the court should in fact make an order increasing the rent. I think he will agree that in that case there should be this direction in the section to the court, that it shall not make an order increasing the existing rent.
I think that the basis laid down for fixing rents in Section 16 is fair enough. The landlord is not allowed to increase the rent beyond a certain figure. If the tenant applies to the court of if the landlord applies and is able to show that he is not getting what he would be entitled to do on the basis laid down, I think he is entitled to get an increase. The other type of case deals with a different category of persons altogether. Chapter XIII cases are those of poor people who live in slums. They were the people that were under that particular chapter, where they got cheap law, and all the rest of it. In the case of the ordinary tenant in a house subject to Chapter II, I do not see what grievance he will have if he is required to pay only on the basis laid down in the section. I do not think it would be fair at all if he could get a reduction. I am not prepared to accept the amendment.
The Minister is aware that he has already provided in Section 20 procedure by which the landlord can arrange the rent. There is machinery in this measure for securing that an increase can be obtained in certain circumstances. That is set out in great detail in Section 20. I am dealing with a case in which a person applies to the court to fix the rent in respect of premises for which there is no firm method to guide the court in relation to what the fair rent should be. The court shall simply satisfy itself that the immediate landlord of an occupying tenant might in the year ending 7th May, 1941, reasonably expect a certain rent. The court is not obliged to have regard to the rents payable in respect of similar houses in a similar neighbourhood. The court is not restricted in any way in determining on such an application what the rent should be. It will satisfy itself as to what the landlord might reasonably expect to get for that house in the year ending 7th May, 1941. It does not matter that the case of a similar house let on 7th May, 1941, for £100 is put in evidence. The court is still free to say that the landlord might reasonably expect £150 for this particular house, the subject of the application, if he were renting it at that date, and may fix the rent at £150, although at the date of application the tenant is paying £100. It may be said that of course the court will use discretion; that the court will exercise its functions in an intelligent manner and in a judicial manner. I am not challenging that, but what I am suggesting is that a judge in a court is still an ordinary man like any of the rest of us. He will have prejudices. He may think, as Senator Sir John Keane would think or as Senator O'Reilly would think, that the landlord could never get enough.
I do not think that at all.
Well, I do not say that Senator Sir John Keane thinks it, but a judge might possibly think that a landlord could never get enough for the greater benefit he is conferring upon society by building houses.
I never said anything of the kind.
I am not accusing the Senator of saying it, but a judge might say it, and still be held to be acting reasonably. He might also take the other view, that the landlord is the enemy of society and should get nothing. I am merely pointing to the fact that the gentleman who occupies the judicial bench is still a human being, and if there is no code by which his conduct is to be governed then he will act as he thinks right, and what he thinks right will be conditioned by his environment, his antecedents and so on. That is the reason why we take great trouble, in debating Bills in Parliament, to make sure that there are certain stated rules to guide the court. We endeavour to ensure that the court will not be free to decide what it likes, but must decide according to the set of rules in which we prescribe what is the right thing to do. I am endeavouring to get a rule inserted into the sub-section which will direct the court that in no circumstances, on an application of this kind, shall the court make an order increasing the rent. I would suggest that that is not an unreasonable proposition, and that if the Minister and the House refuse to accept it we will have amending legislation coming up within the next 12 or 18 months, when there will be many cases before you of most extraordinary decisions on applications under Section 16.
Senator Duffy uses the analogy or the supposed analogy between the case he is making and conditions under Section 29, sub-section (1) (d), but the fact is that under Section 29 (1) it is provided that "in case it appears to him that the lawful rent of the premises, if determined by a provisional order, would equal or exceed the existing rent, he shall dismiss the application. There then is where the humanity of the court is provided for. If the tenant foolishly puts in an application which might result in an increase being given rather than a decrease, it is provided in that particular case there will be no increase, and in fact that the application will be dismissed. There is, therefore, no analogy between the two cases. It is actually to protect the tenant that Section 29 (1) (d) is provided.
There is an aspect of this matter which may not have occurred to Senator Duffy. If we were to put such a provision as that in this Bill, the tendency then would be for landlords to charge the stiffest rents they could possibly get, so there would be no question of their getting arrears. If the case did go to court, the landlord would get at least what the house would have fetched if it had been let on 7th May, 1941. What I am saying now is that the tendency would be towards stiffer rents, and then if the tenant felt a grievance let him go to the court. All he would get then would be the fair rent. I am not accepting the amendment, but I am pointing out to the Senator that that danger would be there. There would be an inducement to the landlord to look for the highest rent that he was satisfied that he could legally get on the 1941 basis.
I am prepared to accept that risk.
I am not, though.
Now we see where we stand.
Amendment No. 29 has already been withdrawn.
SECTION 17.
I move amendment No. 31:—
In sub-section (2), paragraph (c), page 12, line 20, to delete the word "eight" and insert in lieu thereof the word "twelve".
I just want to explain again the argument in favour of having a differentiation between the percentage that is being allowed here and in the case where damage is wilfully caused by the tenant. The idea here was to encourage the tenant not to cause wilful damage. As the Minister has already given some sort of provisional assurance that this general question of repairs and damages will be looked into, I do not propose to press the amendment.
With regard to amendment No. 32, Sir, standing in my name, I think it was discussed sufficiently last night, and I do not propose to move it.
I move amendment No. 33:—
At the end of sub-section (2), page 12, to add a new paragraph as follows:—
(e) (i) in case the landlord is responsible for the whole of the repairs to the premises, an amount not exceeding 1/12th of the basic rent;
(ii) in case the landlord is responsible for part only of the repairs, such lesser amount as may be agreed on between the landlord and the tenant or as may on the application of either of the said parties be determined by the court or in the absence of any such agreement or determination an amount not exceeding 1/24th part of the basic rent.
Although this particular matter was not discussed last night, I made some remarks referring to it. I shall not repeat what I said last night. However, there is another aspect of this question which I should like to press on the Minister, and it is this: If the owners of these big houses are not going to get anything for the repairs they carry out, then, human nature being what it is, they will hang on with a lick and a scratch here and there, and will not carry out proper repairs, and that is not good for either the tenant or the landlord. I suggest, therefore, that if the Minister and his Department, or the tenants concerned, want to have these repairs carried out, there will have to be some kind of inducement to the landlord to get them carried out. It has been suggested that if you give a kind of automatic allowance to the landlord for repairs, he may pocket it and not carry out the repairs. Therefore, I suggest that the Minister should accept an amendment, something on the lines of sub-section (3) (iii) of Section 8 of the 1923 Act, which provided that where the landlord had expended an amount exceeding one-third of the standard rent in one year, or, during the period of the two years concerned, should have expended an amount exceeding two-thirds of the standard rent, on putting the dwelling-house into a reasonable state of repair, he should be then given an amount not exceeding 15 per cent. of such excess or excesses of expenditure. The reason why the percentage was made so large was because it was given on the excess over a large fraction of the standard rent. I would suggest to the Minister strongly that, if he does not accept this amendment in its present form, he should bring in some such amendment on the Report Stage to the effect that if in one or two years there should be an amount expended on repairs exceeding a portion of the basic rent, the person concerned should be allowed to add on a sum representing 15 per cent. of the cost of repairs. I believe that that should be done.
