I would like to ask the Parliamentary Secretary whether he would clarify a certain doubt which has arisen in the minds of some people. They are in doubt as to whether a landlord can claim additions for exceptional repairs where the basic rent was not determined at the time the work was carried out or was subsequently varied.
Rent Restrictions (No. 2) Bill, 1960—Committee Stage (Resumed).
Question again proposed: "That Section 10 stand part of the Bill."
I cannot see how that matter will arise. The Bill will determine the basic rent in all cases. From now on, the basic rent will be known by reference to the operative date.
Doubts had arisen in some minds about this matter, and I am glad that the Parliamentary Secretary has cleared it up. There is one other point. In this section landlords are debarred from enjoying the 12½ per cent. increase if they have not accepted a Government grant for repairs. It would appear that a landlord, because he did not want to put the Government to the expense and did not apply for those special grants, is debarred from enjoying that increase. It might be regarded as a kind of public service if a landlord did not apply for such a grant. But under this Bill, if he does not apply for the grant, he is debarred from enjoying the 12½ per cent. increase. I wonder is that quite reasonable? Should he be debarred from a benefit because he did not want to put the Government to expense?
The situation is as the Senator understands it to be. In the case of a landlord who expends moneys putting his premises into a reasonable state of affairs and who does not apply for the Government grant, he is not entitled to the 12½ per cent. increase. That matter was very carefully considered and I think the decision come to is a fair one. The way to look at it is that the landlord has got a fairly substantial increase in rent as a result of this special condition. From the point of view of the tenant, the rent has been fairly heavily increased and to give another 12½ per cent. on top of this fairly substantial increase would not be, in the opinion of the Government, quite fair. We have restricted the 12½ per cent. increase to the landlords who have applied for the State grant in this case.
I am grateful for the explanation, but I cannot see how it is deemed to be a virtue to take money from the Government— that is how I see it.
When the Government make the grants available, they assume that it is a good and proper and right thing that people should avail of them or they would not make them available. Whether a man is virtuous or not in accepting a State grant should not concern us at all. When he has not accepted a State grant, the increase is much higher than it would be if he had accepted it and therefore he is not given the 12½ per cent.
It is not a matter of whether a landlord has not accepted a State grant. It is not a grant that anyone can get. There are times when a landlord wants to do a particular type of reconstruction work and the Local Government inspector says that he should do another type of work altogether. The landlord may not want to do it that way and a grant will not be made to the landlord if he does the work his own way. It is not because he has not looked for it but because he has not done what the Local Government inspector required to be done that he will not be given the grant. We ought to be clear on that.
That is so. The circumstances in which a landlord will apply for a State grant and not get it would be fairly rare but in that case also the 12½ per cent. increase would not be given. It is the fact that the rent is increased substantially that we are concerned with and not the grant to the landlord.
There is a possibility that, through inadvertence, he might not have applied for the Government grant for building. This legislation would cut out people of that kind.
It should not. Even if he did not apply through inadvertence, he is still getting a much larger increase in rent than he would have got if he had applied for it.
Question put and agreed to.
Section 11 agreed to.
SECTION 12.
Government amendment No. 23:
In subsection (1), line 4, to delete "orally or in writing".
This is a purely drafting amendment.
These words are unnecessary.
Would it not be better to provide that the request should be in writing, and to leave out the word "orally"? Surely that would be more satisfactory? It seems to be a little casual not to prescribe exactly how the request should be made.
The ways of the draftsmen are wonderful, but I notice in subsections (2) and (3) a stipulation that it shall be in writing, whether the landlord or the tenant is concerned. Here the court is concerned and apparently the way in which a court does anything is a matter for itself and not for us.
Is it not also true to say that under Section 53 the court will make its own rules? When I saw this amendment, I was wondering was it contemplated that its procedure would be determined by rules of court made under Section 53. I thought that was why the Parliamentary Secretary was deleting it.
Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.
Question proposed: "That Section 13 stand part of the Bill".
The provisions of subsection (4) of this section are very involved. Would it simplify matters if the necessary notice in this section for all controlled tenancies, whether contractual or statutory, were simply seven days? That might save a good deal of writing, and it might save a certain amount of trouble generally.
We shall consider that.
The Parliamentary Secretary is prepared to consider that?
Yes.
Thank you.
Question put and agreed to.
Sections 14 to 20, inclusive, agreed to.
SECTION 21.
I move amendment No. 24:—
In subsection (1), (b), page 15, line 26, before "and" to insert ", supplying him with the particulars of the application,".
Perhaps the Parliamentary Secretary would give his views on the desirability of this amendment.
I do not think I need accept this amendment because I think it is simply not necessary. Indeed, it might be undesirable because anything which would tend to make it less likely that the tenant would be inclined to avail of the provisions of Part III would be undesirable. The information which the tenant gives to the district court with regard to the provisional order is very simple. He just gives the address of the premises, the name of the landlord, whether the tenancy is oral or in writing, and whether there is a rent book. I do not think that information is of any value whatever to the landlord and I do not think there is any necessity to supply it to him. However, if there is any desire to press the amendment, I shall certainly consider whether it could be included.
Certainly some landlords would consider it advantageous not from the point of view of whether there was an injustice, but simply that their position might be more clearly defined if this amendment or something of the kind were accepted. Perhaps the Parliamentary Secretary would consider it.
There is no great objection on my part. The only question is whether or not it is necessary and in that situation I think I could say we shall sympathetically consider whether it could be included on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 25:—
In subsection (1) (c), to delete subparagraph (ii) (I), page 15, lines 61 to 65, inclusive.
We cannot accept this amendment because we think an essential part of the provisions of Part III of the Bill is involved. If we delete this paragraph, the court will have no means of fixing the basic rents in these cases and for that reason we must insist that the paragraph remains in the Bill.
Amendment, by leave, withdrawn.
I move amendment No. 26:—
In subsection (1) (e), page 16, between lines 21 and 22, to insert the following subparagraph:
"(iii) there is material conflict as to any fact or figure between the particulars furnished by the tenant and those furnished by the landlord."
It seems to me it would be an improvement if this subparagraph (iii) were added where there is material conflict as to any fact or figure between the particulars furnished by the tenant and those furnished by the landlord. That seems to clarify the situation advantageously.
Again, I am not disposed to accept the amendment because the provisions of the section as they stand are quite clear. A district court may decide that the application should be heard in open court and formal evidence called if——
the landlord has claimed an addition in respects of moneys alleged to have been expended on improvements, structural alterations or repairs and the District Justice is not satisfied that the landlord's claim should be allowed without formal evidence and without giving the tenant an opportunity to contest the claim.
It would be difficult to visualise circumstances which that phraseology would not cover and, indeed, it is desirable that the least possible number of these cases are heard in open court. This is intended to be machinery whereby district justices will deal with the greater majority of these cases in accordance with these provisions and only in exceptional circumstances will they be heard in open court. For that reason, I think we should not increase the number of cases which the district justice would be obliged to hear in open court. I am reinforced in that opinion by the provisions of Section 23 where it is open in any case to the landlord or the tenant to apply in court to have the provisional order revoked.
Amendment, by leave, withdrawn.
Section 21 agreed to.
Section 22 agreed to.
SECTION 23.
I move amendment No. 27:—
In subsection (1), page 17, line 9, after "proper" to insert:—"but in any case with effect retrospectively to the date of the making of the provisional order."