I will examine that under Section 11, with a view to seeing what can be done.
I should like to make a few remarks, Sir, on this section. The section says that the expression "the critical date" means, in the case of premises to which Section 14 of this Act applies, the operative date—the date on which the Bill shall become law—and then the section goes on to say, in paragraph (d) that if the landlord, on or after the relevant date, and before the critical date, expends any amount on decoration or repairs on the improvement or structural alteration of the premises, a certain sum should be given. That is in paragraph (d). I do not see why the words "on or after the critical date" should be mentioned there, because, if the landlord had paid the money before that, I do not know why he should not be entitled to it.
I support Senator O'Dea there. I think he is quite right. The difference was in connection with the changing of the date. That made the difference there. It should be that any moneys expended since the date of stabilising the amount should be included.
I shall look into that.
Before the section passes, Sir, I want to refer to the question of vacancies. It does seem rather strange that, whereas, under the old Act, vacancies were allowed to be decontrolled no vacancies can be de-controlled now. The Minister has shown a very open mind in regard to the various amendments proposed, but would he allow vacancies to be decontrolled in the present circumstances?
I would not be prepared to do that under the present circumstances. We must have some kind of control because, generally speaking, everybody wants to get what they can get. So, I am afraid that we could not do anything about that at the moment, but after a while we shall try to de-control such houses.
So long as the Minister keeps this control of vacant houses, no such houses will be let at all, and I think it is most unjust and against the public interest that every vacant house should be put into the public market in this way.
There is another aspect of this which I think might be pursued, and that is that when a house becomes vacant, the owner, who is prohibited from getting an exorbitant rent, may attempt to sell the premises—the idea being that he will sell it at an inflated price. I was told recently of a case of a house which was bought in 1939 for about £800 and was sold the other day for something like £4,500. I suggest that if the idea here is to protect the public interest, the Minister should step in and control the selling price of such premises. Senator Sir John Keane is thinking of an individual who got a monopoly, and who will exploit it.
I am afraid that does not come within the compass of this section. This deals with rent, and not with the sale of houses.
I agree. The purpose of the restriction to which Senator Sir John Keane adverted on Section 17 is a matter of public interest. I am arguing that the purpose of this Bill, particularly Section 17, is to protect the public. I am arguing also that Senator Sir John Keane's proposal amounts to this, that a person should have a free hand to exploit property, no matter how the public interest is prejudiced. I throw out the suggestion, that if the Minister is swayed by such a claim, what he ought to do is, not what Senator Sir John Keane proposes, but to take additional powers, perhaps in another Act, to restrict the price at which houses could be sold. That would prevent houses for letting being withdrawn.
I move amendment No. 34:—
In page 12, line 60, to delete the word "fourteen" and insert in lieu thereof the word "twenty-eight".
This is a small concession that I ask, and I hope the Minister can see his way to grant it. In the case of a big estate 14 days or 28 days might not be a serious matter, but there are many cases where widows and poorer classes of landlords, if unable to reply, might have to suffer a penalty of so many pounds. The suggestion is that the time for reply should be extended from 14 to 28 days, and in the event of non-compliance, that the fine should be reduced from £10 to £5. I suggest that what is proposed in the amendment will not inflict any hardship on anybody, whereas if the section is allowed to stand, it might inflict considerable hardship on large numbers, particularly on the poorer class of house owners. Incidentally, I think it would be a great blessing if we could agree to omit the term "landlord". In view of its connotation in our national history the use of this term causes a certain amount of resentment, and tends to prejudice our judgment with respect to legislation affecting the interest of owners of property.
What about the profiteers?
I appeal to the Minister to consider this amendment sympathetically.
I will agree to the 28, but I do not see why the fine should be reduced.
I think 21 days would be a reasonable time. Bear in mind that we are asking landlords to supply information already in their possession.
I think 28 days is a reasonable period.
I take it that the penalty is not being reduced?
No.
Does "procurement" include procurement even if a person has to pay to get information from somebody else? I am thinking of a case where information has to be got from another solicitor. Who is to pay him? Is the person seeking the information bound to pay the other solicitor's costs?
I will have that inquired into.
I think all that a person would have to say is that he did not know what the rent was, but that it could be found out by writing to So-and-so.
I will examine the matter.
I move amendment No. 36:—
Before Section 20 to insert a new section as follows:—
(1) There shall be implied in every contract for the sale of controlled premises (if not already expressly included) a provision binding the vendor to give to the purchaser any information in the vendor's possession or procurement requisite to enable the purchaser to determine the basic rent of the premises being sold or any part thereof.
(2) Every stipulation in a contract for the sale of controlled premises whereby the purchaser is precluded from making requisitions as to the matters mentioned in sub-section (1) hereof, shall be void.
I want to ensure that the same provision applies here as in the case of registered land. The section is taken exactly from Section 15 of the Registration of Title Act, 1942, which the Minister piloted through the House. There is a provision there that, on the sale of registered land, the vendor must supply to the purchaser any information in his procurement which affects registered land under Section 47 of the Local Registration of Title Act, 1891, or Section 16 of the 1942 Act, without appearing on the folio. The Minister put that provision in the Registration of Title Act, and I suggest that if it were put in here it would save a great deal of trouble, by assuring that when a tenant wanted information, the landlord would give as much as possible prior to his acquiring the premises.
I agree that this is a very proper kind of provision, but I wonder if this is the right way to get it. This seems to me to be a temporary measure relating to the control of rents by placing restrictions on the letting of houses. It seems to me that a provision of this kind should not be restricted merely to a temporary legislation, but should form part of permanent legislation.
I think Senator Sweetman might have put something more into it. Suppose a man has sold, and it transpired that he was a statutory tenant, but did not supply information to show that he was, as a statutory tenant he would not be entitled to any money for his tenancy. Perhaps the Minister will consider both questions.
I will examine the matter. I do not say that I am accepting the amendment. I will go into the question.
I move amendment No. 37:—
In sub-section (1), line 59, page 14, to delete the word and figures "(1923 Act)".
I think that Senator Duffy has put down an amendment identical with mine. My anxiety on this whole Bill is to be fair between both classes, and I cannot see why the tenant of a non-1923 Act controlled premises should not have the same remedy if the premises are not kept in repair as the tenant of pre-1919 built houses. It seems perfectly reasonable to me that tenants should be able to call landlords to book for their default, and I would be very interested to hear the reason for the differentiation. Until I hear that, I do not want to waste the time of the House.
The way it appears to me is this: when we come to deal with large houses to which this Bill applies we find the position that if the poor law valuation of a premises is, let us say, £27 or £30, Section 22 applies in relation to repair, but if the valuation happens to be £31, it does not apply. These houses of the higher valuation are all old houses. Many of the houses which are dealt with under this Bill are probably 200 years old. Some are in excellent condition; others are obviously neglected, and in many cases are becoming slums.
Many members of this House who know Dublin are well aware that, even in our time, some of the fine old Dublin houses have become slums through the neglect of their owners. That is true in places like North Great George's Street, shall we say, and it is becoming so in other areas where there are houses of some of the best workmanship in Ireland falling into decay. I think it is a mistake to make a distinction between the 1923 Act houses and the non-1923 Act houses, and when the Minister drafted the section himself, that distinction was not made. Neither was it made when he presented the Bill to Dáil Éireann for Second Reading.
The reservation was introduced on the Committee Stage or the Report Stage, and I fail to see any grounds for it. Certainly there was nothing said when the amendment was being brought in that would satisfy any reasonable person that there were substantial grounds for it. What we are dealing with here is not merely houses built or flats reconstructed during the last 27 or 28 years, but, as I have said, the older houses of the higher valuation. I would suggest to this House that it is a great mistake to accept this condition and what Senator Sweetman proposes is that we should revert to the position which obtained when this Bill secured a Second Reading in the Dáil.
The reason this is confined to 1923 cases is that there is a definite and specific allowance for repairs to 1923 controlled houses. It is specifically and definitely mentioned that an allowance is made in the 1923 Act cases to enable additions to be made to the rent for repairs. If they have not done anything, and if the place has got so bad that it is in rack and ruin, there is no justification for giving this addition permitted for the purpose of repairs. In other cases, if a house gets into a bad state such as mentioned here, there are other remedies open to the tenants, but to say that we are taking something from the rent which does not specifically give something for repairs, I do not think we would be justified. That is why I excluded the 1923 controlled houses, and quite justifiably I think.
I think you should include them and include the repairs.
Is the amendment being withdrawn?
Yes, if Senator Duffy withdraws it.
That is O.K. It is all right with me.
I move amendment No. 38:—
In sub-section (2), lines 2 and 3, page 15, to delete the words "by the production of a certificate of the sanitary authority or other evidence."
This amendment and amendment No. 40 hang together. The Minister has drawn this section on the lines that the certificate of the sanitary authority is absolutely conclusive, in the court, and the court cannot in any way question that certificate. I suggest, therefore, the deletion of the words in the second sub-section and the insertion of a new sub-section which will mean the production of a certificate will be prima facie evidence and the owner of the house will have an opportunity of showing that there is something wrong with the certificate and that it was produced by mistake or something like that. The section as it stands would mean that a sanitary authority was in fact the final decider and I do not think the Minister can do anything like that.
As the section stands the certificate would be conclusive. I think that it is desirable that it should not be so.
Speaking on this, I lay myself open, of course, to the charge of being an owner of slum property, but I do own a class of property and I have experience of it in small towns. The houses, undoubtedly, are not up to the latest standard of housing, and I see the possibility of a sanitary inspector coming straight from flush, with a lot of technical knowledge from some college, and with a hotheaded enthusiasm, saying that these houses are quite unfit to live in.
They are not that, but they are not, undoubtedly, good houses. The tenants pay about 2/6 weekly rent, and without going into any personal element, I can say that the landlords of such houses are really maintaining them largely out of charity. I can prove to anyone who wishes to look into it but there is no surplus rent whatever on these class of houses when you carry out repairs. I do not want to stand over houses of this type that are not water tight and without adequate flooring and reasonable amenities, but in many cases the windows of these houses are very small and the light is not what you would expect to find in new houses.
I can see the sanitary authority coming along and saying that it is quite inadequate and that new windows must be put in if the rent is to be maintained. Those windows are 50 to 100 years old, and if some sanitary officer says to me that I must replace them, I can tell him he can have the whole house if he wants it, that I will simply give it up because it is worth nothing to me. I am keeping it only because it is traditional to have some accommodation for those people who can only pay a low rent. If that happens the whole thing will be abandoned and these houses will be a constant source of expense to keep up. That is the effect of this proposal if you do not allow the general condition of that class of property to be taken into account. I am not standing over houses in disrepair, but I am asking that these smaller houses should be taken into consideration and that the standards of modern houses should not be applied to them.
Would the Minister say whether this is a new provision or whether it is just a continuation of an old provision?
It is an old provision.
Can the Minister say if there was any case of hardship reported to him in the administration of the law as it is?
Is that in the law as it stands now?
Yes.
My attitude is that if there is something that we can do we will accept it, but, generally speaking, I am trying to keep the old Act as it was.
Do I understand that the Minister has accepted my amendments?
I accept the principle of it.
That is the principle of amendments Nos. 38 and 40?
I am bringing in an amendment to deal with the point.
May I ask is it not possible in the country to challenge the certificate of a sanitary officer?
It will be as a result of my amendment.
The Minister agrees in principle to the amendment which provides that the sanitary authority's certificate can be challenged.
I move amendment No. 39:—
In sub-section (2), page 15, line 11, after the word "rent" to insert the words "where in respect of such premises the lawful rent has been determined and in any other case not exceeding 20 per cent. of the existing rent".
This sub-section enables the court, on an application being considered, to order that the rent to be paid for the premises to which the application relates will be reduced by such an amount not exceeding 20 per cent. of the lawful rent as the court thinks proper. It does occur to me that there may be cases to which this sub-section applies in which the lawful rent has not been determined. I am not so sure — the Minister will probably correct me if I am wrong—that it is not conceivable that cases would come before the court in which sub-section (2) may not apply, bearing in mind that, as the section stands, it applies to controlled 1923 Act houses. That means to say that it will bring in a number of houses constructed before the 4th of August, 1914, which were not subject to control during the past 20 years, that is to say, houses the valuation of which exceeds £30 in Dublin and exceeds £25 outside Dublin. These houses are going to be brought in now. The question is whether a case can come before the court under sub-section (2) where the lawful rent has not been determined, and what I am endeavouring to secure is that, where the lawful rent has not been determined, then the penalty shall be 20 per cent. of the existing rent, whatever that may be.
I do not think that this is necessary. If such a thing as the Senator has mentioned could happen, the court has power under Section 55 to fix the lawful rent before deciding what the reduction will be. The last clause in Section 55 gives it that power. It is most unlikely that such a question will arise but if it does arise sub-section (5) of Section 55 says:—
"In addition to the powers specifically conferred on the court by this Act, the court may deal with any matter arising under this Act whether a dispute has or has not arisen in relation to that matter."
That gives the court general power to deal with a matter of that kind if the necessity arises.