I suggest we take amendments Nos. 27 and 28 together as amendment No. 28 is, to an extent, consequential on amendment No. 27.
The basis of this amendment is that a good deal of injustices may be caused by the fact that where an order is revoked, the provisional revocation order is not given retrospective effect. I know that at the word "retrospective" our hackles may rise, because we do not like retrospective legislation, but this is not retrospective legislation. It is not a matter of court decision. It is not that we wish to introduce retrospective legislation. We are enabling the law to take into account something that happened in the past. Even where a provisional order which drastically reduced the rent is subsequently revoked, the reduced rent remains the lawful rent during the interim between the making of the provisional order and the date of its revocation. This interim is often substantial, especially if the tenant appeals to the circuit court against the revocation. Some landlords consider that many tenants have been encouraged to apply for provisional orders simply for the purpose of availing of this temporary revocation of the rent. It is a device or a dodge which is legitimate at the moment but I do not think it should be encouraged. That is why the amendment introducing this restrictive clause is suggested.
There are two points to be considered. First, we are making a change with regard to this procedure. From now on the landlord will be able to come in, in the initial stages. He will be notified by the district justice that an application has been made for a provisional order. Before the making of the provisional order, he will be invited to submit any information or evidence he wishes. Therefore, the landlord will have a voice before the provisional order is made and will be able to supply the district justice with any information he wishes.
In those circumstances, it is very likely that the number of provisional orders which will have to be revoked will be much less. Therefore, there is all that less need for the amendment. Recent developments are such that we understand it is possible to modify a provisional order. As a provisional order takes effect from the next gale day after it is made, it seems clear that if the court confirms a provisional order with modifications, the modifications take effect not from the date of confirmation but from the date it is made.
It would be retrospective?
It would. If the court wants to make it retrospective, I think it is open to it to do it in that way. That is how the situation appears to me at the moment. From both those points of view, the amendment seems hardly necessary.
Amendment, by leave, withdrawn.
There is a further point in relation to Amendment No. 28, Section 26. This is slightly different. The amendment asks that the revocation will revert to the making of the provisional order. We would prefer to consider doing that in the case of fraud but not in the other cases mentioned. We shall consider that and probably bring in an amendment to do it.
Question proposed: "That Section 23 stand part of the Bill."
I want to deal with subsection (4). This is the subsection under which, where there are appeals from the district court to the circuit court under Part III, in certain events if the tenant is unsuccessful, the court may give costs against him to the landlord. In that event, the court may also recommend that these costs be paid out of State funds. It is also provided that part of the tenant's own costs, even where he is unsuccessful, may also be paid out of State funds.
That is a very desirable section in a Bill of this kind where the legislation is very intricate and complicated. I mentioned the matter on Second Reading. I expressed the hope that the Parliamentary Secretary might consider, in other kinds of cases—because of the nature of the law, the uncertainty of it and the difficulty of making it more certain—incorporating a new section which would provide that the High Court or, in other cases, the Supreme Court, where appeals are taken by way of cases stated, might be able to provide by their order that even a certain limited amount of costs involved in that kind of litigation would be paid out of State funds.
In a lot of such cases, particularly where it is legislation by the Oireachtas itself, quite apart altogether from ordinary common law—where the Oireachtas is not able, because of lack of foresight, which is understandable, or inability to find a precise form of words to express a particular point of view—it is quite unfair that the whole weight of having the law settled in a case of that kind should fall upon one or two individuals, the landlord or the tenant.
I think there is a very good case to be made for making some provision for the payment of costs in that kind of case out of State funds. That principle is not new. In England, to which I seldom look for precedents, there is a fund out of which the poor can be helped when they go to court. Even in this country, there are particular provisions in the rules of the High Court where poor people may sue as paupers —very few people want to do that nowadays—where no fees are charged to them by solicitors and Counsel and where the ordinary stamps and Court fees are not payable, either.
That is not the kind of position we ought to reduce people to but in some of these cases it is quite certain that if the costs of the litigation incurred by the litigants involved were to be paid they would be reduced to paupers. In many cases it means that the only person who pays costs is the landlord. I do not think it is fair or reasonable that a landlord should be put to what may be enormous expense, £500, £600, or £700, in having a point decided for the community at large. Some assistance should be given to him out of State funds. I do not know if the Parliamentary Secretary has considered the matter. On a Bill of this kind which has many complications an extension of the principle contained in subsection (4) is well warranted.
The matter raised by the Senator is really one more appropriate to the whole question of general law reform. It raises fairly fundamental principles. As the House will realise, it will have very important financial implications. Therefore, I am sure the House will agree with me that it is not really relevant to this Bill.
Our concern in this part of the Bill is the protection of a very special class of tenant—generally speaking, the poorer sections of tenants and tenants who are less well able to look out for their own rights. The provisions of Part III are designed to give a special measure of protection to this type of tenant. It is against that background that subsection (4) is inserted. Apart from whether Senator O'Quigley is right or wrong, I think it is not a matter we can appropriately go into here.
I am quite well aware that this matter would be entirely appropriate on the Courts of Justice Bills when they come before us but it is not at all inappropriate or irrelevant on this section because this section imposes a limit on paying costs up to the circuit court but in point of fact there are cases where the circuit court judges state cases for the decision of the High Court and they can go from there up to the Supreme Court. The costs in that kind of case are not provided for at all in subsection (4) although they may be incurred in relation to a person covered by Part III of this Bill, so that I think the Parliamentary Secretary might consider that particular case and consider an extension of subsection (4) to deal with it. So far as principle is concerned, the principle is established in this Bill of paying certain costs in cases of this kind and it is merely a matter of extending it.
I should like to make a point which was embraced in my amendments. I am sorry I was not here to move them but I was unable to get here at the beginning of the proceedings. I understand the Minister said that he would consider this point—that in the case of a provisional order being made—and that is what we are dealing with in Section 23—where the district court decides to revoke or modify that order, presumably the decision to revoke or modify is taken on just grounds and consequently it is being deemed that the original order was not wholly just in some respects, either to the tenant or to the landlord. Therefore, it seems only right that the final decision, as it were, should have retrospective effect.
Apart entirely from the question of justice, there is a second reason, I think, why that should be. It is that if you allow either the tenant or the landlord to get the benefit of an unjust provisional order—one that is eventually deemed to be unjust and is finally either modified or even revoked —while the proceedings are pending, then you will increase the amount of litigation by those who merely want that temporary benefit, and who will apply for a provisional order, have it made, and know they will get the benefit of it until such time as it is modified or revoked. Whereas if they knew that if eventually the provisional order was going to be modified or revoked and that the terms of the revision would be made retrospective, then the temptation to engage in litigation simply for the purpose of delaying the moment when the correct rent would be decided would be greatly lessened.
That applies both ways, to both landlord and tenant. Section 23 gives the right to the landlord or the tenant, in respect of any dwelling in respect of which a provisional order has been made, within one month to ask the district court either to modify or revoke.
I think, in all justice, there should be some kind of recognition of the fact that it is dangerous not to allow the district court to make its final findings retrospective in effect.
I should like the House to understand that the case Senator Sheehy Skeffington has made, whereas he says it applies to landlord and tenant, is essentially a landlord's point. The net issue involved is whether or not when the rent is reduced by provisional order subsequently revoked, the landlord will be able to come along and get from the tenant the arrears of rent for the intervening period. In the case of a tenant, that could be a very serious matter and has indeed turned out on a number of occasions to involve very great hardship and the provision that the provisional order should not be revoked retrospectively is a very wise and a very necessary one from that point of view.
The landlord's side of it in this case is not terribly important because the situation of a tenant getting back a sum of money which he had overpaid in the interim would be a very happy one for the tenant to be in but it is not one we need worry much about. We must, however, I think, worry about the alternative situation where a tenant would suddenly find himself faced with substantial arrears of rent to pay. Do not forget we are making this important change; from now on, the landlord will be able to come in before the provisional order is made and make whatever case he can. From that point of view, he will be in a much better position. If Senator Sheehy Skeffington is right and there is a danger that tenants will be inclined frivolously to go to court looking for provisional orders because thereby they will get a certain period during which they will be obliged to pay only a very reduced rent, the remedy should not be to make it more difficult for them to get provisional orders but should be what we are trying to do—help the landlord to defeat that sort of thing. We are doing that by letting him come in at an early stage before the provisional order is made and make his case.
There is also the point that the court may, as we see it, achieve retrospective effect in a case where it is desirable to do so by modifying the order, by confirming the existing order with modifications.
The Parliamentary Secretary makes the point which is, of course, a strong one, that you might burden a tenant with a big amount of arrears subsequently becoming due by reason of the fact that the terms of the modification had been made retrospective. On that point, I think we ought to recall that the burden to which he becomes liable is rent due in the eyes of the court and arises only out of a defective provisional order. If it is a big amount, it means that the provisional order has been grossly unfair. I think that is offset to some extent by the Parliamentary Secretary's second point, which is also a strong one, that we are now letting the landlord in before a provisional order is made to make a strong case. Therefore, we can argue that the provisional order will tend, as from this Bill, to be far nearer to the exact rent than previously and therefore a lot of the force of the Parliamentary Secretary's argument about a large sum suddenly becoming due falls, because in fact it will be a small sum. But, in equity, it ought to be a sum recognised as due, because, in fact, if, owing to a provisional order, the landlord will lose some of the rent which the court finally decides was his due, I do not think under the terms of this, as the Parliamentary Secretary points out, that sum could now be a very big one because the landlord will have made his case originally in relation to the provisional order.
Question put and agreed to.
Sections 24 and 25 agreed to.
SECTION 26.
Senator Sheehy Skeffington's amendment—No. 28— has been disposed of. Perhaps the Senator would care to speak on the section?
No, thank you.
Amendment No. 28 not moved.
Section 26 agreed to.
Sections 27 and 28 agreed to.
SECTION 29.
I move amendment No. 29:
In subsection (1) (g) (i), page 20, line 31, to delete "that" where it secondly occurs and substitute "a".
This is a small amendment. It relates to subsection (1) (g) (i). The subsection says that an order for the recovery of possession of a controlled dwelling shall not be made unless the court considers it reasonable to make the order and then there are a number of provisions, paragraph (g) of which states:
the dwelling is bona fide required by the landlord for occupation as a residence for some person who holds a controlled dwelling as a tenant of the landlord and has so held it for a period of not less than 12 months and the Court is satisfied—
(i) that alternative accommodation in that controlled dwelling is or will be available.
I think the word "that" is unnecessarily restrictive. I have asked that this shall read, "That alternative accommodation in a controlled dwelling is or will be available." The words "a controlled dwelling" will contain, of course, the implication of "that controlled dwelling" but will make it more widely applicable and will allow the landlord to make an offer of reasonable alternative accommodation, not necessarily in the same premises. I do not see the necessity for insisting that he shall offer the alternative accommodation in the same premises. That is unnecessarily restrictive. I do not think it is necessary in defence of the tenant who is already protected by having to be offered adequate accommodation in controlled premises.
First of all, I should like the House to appreciate that this provision as it is in the Bill is something quite new. It is a point which was suggested to the Conroy Commission by the Artisans' Dwellings Company and was accepted by the Commission. The idea behind it is that a good landlord who has a lot of property would like to make the best possible use of that property and that he might have in one case a very large house with a single individual in it and in another case he might have a small house with a very large family in it. A company like the Artisans' Dwellings Company who would be interested in managing their property-in the best possible way would like to change those two tenants about and give the large family the big house and the single individual the small house.
It was accepted by the Conroy Commission and for that reason it is in the Bill but it is something about which one would have certain misgivings because it does involve a certain amount of disturbance of tenants. It does give the landlord the right to change a tenant from one dwelling to another without any say on the tenant's part. We have gone that far. We have agreed that the landlord should be entitled in circumstances where the court approves to change them from one dwelling to another. The effect of Senator Sheehy Skeffington's amendment would be to enable a landlord to change them round as between three or four different houses. We think that would be going too far and we are not just prepared to go that far and, I think, wisely so. We should like to see how this thing will work out before we would consider extending it.
I sympathise with the Parliamentary Secretary's concern in this respect and it is for all of us to be so concerned about protecting the tenant, but I would suggest that the tenant is sufficiently protected by sub-paragraph (ii) which provides also that before such tenant can be moved, the alternative accommodation must be reasonably suitable to the residential and other needs of the tenant from whom it is proposed to recover possession. The Parliamentary Secretary says that this is "without any say" on the part of the tenant but I think a tenant could apply to the court and say: "My residential needs are met by this but not other needs—my family needs and so on." There are "other needs." The tenant could apply under sub-paragraph (ii) for the right to reject the offered alternative accommodation as being unsuitable to his or her residential and other needs.
I can imagine a case in which a landlord might have two blocks of flats and in which it might be necessary for the reasons suggested by the Parliamentary Secretary to gain possession of a particular flat and to be unable to get possession of that flat because the landlord could not offer suitable accommodation in the same block of flats, although he could offer it in the block next door. If we say that the alternative accommodation must be offered in "that controlled dwelling," we are restricting unnecessarily. A tenant might, in fact, be offered something quite good either in a similar flat in a block next door or down the street or in a similar house down the street. I feel that the tenant is protected by sub-paragraph (ii) which takes into account his residential and other needs.
Is the Senator reading the section correctly? I should like him to repeat that last point.
My point is that if a landlord has two blocks of flats and wants to gain possession of one flat in one of them, according to this subsection as I read it, he would have to offer the alternative accommodation to the tenant in the same dwelling. As I read it here it says: "in that controlled dwelling"—"that alternative accommodation in that controlled dwelling is or will be available."
"That controlled dwelling" refers to the other tenant's dwelling.
It merely effects an exchange—is that the way?
The reference in sub-paragraph (i) to "in that controlled dwelling" is the other tenant's dwelling. It does not mean that the landlord would have to put the tenant he wants to change in the same dwelling. That would be ridiculous. In fact, it means what I said, that two tenants in two different dwellings can be interchanged. It does not matter where the dwellings are. They certainly need not be in the same block of flats.
I accept that. That makes the position much better if these words are capable of that construction.
They are.
Sub-paragraph (g) says:
the dwelling is bona fide required by the landlord for occupation as a residence for some person who holds a controlled dwelling as a tenant of the landlord and has so held it for a period of not less than 12 months and the Court is satisfied—
(i) that alternative accommodation in that controlled dwelling is or will be available.