I should like the Minister to reflect a little bit. He happens to be Minister for Justice and he is in a better position to reflect on what the court would do in a case of this kind. A positive penalty is provided in this section in respect of certain premises. Let us assume, if I may do so without being disrespectful, that Senator Sir John Keane were defendant in an action under Section 22. He would not hesitate to brief the most expensive and most eloquent counsel at the Irish Bar, to go into court and argue that, in its wisdom, the Oireachtas provided a penalty in respect of a house for which the lawful rent had been fixed and also in its wisdom refrained from providing any penalty where the lawful rent had not been fixed. I submit to the Minister that this is a case in which the court would be inclined to say that Section 55 does not apply. It has a different application altogether and the court would accept the eloquent appeal of Senator Kingsmill Moore that this was a wise House in making a distinction between two classes of houses, one in which the lawful rent was fixed and one in which it was not fixed. I ask the Minister not to brush aside this point as easily as he appears to have done.
Is the amendment withdrawn?
No, I think the amendment is one of substance.
I do not think it is necessary at all.
Is the amendment being pressed?
Yes.
Amendment put and negatived.
Amendment 40 has already been disposed of.
I move amendment No. 41:—
In sub-section (3), paragraph (b), page 15, line 26, after the word "rent" to insert the words and brackets "or of the existing rent (as the case may be)".
The same principle is embodied in this amendment as in amendment No. 39.
It is consequential on amendment No. 39.
No, it is the same idea but it is not consequential. The argument I have used in relation to the previous one applies to this amendment. It is the question of a house in which the lawful rent has been determined and of a house in which the lawful rent has not been determined. The section applies in one and not in the other.
I think, Sir, the remarks I have made on the previous amendment apply also to this. It cannot stand by itself.
I move amendment No. 42:—
In sub-section (4), page 15, to delete the words from and including the words "but if" in line 31, to and including the word "certificate" in line 32, and to insert in lieu thereof the words "but on the hearing of an application under this section the court may in addition to any other Order declare that".
This to my mind is one of the most important amendment that I have moved. It might appear to some Senators that I had some personal interest in increasing rents and getting increased allowances for repairs, but in regard to this particular matter I should like to say that I have no personal interest whatever. I have discussed this sub-section with a great number of people — some here in Dublin City and some in the provinces — and solicitors and others, as well as householders, seem to be of the opinion that if this sub-section is allowed to stand as it is there is going to be a very serious amount of trouble. There will be thousands if not hundreds of thousands of certificates applied for. While the lot of the owner of property is not so far a very happy one, his lot will become quite an impossible one should this sub-section stand as it is. My amendment proposes to delete the words from and including the words "but if" in line 31, to and including the word "certificate" in line 32, and to insert in lieu thereof the words "but on the hearing of an application under this section the court may in addition to any other Order declare that" the tenant shall be entitled to deduct the fee from any subsequent payment of rent. That seems to be a very fair proposal, because in the normal course or at least in a very large number of cases the matter will go before the court, and it does seem extraordinary that a tenant can, the moment he gets the certificate, make the deduction, and so prejudice the case, as it were, in advance, assuming that all the rights are on his side. This is a small concession, and I would very strongly appeal to the Minister to accept the amendment.
I think that is reasonable. I will look into the matter.
I should like to be taken as supporting that amendment.
I move amendment No. 43:—
Before Section 23 to insert the following new section:—
If the rent of any controlled premises in respect of any period whether before or after the passing of this Act exceeds the lawful rent the amount of the excess shall, notwithstanding any agreement to the contrary, be irrecoverable from the tenant of the premises.
This is a proposal to substitute one form of section for another. In other words, what I am proposing is that we should drop Section 23 as it appears in the Bill and insert the section which stands in my name on the Order Paper. It seems to me that the section as it appears in the Bill is roundabout and cumbersome. I do not know whether it is necessary that sections of Bills should be drafted in this cumbersome manner. I think it is not. I imagine we could get simple language to convey precisely what we want done. It is desirable that we should do that when we are dealing with legislation affecting the ordinary, simple people, who will need to have recourse to the courts to defend their interests under this Bill when it becomes law. Apart from that, I am taking exception to the limiting provision of the section itself. The section provides that if certain rents exceed the lawful rent the excess is irrecoverable by the landlord from and after the date on which this Bill becomes law. It also provides that where the excess rent was paid by the tenant it is recoverable by him only from the date on which the basic rent is fixed. I cannot follow why an illegal payment is sacrosanct if it occurred before the date on which this Bill becomes law. In respect of a large number of premises to which the Bill applies, control has, in fact, existed since 1915. In respect of all premises coming under this Bill which were erected before 2nd April, 1919, irrespective of the valuation, they were all covered by the Rent Restrictions Acts up to 1926. Certain premises now coming under the Bill were decontrolled under the Act of 1926, but an Emergency Powers Order was made on 1st February, 1944, that is two years ago. Still, notwithstanding the operation of the Emergency Powers Order and the Rent Restrictions Acts, under this Bill we are allowing people who have been overcharging to retain the amounts overcharged, and we are providing that the tenant may not recover the overcharge when the amount of it is determined, unless it is an overcharge in respect of a date following the passing of this Act. The amendment I propose is a simple one. It can be readily understood. It provides that if the rent of any controlled premises in respect of any period, whether before or after the passing of this Act, exceeds the lawful rent, the amount of the excess shall, notwithstanding any agreement to the contrary, be irrecoverable from the tenant of the premises. There is another amendment later dealing with the recovery by the tenant of moneys unlawfully demanded from him by the landlord.
I am not prepared to accept this amendment. There is a difference between the two types of cases. There are Section 8 and Section 14 cases. In this case the rents are known or can be discovered. The landlord can find out what the rent is, and if he overcharges he is deliberately doing it. In the other case, the rent is not known. It has to be fixed. It is up to the tenant, if he thinks it too much, to move in time. If he delays, it is his own lookout. I do not think it would be fair to the landlord to ask him to pay back an excess rent that had been charged if, in fact, the rent had not been determined. I think that would be a most unfair thing to do.
The Minister will recognise, of course, that in respect of the houses to which he refers—that is, premises to which Sections 8 and 14 apply—the amount that is overcharged before the operative date, which is the date before this Act becomes law, is not recoverable from the landlord. That is the position, unless the Minister deals with it later on.
No. There are rights surviving there, and they are governed by the Interpretation Act—the cases coming under Sections 8 and 14.
The wording here in the Bill is:—
"In respect of any period beginning on or after the date on which the basic rent is determined".
Surely, the Interpretation Act would not operate there?
The rights that he had under the 1923 Act are still preserved here.
Is that so?
Yes. The rights that he had then are retained by virtue of the 1923 Act.
I think, Sir, that amendment No. 44 falls with the previous amendment.