Which refers to the other tenant's controlled dwelling.
I accept that and I assume that that would be the construction put on it.
Amendment, by leave, withdrawn.
May I say something on that last point?
Would the Senator prefer to say it on the section seeing that we have disposed of the amendment?
It really arises on the amendment.
The amendment has been withdrawn. It is no longer before the House.
I move amendment No. 30:
In subsection (1) (i), page 20, line 47, to delete "three" and substitute "six".
Nos. 30 and 31 seem to go together.
They are rather different.
There can be separate decisions on them. No. 31 would seem to be cognate with No. 30. However, it is a matter for the Senators as to whether they would prefer to discuss them separately. Would you rather take them separately?
I would.
Very well.
We think the period of three years is too short, that six years would be more equitable. A tenant disturbed in those circumstances might find himself in very serious difficulties, particularly if he had lived in the dwelling for a long time. He might be unable to obtain suitable alternative accommodation relative to his family needs such as the proximity of schools, of his place of business and so on. He might be able to find only a dwelling, either a house or a flat, that would be very expensive so that the compensation based on a three years' calculation of rent and rates might be used in a very short time. He would have to leave the house and he would still have no dwelling in which to place his family. A calculation of six years rather than three years would be more reasonable.
I should like to support this amendment and to ask the Parliamentary Secretary sympathetically to consider the point. What we are doing here is debarring the court from giving more than three years' rent by way of compensation. The amendment we propose does not lay down that there should be six years' rent provided as compensation or any particular amount, but it lifts the maximum in the section.
I am accepting the principle that a landlord who is suffering financial stringency should be allowed to recover possession if he satisfies the court, but we should also give the court some wider discretion to provide compensation to the tenant being disturbed. As the section reads, the court no matter what the circumstances are, no matter how sympathetic it would be to the relative needs of the tenant as against the landlord, would be debarred from giving more than three years' rent by way of compensation to the tenant.
I know the Parliamentary Secretary can point to the recommendation of the Conroy Commission that there should be a maximum of three years' rent by way of compensation in these circumstances. We should not forget that the Conroy Commission also recommended an extension of rent control but in this Bill we are providing for a relaxation of rent control. We are taking a completely different course from that advocated by the Conroy Commission, and by previous sections of the Bill, we are releasing a number of houses from rent control and giving an inducement to the landlord whose house will still be controlled to regain possession and thereby be released from rent control. There should be that further inducement to landlords to argue to the court that because of financial stringency, they should recover possession of the house and go into residence in it themselves. After that, as we have discovered, the houses are then free from rent control and can be let at whatever rent the landlord can get.
In those circumstances, we should give the court more discretion. We should not pin it down so that, no matter what sympathy it may have for the landlord and for the tenant, no matter how it might regard the hardship which the tenant may endure by reason of being dispossessed, it cannot provide compensation of more than three years' rent. That is unreasonable. We should extend the period to six years at least and leave it to the court to consider each case on its merits. If the court says that two or three years' rent is adequate compensation, that is all right. If it thinks four years' rent would be appropriate, it should be free to act accordingly and not be debarred by this section from providing more than three years' rent by way of compensation. I hope the Parliamentary Secretary will agree that this amendment should be accepted.
We are dealing here with the case of a landlord who is suffering from financial stringency. This paragraph deals purely with the case of a landlord who has property; he is able to prove he is suffering financial stringency and wants to realise his property. The purpose of the Rents Acts is to protect tenants, to ensure that the rents cannot be unjustly or unlawfully increased and that their possession of their premises cannot be unjustly or unlawfully disturbed. There is no provision in the Rent Acts—and I do not think it would be desirable—to secure profits for tenants.
If a landlord is suffering from financial stringency and he wants to sell his house, the only thing he can do at the moment is sell it to the tenant and the only price he can get for it is the bare capitalised value of the rent. That means that immediately the tenant has purchased the house, he can then sell it on the open market at its full value and he can take the capital profit which, in all equity and in all justice, belongs to the landlord. We want to do something about that situation and we are going about it in this manner.
The effect of this provision will be-that the landlord will be able to get something near the full value of his house, and at the same time, we are giving something to the tenant. The broad idea behind it is that we would give enough to the tenant to give him a deposit on a new house if he wants to buy one. Three years' rent, including rates, would in most circumstances equate to the deposit on a new house. In any event, it would give a satisfactory sum with which to get over the intervening period while looking for a new premises.
Why should we not give the court complete discretion in this and extend the period to six or seven years? It is up to us in this case to give an indication of the balance of equity between the two parties, the tenant and the landlord. Up to three years' rent is reasonable in all the circumstances. I would not like to increase it very much, in any event, and certainly not to six years in the light of what we are trying to do and of the situation with which we are trying to deal, namely, where a landlord is beyond any shadow of doubt suffering from financial stringency.
I am not quite happy about this paragraph, though I am not sure that the amendment is the best way of dealing with it. In the first place, the landlord will be allowed by the court to regain possession of a dwelling without any obligation on him to provide alternative accommodation if he is suffering from financial stringency. Now what does that mean?
We all understand financial stringency.
I was about to ask whether there is anybody here present who would not consider himself as suffering from financial stringency and both Senator O'Quigley and the Parliamentary Secretary have, by word and gesture respectively, confirmed my opinion. Therefore, I think we can argue from that that there is no landlord who does not regard himself as suffering from financial stringency. Therefore, every landlord can get rid of every tenant. We all know that we are suffering from financial stringency. If we are all suffering from it and all landlords by popular consent, are suffering from it, then all landlords can kick out all tenants. That is not what the Parliamentary Secretary has in mind, I am sure. Must the landlord be able to prove that all his financial stringency arose since the tenant acquired the building, or only some of it? He must be able to prove, I think, that his suffering increased to an unbearable extent. I think it will be difficult in court to establish just precisely what is meant by this.
He will have to prove that his financial stringency arose since the tenant got the dwelling.
Presumably, as Senator Ryan suggests, every single bit of the financial stringency from which he is suffering will have to be proved to have arisen since the tenant got the dwelling. I wonder will it be easy to prove that. I am not satisfied with that particular aspect of this paragraph.
Another aspect is that he has to prove that this financial stringency can be relieved only by recovering possession of the dwelling, that there is no other alternative. He must prove that. He has to say that it can be relieved only by possession of the dwelling "with a view to its sale." But there is no obligation on him to sell it. He may decide to turn it into flats. He may decide, on second thoughts, to move into it for a week, reside in it, have it consequently decontrolled, and relet it at an increased rent because he has not got to say: "I guarantee that I will sell this house." All he has got to say is that—I think the phrase is—it is, "in view," and that is the second phrase that seems to me to be dubious in this paragraph. He has got to show that relief can be obtained from this financial stringency, and the suffering that goes with it, only by recovering possession with a view to sale.
Sections 36 deals with the case where the landlord gets possession by misrepresentation.
I realise that—if he has really misrepresented the case. I take it the Parliamentary Secretary is relating that to this second point of mine. After all, it is not misrepresentation if he says:
"Well, I gained possession with a view to sale, and I changed my view later." That is all right. The view was there when he gained possession, and the view changed. Views do change. I do not think that would be misrepresentation. These are two points which seem to me to contain quite an element of doubt and which would be open to quite a lot of question, and perhaps a lot of argument, in court. In other words, I think the paragraph might be tightened up.
I come now to the question of the three years' rent. I notice that it includes rates. That means, of course, that it is a more generous rent to the tenant than if it simply said three years' basic rent. It includes rates and could, in fact, amount to a fairly considerable sum if the rent was in any way high. It is that which leads me to question whether the amendment tabled by Senator Miss Davidson and Senator Murphy is really one to be supported.
I find myself here in sympathy with the Parliamentary Secretary because three years' rent, including rates, whether or not the tenant pays the rates, could, I think, amount to quite a big sum. If the rent of the house, or dwelling, is a fairly substantial rent, then three times the rent, including rates, would be quite a sum in hand for the tenant. If, on the other hand, it has been a small rent and rather out of proportion to the value of the house —a small rent due to the fact it had been controlled at a time when rents were pretty low—then, while it is true that the tenant in getting three times the rent, plus three times the rates, will be getting rather a smaller sum proportionately as against a tenant in a dwelling where the rent was high, nevertheless it is also true that the tenant has had the benefit of the small rent down the years and is not entitled to the same measure of compensation.
That element, therefore, in this paragraph is, I think, a sound one. I think the figure of three years is equitable. Where it is a big rent, this will be a big sum. Where it is a small rent, it will not be a very big sum, but the tenant will have had the benefit down the years of having had the dwelling at a small rent. I remain unhappy, however, about the failure to define "financial stringency," and the failure to insist that the house shall, in fact, be sold, if possession has been acquired with a view to its sale.
The only thing I can offer to help the Senator is the overriding provision in subsection (1) "unless the court considers it reasonable". In all cases there is the overriding element of reasonableness. If you take that in conjunction with the suffering from financial stringency, the financial stringency must have arisen since the dwelling was let and can be relieved only be recovering possession of the dwelling with a view to its sale. If the Senator reads the whole lot together, then I think his fears are not very well grounded.
Might I ask the Parliamentary Secretary, if the tenant subsequently went to court and said possession was given against him in favour of the landlord, who said he was going to sell but, in fact, did not sell, would the Parliamentary Secretary consider that that would make the landlord liable under Section 36?
I think it would but it is not for me, of course, to interpret.
I know, but I should like to have that on record.
Is the amendment withdrawn?
No. I want to clarify the point with regard to the three years' rent by way of compensation. What the section does is to provide that compensation, or "such sum as the court considers proper". But we are providing a bar against the court going above three years, if, having learned all the circumstances, having regard to the financial stringency of the landlord, having regard to the difficulties of the tenant, the court still thinks it reasonable to give possession to the landlord but is doubtful about the difficulty in which the tenant will be placed; the court thinks the tenant should get more compensation to tide him over his difficulties, but the court is barred from giving more than three years' rent by way of compensation. It is, I think, unreasonable for us to bar the court in those circumstances.
The Parliamentary Secretary has pointed to the fact that the court is governed by subsection (1); the court has to have regard to what is reasonable in all the circumstances. I think we should give the court discretion in this matter. I do not think the Parliamentary Secretary is really opposed to some easement. If he does not like the figure "six", if he thinks that would be an indication to the court that it should in all circumstances give six years' rent, I should be prepared to withdraw the amendment, but I would hope that, between now and Report Stage, the Parliamentary Secretary would look at "three" to see if he could make some improvement on it. I do not think we shall be preventing the court from dealing adequately and in what it would think a reasonable manner with the needs of the tenant, if there is this limit of three years.
I shall certainly do that.
Amendment, by leave, withdrawn.
I move amendment No. 31:—
In subsection (1) (j), page 20, line 55, to delete "three" and substitute "six".
Here again the arguments are somewhat similar, even though the circumstances are different. I should like the Parliamentary Secretary to consider it between now and Report Stage.
Certainly.
Amendment, by leave, withdrawn.
Question proposed: "That Section 29 stand part of the Bill."
When Senator Sheehy Skeffington put down amendment No. 29, I think he misread the intention of subsection (1) (g), and with some justification, because it is not very clear. In any event he did bring out the fact that there was an ambiguity as to what was intended by "controlled dwelling," which is mentioned in that paragraph of the sub-section and is also mentioned in the opening paragraph of the section itself, which reads:
Subject to subsections (2) and (3) of this section, an order for the recovery of possession of a controlled dwelling shall not be made unless the Court considers it reasonable to make the order...
and so on, so that "controlled dwelling" in line 32 or, I think, line 30——
Line 31.
——can refer back either to the paragraph immediately before it or to the paragraph at the very beginning of the section. It would be hard to see how it would make sense if it were referred back to the paragraph at the beginning of the section but nevertheless, in the interests of clarity, I think lines 31 and 32 could possibly be redrafted to make the position quite clear.
As we are passionately devoted to the question of clarity, we shall certainly consider that.
Under paragraph (e) of sub-section (1), a landlord may obtain possession of a dwelling as a residence for himself in circumstances where greater hardship would be caused by denying him possession of it than by allowing the tenant to remain on in it. I am just wondering, relating that back to paragraph (e) of subsection (2) of Section 3, which we discussed at some length yesterday evening, whether that kind of dwelling will become decontrolled once it comes into the possession of a landlord and is used by him as a residence for perhaps the week we were talking about? In other words, we are now providing a means by ejectment by which the landlord can secure that the premises will be decontrolled by a court action and I am wondering whether that is desirable and contemplated?
Paragraph (i), which deals with financial stringency, seems to me to be a bit loosely drafted. If the intention is that a landlord will be entitled to recover possession because he intends to sell, and that intention is genuine, there should not be any great difficulty in amending the section to provide that the landlord would come in with a good contract for the sale of the premises, subject to the contract always containing a clause that the premises would be sold subject to possession being given by the court. That is a possibility and I can well see a great number of dodges being worked under this kind of section.
The landlord may even put it up for auction and place such a reserve on it that the premises will not be sold. He can then come back and truthfully say to the court, in the case of any action for misrepresentation under Section 26: "I put the property up for auction." He can produce records, papers and the auctioneer to prove that.
The tenant would not be idle when all this was going on.
As matters stand at the moment, the landlord can go through the formality of putting the place up for auction and placing such a reserve on it that he knows it will not be sold.
And if the tenant bid for it?
If the tenant wishes to meet a reserve which is well beyond the market value, that will leave the landlord quite happy. I think it is useless to put into the section "with a view to its sale" because it means absolutely nothing. It will only involve people in a lot of dodgery and tenants will be left with a grievance. Perhaps the Parliamentary Secretary would consider whether or not the section might not be a little more tightly drafted in order to prevent landlords getting through these loopholes.
Question put and agreed to.
Section 30 agreed to.
SECTION 31.
Government amendment No. 32:
To delete subsection (3), page 22, and substitute the following sub-section:
"(3) (a) Where a non-statutory tenant of a controlled dwelling dies intestate leaving him surviving his wife or any member of his family who wasbona fide residing with him at the time of his death and either—
(i) the tenancy of the non-statutory tenant terminates before administration is granted in respect of his estate, or
(ii) the tenancy of the non-statutory tenant being vested in the administrator of his estate, it terminates while the administrator is not in occupation of the dwelling,
the following provisions shall have effect:
(I) in case the non-statutory tenant leaves him surviving his wife, who wasbona fide residing with him at the time of his death, she shall be entitled to retain possession of the dwelling under the same terms and conditions as the deceased non-statutory tenant;
(II) in case the non-statutory tenant does not leave a wife who wasbona fide residing with him at the time of his death, such member of his family who was bona fide residing with him at the time of his death or, where there is more than one such member, such one of them as may be agreed upon between them or as may be selected by the Court in default of agreement shall be entitled to retain possession as aforesaid.