With regard to Section 24, Sir, I think we should look at the practical implications of sub-section (2) which has to deal with the question of a person making entries in a rent book or similar document, because there might be some injustice there. I have known of cases where a rent collector made wrong entries in the rent book, but the landlord did not know anything about that, and when the matter came to light, the landlord accepted the tenant's word and was satisfied that there was fraud on the part of his employee. Is it not, however, the practice that the tenant keeps the rent book, and, therefore, if an entry is wrongly made in the rent book, surely the tenant should point it out to the collector? Surely, it should be the business of the tenant to point out to the collector immediately that the entry is wrong, and then it can be brought immediately to the attention of the landlord or his agent that a wrong entry has been made. It seems to me to be rather unfair that the landlord should have to suffer for improper conduct on the part of his employee. I do not think it should be a matter of an automatic penalty, so to speak.
I do not think that Senator Sir John Keane has quite understood the section. It appears to me to be quite clear that it is only the person who makes the wrong entry who can be fined.
Yes, that is quite right, and it is the old provision.
Yes, but I want to be clear about sub-section (1) of this section. Can the tenant claim for the over-payment of rent after he has terminated his tenancy?
I cannot answer that offhand.
That was decided under the existing Acts—that he could not.
This is my point of view, and I think it is a question that should be put beyond yea or nay, and not be left as a question to be again decided by the court. There is an ordinary provision in the next section to the effect that if the tenant can only get six years' arrears of rent, overpayment cannot be recovered after he has left the premises. I think it should be a shorter period, and I think that we should limit this thing in some way. I know that a decision was given in some such case, although I cannot recollect it at the moment, but I think the decision was that the tenant could not get anything at all after he gave up possession. Perhaps we can discuss that matter on the Report Stage, but I think that the wording here is not quite correct.
We have a decision here in regard to that matter:—
Terry v. Molloy, 73, Ir. L.T.R.:“The tenant, having ceased to occupy the premises in question, did not thereby lose his right to recover over-payments.”
That is different from my recollection. However, I think that it may have arisen from the fact that the tenant could not apply for the standard rent after he had given up possession. I think that Senator Kingsmill Moore should know about that.
As a matter of fact, I had a case of that kind myself.
Was it reported?
I cannot remember.
I think it should be specifically stated in the Bill.
On this section, Sir, I think the Minister might have followed up what he said in regard to the previous section, and that is that there should be some discrimination in the matter of the grossness of overcharging. I am sure that the Minister is as well aware as I am that such things have occurred.
It is very complicated.
Yes, it is a complicated matter, but I think that if the overcharges are more than 33? per cent., it would be reasonable to make the time 12 years instead of six.
As I have said it is a very complicated matter.
I move amendment No. 45:—
In page 16, in line 34; and also in line 38, to delete the word, brackets and figures "(1923) Act".
When the Bill was originally introduced it provided that the section would apply without any reservations to small premises. During the Report Stage in the Dáil the Minister introduced a proposal which had the effect of excluding certain premises from the provisions of Chapter 3, small premises which were built or reconstructed subsequent to 2nd April, 1929. The provision is going to exclude from the cheap procedure of Chapter 3 thousands of houses and tenements in Dublin, Cork and Limerick. It will certainly affect a very large number in Dublin, because, as is well known, considerable numbers of houses have been reconditioned and turned into tenements during the last few years. All these premises will be taken away from the provisions of that chapter. I think that is a mistake. I know that there is a tremendous outcry amongst people affected or who believe they are affected by this exclusion. What is important about it is this, that if Chapter 3 applies to such houses, the tenants of which are usually persons without much spare cash, they are entitled to approach a District Court clerk to make a complaint which will be transmitted to the district justice and determined by him outside the court proceedings. It is going to be costly for both sides. By the amendment inserted in the Dáil every house constructed since 2nd April, 1929, or any house reconstructed into a self-contained flat or tenement is excluded. No reasonable grounds could be advanced by the Minister for doing that. Grounds for exclusion may be advanced by the Minister for Finance. If the Minister in charge of the Bill tells us that he was obliged to take out houses which are now excluded, but which were included in the original Bill, because the Minister for Finance was not willing to bear the expense which the proposal would have incurred, we know where we are. If that is the argument, perhaps we will be prepared to accept it, but it is difficult to know where we are if the argument is that, for some extraordinary reason, these houses were excluded, not on the ground of finance but on some other ground. If they were excluded on some other ground I should like to hear it. Large numbers of people are affected, and I urge very strongly, before the Bill leaves this House, that the provision should be restored to the condition in which it was when it originally reached the Dáil.
I am not going to accept the amendment. This particular chapter was designed to meet the case of the poorer sections of the community. In the beginning it was drawn too widely and, on re-examination, I was quite satisfied that these facilities would bring in a type of person who did not want them. These people have their rights under Chapter 2. There are special provisions in the Bill to encourage people, who feel that they have to pay rent that they ought not be paying, but who, for want of means, are afraid of the legal expenses to go to court. It was pointed out in the Dáil, and I was quite satisfied on re-examination, that if we left the provision as it was, we would bring in plenty of people in houses under £10 valuation who could take advantage of other parts of the Act. They are still covered if they feel that they are charged rents that they consider to be too high. This is a new idea, designed to help those who are generally referred to as slum dwellers. I am satisfied that by limiting the 1923 Act to cases of £10 and under, they will be dealt with. We definitely want to exclude the type of person I mentioned, who may be living in one of the houses that was not controlled until an Emergency Powers Order was made, and who may have a case. If that is so, that person can proceed under other parts of the Bill. I am not prepared to interfere. The Minister for Finance did not interfere in this matter at all. That is not my defence. I acted after full reconsideration, and I want to confine the provision altogether to slum dwellers who may need legal help but who are not able to pay for it.
The Minister discusses this amendment from the angle of valuation. He made the case that he does not want to bring in people living in houses of a higher valuation than £10 because they can afford the type of litigation provided for in Chapter 2. That is not the case I made. I have not asked that the provisions of the Bill be extended to anyone beyond the £10 valuation mark. What I am asking is that, within the £10 valuation, flats or tenements which were reconstructed since April 2nd, 1929, should be brought into the Bill. The line of demarcation is completely different. It is a question of excluding houses, no matter how low the valuation may be, if they were built since 2nd April, 1919, and of excluding flats constructed since that date and tenements created since that date. That is what is being done. Some of the people excluded may be living in a tenement the valuation of which may be £1. That does not matter; they are excluded in relation to the date of reconstruction, not in relation to the valuation. The Minister has been completely misled in relation to the effect of this measure. The exclusion is entirely related to dates, not to wealth or poverty nor to high valuations or low valuations. If the Minister would consider the matter, he would have to agree that a person living in a tenement which was converted in 1920, 1925 or 1930 would require the facilities provided by this Bill just as much as if he were living in a tenement constructed 50 years ago. The provisions of Chapter 3 are directed towards the financial circumstances of the tenant. It is recognised that, no matter what provisions you might make to protect the interests of tenants, they would be ineffective unless you afforded the tenants an opportunity of establishing their rights without incurring heavy legal expenses. That is conceded by the Bill so far as it relates to occupiers of premises which were built or reconstructed by the end of March, 1919. If there was any alteration since that date—if there was reconstruction in the case of a tenement or if a house was built since that date—the tenant, irrespective of the valuation of the premises, is deprived of the facilities afforded by Chapter 3.