(b) Where a non-statutory tenant of a controlled dwelling, who is a woman, dies intestate leaving her surviving her husband or any member of her family who wasbona fide residing with her at the time of her death and either—
(i) the tenancy of the non-statutory tenant terminates before administration is granted in her estate, or
(ii) the tenancy of the non-statutory tenant being vested in the administrator of her estate, it terminates while the administrator is not in occupation of the dwelling,
subparagraphs (I) and (II) of paragraph (a) of this subsection shall have effect with respect to her husband and family as they have effect with respect to the wife and family of a non-statutory tenant who is a man."
An Leas-Chathaoirleach
Amendments Nos. 32 and 33 go together and, if amendment No. 32 is accepted, amendment No. 33 may not be moved. The two can be discussed together.
I am bringing in amendment No. 32 to meet the point raised by Senator O'Quigley on the Second Stage. He instanced the particular case of a contractual tenant who dies intestate and letters of administration are taken out by an administrator who is not in possession. In that case the landlord could terminate the tenancy by notice to quit and I am bringing in this amendment to rectify that situation, to ensure that the same saving will be extended to the members of the deceased contractual tenant's family in that case as in the other case we already dealt with.
I appreciate the Parliamentary Secretary's action in redrafting the section in the form of this amendment and I think that there is no doubt it meets the point which I made on Second Stage. What I am concerned with is that members of the family of the contractual tenant should have the same protection of their possession as the family of a statutory tenant. So far as one can see, the Parliamentary Secretary's amendment meets that situation but I am somewhat apprehensive of circumstances arising where this would not be sufficiently watertight. You could have the position where the tenancy would be terminated after the grant has been taken out, the administrator not being in possession.
The fact that administration is once taken out does not conclude the position because there can be circumstances in which the next-of-kin of deceased think that the deceased made no will when in fact he has. Then the procedure is to prove the will and revoke the grant of administration; or the administrator may die before certain of these events occur. In certain circumstances, this amendment may not be adequate. It is very difficult to envisage all the circumstances which might occur but if the Parliamentary Secretary adopts the principle that the family of the non-statutory tenant should have the same protection in their possession as the family of the statutory tenant, I think the amendment I have suggested absolutely covers that position. My amendment provides that the interest of a non-statutory tenant, notwithstanding any other rule of law as regards devolution on intestacy, will devolve in precisely the same way as the interest of the statutory tenant and, therefore, the family of the non-statutory tenant will be in precisely the same position for all purposes and in all contingencies as the family of the statutory tenant.
While I hesitate to say that my amendment is better than the amendment the Parliamentary Secretary has moved, I am wondering, if it is desired to put the families of both classes of tenants into precisely the same position, whether the surer way of doing it would not be along the lines of the amendment I have on the Order Paper. I would ask the Parliamentary Secretary if his object is to put the families of both tenants into the same position, whether he would not consider that the other amendment is not more certain to achieve that object.
Far be it from me to accuse the Senator of looking a gift horse in the mouth, but I think that the official amendment meets everything that we can more or less foresee at the moment. The reason I do not immediately accept the more sweeping amendment put down by the Senator is that I am trying to adhere as far as possible to the general trend of this legislation. The principle has always been not to interfere more than is necessary with a contractual tenancy. I think that is a good plan and one that has been upheld. We set out to look after the contractual tenant just as much as we do to look after the statutory tenant, but at the same time we try to preserve the fabric of contractual tenancies as far as possible.
In this instance I think we are meeting any special contingencies and at the same time adhering to that general principle. I certainly shall consider the Senator's suggestion of extending if it turns out to be necessary. If we can envisage some situation or set of circumstances arising where we have not gone far enough, undoubtedly I would be prepared to consider extending the whole basis.
I think that is very satisfactory.
Amendment agreed to.
Amendment No. 33 not moved.
I move amendment No. 34:
Before subsection (5), page 23, to insert the following subsection:—
"( ) For the purpose of subsections (3) or (4) of this subsection ‘family in relation to a non-statutory tenant' and ‘family in relation to a statutory tenant' shall be construed as meaning any person related to any such tenant being:
father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother, half-sister, uncle, aunt, grand-uncle or grand-aunt".
This amendment has as its object the elimination of much of the trouble we were speaking about yesterday in relation to the definition of a self-contained flat. In Section 31 we speak about the family of the deceased non-statutory tenant and the deceased statutory tenant. A certain effort is made in subsection (5) to extend the meaning of the word "family" to include persons who were adopted, illegitimate persons living with the mother and reputed father and persons in loco parentis to others. They are all within the ambit of the family. There has been quite an amount of litigation in an effort to determine who is or is not a member of the deceased tenant's family. Under the Fatal Injuries Act, 1956, you have a definition of the family of the person who has sustained the fatal injuries and the people who are considered to be entitled to compensation upon the death of the injured person.
"The family" can mean anything down to a third cousin; what the relationship after that is I do not know. It all depends on what the Oireachtas thinks is the proper limitation to fix to the family. I have fixed here, in addition to the husband and wife, the father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother, half-sister, uncle, aunt, grand-uncle or grand-aunt. One could possibly say that that is too limited and that one should go to first cousin. If you do that you are extending the numbers very greatly. I think, perhaps, in the limitation extending as far as grandparents, uncles, aunts, brothers and sisters, you are going as wide as you ought to.
It seems to me, however, that this is a matter capable of definition. What it amounts to is this: that either we believe that certain people residing with the tenant should be continued in their possession after the tenant's death or that they should not. I do not think it ought to be left in an uncertain and vague way resulting in a lot of useless litigation to find out in each case who is or is not a member of the deceased tenant's family. I do not say that this is necessarily the best definition, but it certainly is an effort at limiting and clarifying the class of persons who in my view should be embraced in the phrase "the deceased tenant's family".
I am all with Senator O'Quigley on denning in subsections (3) and (4) what is meant by "family". I do not think he has gone too far in so denning it, when we read that the restriction exists that whoever is to benefit under this must be shown to have been "bona fide residing” with the deceased person. The people left out I notice, however, are the in-laws. It seems to me that they are not covered there. There might be a father-in-law, a mother-in-law, a daughter-in-law, or a son-in-law. and in the case of death by accident it might well be that there could be hardship if the tenancy could not be left to a daughter-in-law, a son-in-law, a father-in-law or a mother-in-law who had been genuinely residing there and upon whom, perhaps, might devolve the care of the family. I put in a plea for the in-laws.
I have no personal antipathy towards them!
I am in general agreement with the suggestion that there should be a definition of "family" in this case. In general, I think it might be better if it could be left to the court to define what a member of a family was but, unfortunately, there have been a number of decisions in recent years of a rather restricted character and the position at the moment appears to be that a member of a family includes the father, mother and children. That was the first decision.
A further decision suggests that was a little bit too restrictive and that sister ought to be included but to say the least of it the position at the moment as regards recent decisions makes the definition of "family" very uncertain and tends to be restrictive. In these circumstances, I think there is a lot to be said for defining "family," even though that may have the effect in some cases in the future of a person, who is not within the definition, failing to get the protection of the Act. On the other hand, if we do not have a definition, there is a danger that far more people may fail to get the protection of the Act. Consequently, in the circumstances and having regard to recent decisions, it would be safer to define what a family is.
If the Parliamentary Secretary decided to do that, I think that possibly the definition, in the Fatal Injuries Act, 1956, would be a better one than the one suggested in this amendment.
I support what has been said in regard to the importance of defining "family" in the context of this section. In particular, I should like to support Senator Ryan who suggested that if such a definition is to be inserted in the Bill, the definition contained in Section 2 of the Fatal Injuries Act, 1956, should be adopted. It is slightly better than the one suggested by Senator O'Quigley. It defines "member of the family" as follows:
wife, husband, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother, half-sister.
together with in-laws as suggested by Senator Sheehy Skeffington. I could not see any court construing "family" outside that. There would be no hardship involved in doing it. There is a danger—and that danger has been put into effect by some decisions recently—that a court may restrict the definition of "family" to the immediate blood relations. I should like in particular to suggest that the definition in the Fatal Injuries Act, 1956, be adopted. The difficulty in regard to Senator O'Quigley's definition is that it does not include a widow or widower.
Because that is already dealt with in the section.
I am impressed by this formidable array of agreement among the legal members of the Seanad. On the other hand, I am in quite a difficulty because to define is, of course, to limit. Indeed, the very thing Senator Sheehy Skeffington said, reinforced by Senator Lenihan, is true, that any definition you give automatically excludes those who are not included in the definition. Senator Sheehy Skeffington immediately asks: "What about the in-laws?" If we adopted Senator O'Quigley's amendment, the in-laws would be out.
Senator Lenihan says: "Let us have the definition contained in the Fatal Injuries Act, 1956". Of course, Senator O'Quigley has already gone further than the definition contained in the Fatal Injuries Act, 1956. He desires to add in-laws to it. That is the very difficulty. Where would you stop adding on? I should be delighted to meet the House on this matter of definition if I could be satisfied that it would be an ideal one and one which would cause no hardship in any cases.
As the situation is, I think the trend of the decisions is to the effect that the definition should be as open and as liberal as possible. That may not be true but it is true that the tendency towards narrowing was rejected by the Supreme Court. The position is open again. In those circumstances, my personal inclination is to leave it as. far as possible to the wisdom of the court to avoid hardship in any particular case. I certainly would not like to think that by a clear definition set down here, we would prevent them in certain cases from doing what they would like to do.
So far, all the definitions mentioned have left out nephews and nieces and, of course, in-laws. There is a further category left out, cousins. Let us take the case of two elderly lady cousins living together. One of them, who would like the tenancy to go to the other, dies. None of the definitions suggested so far would cover that. That is a case where the court would probably interpret "family" to include the cousins.
I think the best I can do at this stage is to tell the House my difficulty in regard to the matter and my anxiety to meet so far as possible their pleas. I shall go carefully into it again and see if a definition, which will be satisfactory to everybody, can be worked out.
To meet the point stressed by the Parliamentary Secretary—the question of people being left out—may I suggest that it might be possible to define those who are definitely within the term "family" and to have a further subsection to say that relationships outside those mentioned in the preceding section which should, in the opinion of the court, be brought within the definition of "family" by special circumstances should also be included? Something along those lines might meet the case.
The difficulty in adopting precedents is shown up by the fact that I left out the, in-laws because my amendment was based entirely on the Fatal Injuries Act, 1956, with some additions. Notwithstanding the Parliamentary Secretary's concern for somebody such as a cousin, a nephew or a niece who has lived all his or her life with the tenant being left out, at the same time, as Senator Ryan says, a number of people who already come within the relationships set down in this amendment are excluded and likely to continue to be excluded under court decision. I think it would be far better to bring in as many as the House considers reasonable. We should have some saving section such as that suggested by Senator Ryan and bring in such other people as the court would think proper.
This is an amendment that will avoid a lot of unnecessary trouble and make for greater certainty on the part of people who will decide whether they will continue to live with somebody or whether they should get out and do something for themselves and not rely on succeeding to a tenancy if a statutory or a non-statutory tenant has died. Oftentimes people decide to live with a relation in the hope of succeeding to the house after the death of the relative. It would make for clarity in that kind of a case.
In the case of the self-contained flat, I think it was Senator Sheehy Skeffington who said he would look after the definition for me.
It was Senator O'Quigley.
Perhaps he would do the same in this instance.
I should be glad to do the best I can.
I can only repeat that my anxiety is for clarity and if I can find a definition, or a form of words, possibly along the lines suggested by Senator Ryan, which would meet my view and the view of the House, I should be very glad to incorporate it in the Bill.
Amendment, by leave, withdrawn.
I move amendment No. 35:—
In subsection (5), page 23, line 12, to delete "ten" and substitute "three".
This is an amendment which I put down to reduce the number of years' residence which a person not within the immediate family circle, as normally understood, would have to have before being entitled to succession to the tenancy on the death intestate of a non-statutory tenant or the death of a statutory tenant. I do not understand or appreciate at all how the period of ten years was arrived at It seems to me to be altogether too long. If you take the case of a person adopted under the Adoption Act, it would mean that none of these people at the present time, if this Bill did come into operation, would be regarded as members of the deceased tenant's family. A child who was five when adopted would now be 13 or 14 and he would not, after eight years' residence with the tenant, be regarded as a member of the family. That seems to me to be absurd.
I see the point of providing a limit or fixing some minimum period during which a person should be residing with the tenant, who subsequently dies, who is not of the tenant's family, because you could have a person going in merely for the purpose of qualifying for a tenancy when he saw that somebody was getting very old or was seriously ill, but I do not agree that anybody should be required to be there for ten years in order to qualify. I should be glad to hear from the Parliamentary Secretary the justification—I am sure there is a good justification—for the ten years.
I should like to support Senator O'Quigley on this. On principle, I think it is too long and I think also that this period of three years is too short. Perhaps the usual period of six years might be adopted. It is the period adopted in regard to many legal matters, and six might be more in accordance with what Senator O'Quigley mentioned.
I should also like to support this amendment very strongly. Subsection (5) seems to be a very good one but somehow the ten years is out of the spirit of the whole of the rest of the subsection. A person living with someone for three years may be said to be bona fide resident with him.
If it is acceptable to the House, I am prepared to accept six years.
It is an improvement.
An Leas-Chathaoirleach
Will we put it in now or on the Report Stage?
Put it in now.
An Leas-Chathaoirleach
Very good. We shall amend the amendment and put in "six" instead of "three". The amendment will then read:—
In subsection (5), page 23, line 12, to delete "ten" and substitute "six".
Amendment, as altered, agreed to.
Question proposed: "That Section 31, as amended, stand part of the Bill."