While I dislike this whole procedure, I do feel that there is some ground for Senator Duffy's amendment. In justice, the Minister might consider it.
After that combination, he should.
I went into the matter very thoroughly and I am quite satisfied with the provision as it stands. I am not prepared to accept the amendment.
Tá
- Counihan, John J.
- Douglas, James G.
- Duffy, Luke J.
- Fearon, William R.
- Hayden, Thomas.
- Hayes, Michael.
- Keane, Sir John.
- Madden, David J.
- Moore, T.C. Kingsmill.
- Ruane, Seán T.
- Sweetman, Gerard.
- Tunney, James.
Níl
- Clarkin, Andrew S
- Concannon, Helena.
- Crowley, Tadhg.
- Hearne, Michael.
- Hogan, Daniel.
- Johnston, Séamus.
- Kehoe, Patrick.
- Lynch, Peter T.
- Magennis, William.
- O'Callághan, William.
- O'Dea, Louis E.
- O'Reilly, Patrick John.
- Nic Phiarais, Maighréad M.
- Stafford, Matthew.
- Summerfield, Frederick M.
I move amendment No. 46:—
In sub-section (4), page 17, line 6, to delete the words "not being a solicitor".
Is the Senator seriously moving this amendment?
I am, because I think, with all respect to the legal profession, that it does include certain people whose main interest is to promote their own welfare. Senator Sweetman knows quite well that in this city there is a gentleman known in the profession as "the ambulance chaser". As a matter of fact, a member of the solicitors' organisation asked me on a couple of occasions to give him some information concerning the activities of certain members of his own profession who he believed were trafficking in this practice of following the ambulance to the hospital to see if there was a possible action under the Workmen's Compensation Act or under common law. Are we opening a lucrative business to these people?
Lucrative?
The Senator knows very well that they are not going into this business for the love of God. They are going into it for their own profit.
Nobody goes into this sort of business to make a good thing out of it. Do not worry about that.
I am advised to the contrary, and if they do go into it and if we are going to make a prohibition against anyone charging for their services under Chapter III, then we ought to include the solicitors in that prohibition. As a matter of fact, it is known that the houses of the clients to which Chapter III applies have become a source of revenue for certain solicitors which it is difficult to describe as anything but a racket. If a person desires to rent a house in a certain part of this city, he can only get that house by going to the office of a named solicitor, and paying that solicitor a fee to prove an agreement which is in a printed form and cannot be altered. You cannot alter a comma of the agreement but you have got to pay the solicitor's fees, and the matter is causing a great deal of uneasiness, because many of these people feel that they can do their business quite well without going to a solicitor. People who are taking a small house at a £1 a week, on a week to week basis, feel they do not need this elaborate procedure of going to a solicitor.
They are not required to go.
In these cases they must.
They must go to the owner's solicitor but he is not representing them.
They must go to the office of a named solicitor and pay his fees.
He is the solicitor for the owner. They are not employing a solicitor themselves.
But they are paying him.
A different story.
I am trying to provide for cases in which people can get their work done through charitable organisations. They ought to be encouraged to do that.
Hear, hear!
And I suggest that provision for the payment of solicitors should not be inserted in this section. There are charitable organisations in this city served by well-known practitioners, both solicitors and barristers, who spend a night or two per week at offices of these organisations giving advice and legal aid free to poor persons in relation to various matters which affect the interests of poor persons. This service is given voluntarily by a number of well-known and, indeed, very busy legal practitioners. I want, if possible, to ensure that there will be no market opened up for the gentlemen who do nothing free for anybody, who are out for the profits which legislation unfortunately often creates in many spheres. I think it is a great mistake that, when the Minister was inserting this provision, which prohibits anyone from acting as agent for fee or reward, he did not exclude solicitors as well.
I do not think my friend understands the section at all or he would not have made statements he has made. The section, as I understand it, provides that any tenant or his agent, no matter who the agent is, can go to the clerk of the district court and ask to have a provisional order made. There is no necessity whatever to go to a solicitor for the purposes of that application. No solicitor need be employed at all for the purposes of the application. We know, and Senator Duffy knows, that people have organised tenants and made them pay much more than they would ever pay to a solicitor. They receive big fees as rent recovery experts or in some other capacity.
I shall deal with that in a later amendment.
For that reason, just as I am against Senator Duffy's amendment, I am equally for Senator Sweetman's amendment because if Senator Sweetman's amendment is not carried, the section will have little or no effect. All that will be necessary is that a man should call himself an association, get certain people to subscribe and then do this work for reward. The object of the section is to protect the tenant from charges by anybody and he need not go to a solicitor. I think it is a very proper and necessary section. If a man is well-off and does want the luxury of a solicitor, then the least he might do is to pay for the services of such a solicitor, but you will find that nobody will. It is not necessary that he should. These people will simply go to the clerk of the District Court and that is all they need do. Should there be an appeal by the landlord the court has power to order the State to pay the costs of the tenant. There seems to be no sense in the amendment. I do not think that Senator Duffy understands the meaning of the section. If he did he would not have proposed the amendment at all.
I have nothing to add to what has been stated by Senator O'Dea. I cannot understand why Senator Duffy put down the amendment.
Because he wanted to draw Senator O'Dea and myself. I was stupid enough to allow the Minister for Local Government to draw me yesterday, but I am not so stupid as to allow the Senator to do it to-day.
I move amendment No. 47:—
In sub-section (4), to insert after the word "reward" in line 8, page 17, the words:—"or is remunerated directly or indirectly out of the funds of any body, association, society or company of which the tenant has been or is a member, or to the funds of which the tenant has been a subscriber."
This is an amendment which I think is very necessary. The Minister, I am quite sure, is aware of the type of case I have in mind, and as there is a real necessity to deal with the scandal it is perhaps as well that I should explain the amendment briefly to the House. What happened, and what will happen if the sub-section is left as it is, is that a person will get three of his friends together and will say to them: "We shall form the Gardiner Street tenants' association. The three of you will form it and you will appoint me secretary of this association." Having appointed himself secretary of the association, he will then go and canvass for members of the association and will put it to the people whom he canvasses that the association will, through its secretary, lodge an application for him under this section, adding: "Before you join it, you must pay a fee of 20/-." The person thus going out to canvass for members will not be paid by the tenants. He will be paid by the association. Therefore the sub-section as at present drafted will not get him. If it were going to stop at that, it would be bad enough, but it can be very much worse.
What will happen further is that the secretary of the association, having got a number of people to join the association, and having filed on behalf of the tenants an application under the section, will come along and say: "This may not be heard for some time, and you would be a very unwise person if when that time came you had not got a satisfactory amount of your rent put by. The safest thing you can do is to pay that rent to me until the case is determined, instead of paying it to the landlord." That did happen under the previous Acts in specific cases. I know an instance where that did happen with one particular person under the 1923 Act at a time when, as the Minister can remember, there was a very great delay in the Circuit Court in Dublin. The court was heavily in arrears in dealing with Rent Act cases. The secretary of some of these associations did make suggestions that the rents of the premises should be paid to him pending the determination of the cases. Unfortunately, in some cases, some of these mushroom organisations carried on in that way and when the appeal came to be determined, the association and the secretary of it were not to be found. I want to make it perfectly clear that such a state of affairs cannot possibly arise under this section.
The Minister has provided in the sub-section that a person not being a solicitor may not act as agent on an application directly or indirectly in expectation of reward but I do not think that the sub-section as drafted would cover the case of a demand by an association or the secretary of the association. I have framed my amendment in such a way that if the inducement is to join an association on the pretence that the association will make the claim, then that equally will be looked upon as a racket, which is the only word I can use to describe accurately the abuses which occurred previously.
I am prepared to consider this amendment and, if I find it necessary to do so, I shall try to cover it on Report Stage.
While I am in agreement with the case made by Senator Sweetman, there is another aspect of the matter. I should not like to prevent a legitimate organisation, for instance, a tribunal, from taking any necessary steps to help members in this matter. There is a big difficulty there.
Surely the Senator realises that it would be very wrong for the secretary of a trade union to be paid just as a solicitor is paid?
Does this mean that a body like the Saint Vincent de Paul Society cannot act on behalf of a poor person?
They are not paid.
I think the Minister might examine that.
It is the secretary that would have to be paid, I think. That would not happen with the Saint Vincent de Paul Society.
I should like to ask the Minister one question on Section 28. I presume that when a fine is not paid there is, under the Summary Jurisdiction Act, power for the justice to impose imprisonment in default of the fine?
I understand that is the case.
I move amendment No. 51:—
In sub-section (1), paragraph (e), page 17, to delete in line 46, the words "he may for the purposes of this Act" and insert in lieu thereof the words "then, for the purposes of this Act, he may by the provisional order provisionally".
This is purely a matter of drafting. As the Bill was originally drafted it was open to the suggestion that, when the district justice had made an apportionment, even though it came before him on a fuller hearing afterwards, he would be bound by his earlier apportionment. This is to make certain that both the apportionment and the order are provisional.
I move amendment No. 52:—
In sub-section (1), line 56, page 17, to delete the words "without prejudice to any other manner of service".
Quite candidly, I do not know what the Minister had in his mind in regard to sub-section (1)—"without prejudice to any other manner of service". What other manner of service had he in his mind? If I knew that, I could deal with it.
I had no particular one in mind, but the justice might decide on some manner which I would not be aware of.
I think it is very undesirable to give that liberty, because the Minister will permit me to say that some justices sometimes take independent views as to the manner in which they should construe Acts. This is a serious order, and I think it should be served in the same way as a summons. I would press the Minister, therefore, to accept the amendment, or at least to consider it between this and Report Stage.
I will do that.
I move amendment No. 53:—
In sub-section (3), page 18, to delete all words after the word "premises" in line 2 to the end of the sub-section and substitute the words "to which this Part of this Act applies".
This amendment is intended to ensure that Chapter III will in fact apply to persons living in small premises. As the Bill stands now it seems to me that what is contemplated is that the tenant alone may initiate proceedings under Chapter III. The landlord is not entitled to institute any proceedings under Chapter III. But the landlord is not precluded from instituting proceedings under Chapter II in respect of houses——
The Senator is quoting Chapters. Is he right in that? Does he mean Chapters or Parts?
I probably misled the Senator by referring to Chapter III in this case. I meant Part III. I was referring to the procedure under the Chapter II earlier on. At any rate, the net point is this, that the tenant of small premises to which this Part of the Bill relates is entitled to what we can, I think, call for short costless proceedings to defend his interests, if he takes the initiative, but only if he takes the initiative. What I am endeavouring to do here is to provide that this Part of the Bill only will apply to small premises, so as to ensure that the landlord may not interpose before the tenant makes any move at all, and take proceedings on his own account. Let us see what happens. The landlord is a free agent to fix any rent he likes, whether it is a lawful rent or an unlawful rent. There is a method provided here for limiting his activities if he acts unlawfully, but we can only determine whether or not he is acting unlawfully when proceedings are taken in court to test the validity of his acts. In fact, there are two methods open to the landlord. He can go into court, under Section 9, I think it is, in respect of small premises, and ask the District Court to settle the rent of his premises.
The court proceedings will be reasonably expensive; in fact they may be unreasonably expensive in relation to the type of tenant concerned. But that is not the only method open to the landlord. He can serve a notice of increased rent under Section 20, and he can continue charging the increased rent unless and until the tenant takes proceedings. Of course the tenant in that case would take proceedings under Part III. As the Bill was redrawn in the Dáil, Part III applies only to tenements which are at least 30 years old. Some of them would probably be 300 years old. I am anxious that, so far as these premises are concerned, the provisions made under Part III will be a reality, and that the landlord will be precluded from taking proceedings to have the rent settled under any other part of the Bill.
I do not think this could be made more effective by changing the section. I think the section would be more effective if it was left as it stands.
But there is nothing under this part of the Bill to prevent a landlord taking proceedings afterwards in a matter of an increase of rent.
Let us suppose that the landlord himself may have doubts about the rent he has been charging, but the tenant does not move at all in the matter: what is wrong with that? In the other House it was more or less visualised that you might have a whole lot of people coming along from Winetavern Street, and so on, and saying that they could move under Part II of the Bill, but why should we deprive such a tenant, if there is such a tenant, of his rights? I cannot see the reason for this.
I think the Minister misunderstands me. What I mean is that proceedings in respect of small premises will be confined to Part III of the Bill. I have heard no objection to this, except in the case of a wealthy owner of slum property, who might move under Part II of the Bill, but my object, whether it is practicable or not, whether it is wise or unwise, is to ensure, if I can, that all the legal proceedings under this Bill, in relation to tenement rooms, 20 years old and over, the valuation of which does not exceed £10, will be brought to the District Court.
That does not come in here at all.
At any rate, the Senator has not brought it into his amendment, even if he meant to do so.
I formally move amendment No. 54, standing in Senator Quirke's name:—
In sub-section (1), to delete paragraphs (a), (b) and (c), page 18, and insert in lieu thereof the following paragraphs:—
(a) if on the hearing of the application it appears to the court that the premises are not small premises, the court shall revoke the provisional order with effect retrospectively from the date of the making thereof;
(b) in any other case, the court may, as it thinks proper—
(i) by order confirm the terms of the provisional order with or without modification, or
(ii) revoke the provisional order and make such new order in relation to the premises as the circumstances may require;
(c) if an order is made under paragraph (b) of this sub-section, then, as on and from the making thereof and notwithstanding anything in any other provision of this Act, —
(i) the said order shall have effect as the final determination of the District Court in respect of the matters to which the said order relates,
(ii) the provisional order shall cease to be in force, and
(iii) for the purpose of the application of Section 20 of this Act the tenant shall be deemed to have entered into an agreement with the landlord to pay in respect of the premises a rent equal to the lawful rent of the premises as determined by the said order made under paragraph (b) of this sub-section.
This is, in the main, a drafting amendment. It recasts paragraphs (a), (b) and (c) of sub-section (1) of Section 31 in what are considered to be better and less rigid terms than the existing paragraphs. The only change of any substance which the amendment makes is that it gives the justice, when dealing with an application by the landlord under Section 31, the additional power of revoking the provisional order and substituting for it such new order as he considers the circumstances may require. Under the existing provisions of paragraph (b), he can only confirm or vary the provisional order.
The amendment also remedies a drafting defect in the existing paragraph (a), by deleting sub-paragraphs (ii) and (iii). Provisions identical with these two sub-paragraphs furnish the grounds for the making of a provisional order under paragraph (b) of sub-section (1) of Section 29, and it is clearly wrong that the same provisions should be the ground for subsequently revoking the order under paragraph (a) of sub-section (1) of Section 31.
I support that amendment, because it is clearly necessary.
I move amendment No. 55:
In sub-section (1), paragraph (c), sub-paragraph (i), page 18, to delete, in lines 31 and 32, the words "a final determination by the Court of" and insert in lieu thereof the words " the final determination of the District Court in respect of".
This also is more or less a drafting amendment. As the Bill stands, it could be held that there could be no appeal, and the amendment says, in effect, that there should be an appeal to the Circuit Court.
I think I met that point in the amending section.
Oh, I am sorry. I did not realise that it was included, as my amendment had been put in before that.
It has already been agreed to.
I move amendment No. 56:—
To delete sub-section (3).
A new principle is being introduced in Part III. It is now proposed, we find, that the court should come to the rescue, as it were, of the poorer classes of tenants and enables such tenants to get justice, let us say, under the Act, and public funds are to be drawn upon accordingly. Now, I have great sympathy with the idea underlying that, because we know that many injustices do occur as a result of insufficiency of means to fight a case in court, but I should like to draw the Minister's attention to one fact. The District Courts have made mistakes in the past, and there might be an obvious mistake made in the District Court, in which judgment might be given in favour of the tenant. The landlord, being in a position to procure the best legal advice may know that the judgment of the District Court is wrong and he decides to take the matter to the Circuit Court. At this stage, I think it would be well if there could be some machinery, or something in the nature of arbitration proceedings, so that both the tenant and the landlord could be advised that if the case were brought to the Circuit Court, a lot of money would be lost, and that that money could be saved if some agreement could be come to between the parties concerned. As the section stands, the aggrieved person, who has got a judgment in the District Court, will, perhaps, be more stubborn about bringing his case to the Circuit Court since he knows that win or lose his expenses will be paid. I think that that could be avoided. There has been some talk about the St. Vincent de Paul Society intervening in such cases, and it seems to me that there would be a case for some such body to come to the rescue of such people, being acquainted with the character and prospects of the people concerned. That is the aspect of the matter which appeals to me, and I think it is an obvious one. It is quite obvious, it seems to me, that there might be many cases, also, where it might not be well to bring the matter again to the Circuit Court, and therefore I think this whole question should be a matter for further consideration. I do not want to press this, but I suggest to the Minister that it would be in the interest of tenants and of everybody concerned to have these cases examined and settled without having to go through this machinery of appeals, wherever that is possible.
I think it necessary to give the court power to have tenants' costs paid where a landlord brings an appeal. If a tenant brings an appeal he has to take the consequences. If every case of what is called a poor tenant under this chapter were to be appealed and if he was to be liable for costs, the whole of these proceedings would be useless as they would not be availed of. It is very necessary to give the court that power if we are going to help those people to have their rents fixed. I do not know how we could manage arbitration. It is better to leave this matter as it is. If the court upholds an appeal it should have power, in the case of a poor person, to have the costs paid.
Is it not true that this section favours the landlord?
In some ways it does. It might happen that a tenant would not have the money, and if he had not, the State would be paying.
Having now explained the object of the amendment I feel that I could not accept the responsibility of pressing it in view of the possibility that some poor person might be deprived of his right to secure justice. With the permission of the House I will therefore withdraw the amendment.
Does this not apply to a very limited class?
Very limited.
It is quite clear that the appeal must be on the certificate of the circuit judge.
I move amendment No. 57:—
In sub-section (1), paragraph (e), page 20, line 48, to delete the words "or to reside".
This provision relates to the rights of a tenant in circumstances in which the landlord might, under this Bill, recover possession of premises. For instance, in the case of a dwellinghouse, he is entitled to recover possession if the dwelling is reasonably required by the landlord for occupation as a residence for himself or for any person bona fide residing or to reside with him. That is opening the door for the recovery of premises not merely when a person is residing with a landlord, but when he is about to reside with him. That is going too far, and I suggest that the section should be amended in the manner proposed.
This provision is an old one, and I think it should be retained. The section puts many restrictions on the right to recover possession. These words were in the old Act, and I see no reason why they should be deleted now. We had a very long debate on this section in the other House. In its present form the section is much clearer and better than when the Bill was originally introduced. I do not think that there is any case for the amendment.
There is a great deal in what Senator Duffy said regarding the words "or to reside", and I ask the Minister to consider a redrafting of the section. A landlord might say that although he had no person residing with him, someone was going to reside for whom he wanted possession. It is a rather difficult question, and the Minister might reconsider it. I might mention that the section follows too closely a section of the Act of 1923. Clause (b) of Section 4 of that Act refers to houses or premises used for immoral or illegal purposes. In Coughlin's book a case of Foran v. Lee was cited. Mr. Lee, a tenant of a licensed house in Galway, in days when there was very little law, was convicted of selling poteen, and because he was convicted the landlord took an action against him long afterwards and got a decree for possession. Eventually the landlord himself became a rich man from the sale of poteen.
This all happened in Galway.
If any illegality has ceased and if the landlord's interests are not prejudiced by the Act, the word "illegal" should not be there. I ask the Minister to reconsider the matter. The phrase is used "in the employment of the landlord", while, further on, the phrase is used "in the employment of a tenant of the landlord". That is going very far.
The Minister should consider not merely this amendment but the amendment which follows and the points raised by Senator O'Dea. All those points link up in the construction of this section. The greater part of the sub-section, consisting of paragraph (e), was inserted in Committee in the Dáil. Practically all the amendments inserted there were, in my opinion, inserted to damage the Bill rather than to make it better.