There is a problem involved here for some landlords and I should be grateful for the opinion of the Parliamentary Secretary on it. There is the problem in many instances of not knowing who the tenant is on the death of a contractual tenant and to some extent in the case of a statutory tenant. The position can be very involved in the case of a contractual tenant who leaves a will with a number of residuary legatees or who dies intestate leaving several next of kin. There may be a whole crowd of claimants for the tenancy. In the circumstances, the question arises: who is the statutory tenant? Are all the people collectively the statutory tenant or should some individual be deemed to be such? Is each individual liable for the entire rent, or what is the position if one such person leaves the dwelling but returns to reside there after a number of years? Can he then still claim the right of a statutory tenant? This is a very grave difficulty for some landlords and I wonder whether the Parliamentary Secretary could introduce any definition or any solution to that problem.
I am afraid not. I should very much like to help but it is a very detailed and complicated matter and I could not hold out any hope of dealing with it. In one of the cases mentioned by the Senator, the court is entitled to select between the tenants but the broader question is just too formidable a task and I could not do anything about it.
I take it we shall leave it to the lawyers.
In the case of the tenant who dies intestate, the court has the power, but the real snag is the tenant who leaves a will and I do not think that is met by the section. Therefore, that kind of tangle is going to remain and it seems a pity that no formula could be devised.
Surely the problem is not as great as Senator Stanford seems to think because landlords will not have to choose between all the next of kin and thereafter the right to possession of the property will devolve only on those resident, bona fide, with the tenant on his death. That is contained in sub-paragraph (2) and therefore it limits the number of people in the first place.
As regards the person who would succeed on the death of the person who makes his will, I do not think there should be any serious difficulty. The tenancy would devolve on the personal representative who will be liable for payment of the rent. If the landlord comes to a person who is in occupation and he says: "I am not the tenant," there is only one way to deal with him, that is, to eject him. Therefore, I do not see any great difficulty on the section.
I think there are some difficulties.
They have to be solved ad hoc apparently.
Question put and agreed to.
Sections 32 to 36, inclusive, agreed to.
SECTION 37.
I move amendment No. 36:—
To add to paragraph (b) the following: "the nature of which convenience or necessity as the case may be has at or prior to the time of the letting been stated in writing."
This is the kind of section which has a counterpart in the 1946 Act. There have been all classes of evasions of control by landlords pretending that the lettings were of temporary convenience.
The question of temporary convenience has been the subject of some consideration by the courts and a great deal depends upon the views of different judges on particular sets of facts. It does seem to me that it would make for greater certainty on the part of a tenant taking a letting for the temporary convenience of the landlord if the landlord were to set down in writing what the nature of the temporary convenience was. He could then only recover possession where the conditions as set down in writing were seen to be fulfilled.
If that were done we would see that lettings which were said to be for temporary convenience were, in fact, so and you would obviate serious hardship to unfortunate people who have gone into occupation in the belief that the landlord would not require the premises until nephew, cousin, son or daughter came home to take up a particular job and the tenant would be under the impression that that was not likely to arise for a fairly long period. That would be expressed to be a temporary convenience but, because it was not expressed in writing, the tenant could be ejected without any right against the landlord. It seems to me to be quite in harmony with the fact that in most matters in regard to property contracts and leases are in writing. It would make for greater certainty for all parties if the nature of the temporary convenience were so expressed. I would urge that view on the House.
I think there is something of a danger in the amendment. At the moment the court must go into the circumstances of the case and satisfy itself that it is genuinely a letting for temporary convenience. If this amendment is accepted it could happen that, when a reason is put in writing, far more reliance would be placed on the fact that it is set out in writing and supposed to be a good reason than if the whole facts of the case were submitted to the court. It is far more satisfactory to allow the court to examine the facts of the case.
That would be my own view. There is a further point and that is whether Senator O'Quigley realises that his amendment would apply to all existing lettings. I do not know if that is his intention but as the amendment is phrased that is the object of it. I do not think we could accept that at all because it would involve a disturbance of existing lettings. As regards further lettings, in addition to the argument put forward by Senator Ryan there is the fact that from now on this type of letting will be in respect of an owner-occupied house which we are decontrolling. Such houses will be decontrolled anyway and this amendment will not be necessary.
I am satisfied. I withdraw the amendment.
Amendment, by leave, withdrawn.
Section 37 agreed to.
Sections 38 and 39 agreed to.
SECTION 40.
Question proposed: "That Section 40 stand part of the Bill."
This seems to me to be a very good section and it is one about which tenants ought to be told. Sub-section (1) provides:
Subject to the subsequent provisions of this section, where owing to the default of the landlord a controlled dwelling is not in good and tenantable repair, the Court may order the landlord to pay to the tenant such sum as, in the opinion of the Court, will be required to put the dwelling into good and tenantable repair.
I think that is an excellent provision, providing that the tenant of a controlled dwelling not in good repair through the fault of the landlord can ask the court to order the landlord to pay the tenant the sum required to put it into good repair.
In the past there was power for the tenant to do the repairs and deduct the cost of them from the rent but the difficulty was that the tenant had to have the money and have paid whatever the repairs cost before he could deduct it. This allows the court to make a decision and to make an order. In welcoming this section, one should stress the fact that it is to be hoped that tenants will be made widely aware of the new right given to them.
It is not new.
Question put and agreed to.
Section 41 agreed to.
SECTION 42.
Question proposed: "That Section 42 stand part of the Bill."
On this section I should like to say something similar to what I said on Section 40. This section relates to key money which can be a frightful curse. Section 42, taken in conjunction with Section 44, meets the point very well. It now becomes quite clearly illegal to ask for key money when a dwelling is being let and Section 44 goes on to say that if key money is extracted from a tenant the tenant will be entitled to deduct it from the rent. I think those two sections are very good. Tenants should be made aware of the fact that anything like key money is illegal and that if they are forced to pay it they are entitled to stop it out of the rent.
Question put and agreed to.
Sections 43 to 48, inclusive, agreed to.
SECTION 49.
I move amendment No. 37.
37. Before subsection (3), to insert the following subsection:
"( ) Where under paragraphs (d) and (e) of subsection (2) of section 10, a landlord makes a lawful addition to the basic rent of a controlled dwelling on the head of repairs, the Court shall have the power in the case of block dwellings, flats, or terrace dwellings to make such apportionment of this lawful addition as it thinks proper between any two or more of the tenants of such dwellings".
The purpose of the amendment is to prevent a situation arising in which a whole terrace of houses benefits by the repair of the roof or a gable end and in which it might be supposed that the house immediately beside the repaired portion was the only case in which the legal addition could be made. This amendment empowers the court to make an apportionment as between the various tenants for repairs to a block of flats or terrace dwellings.
The House will, of course, remember that we touched on this problem earlier, and as I mentioned then, it is a very difficult problem. I do not see that we can possibly do anything in the case of a terrace of houses. That is very difficult and very complicated. One can imagine a terrace of houses in which there would be different landlords and the difficulty would be to legislate in a situation which varied so much from one case to another.
A very strong case can be made for the block dwellings where a roof is repaired. It is only equitable that the repair should be spread over the various dwellings underneath the roof rather than on the one immediately underneath the roof. I should like to tell the House that I shall consider this matter very sympathetically, and if I find it possible to do anything between now and the Report Stage, I shall do it, but I do not hold out much hope that I can do anything about the terrace dwellings, not because I do not want to but purely because of the difficulties involved.
Might I urge on the Parliamentary Secretary that this amendment merely gives power to the court to make such apportionment as it thinks proper? I think to give that discretionary power to the court would be valuable and, in fact, where it does not think it proper to make such apportionment. it is not in any sense mandatory upon it to do so.
I shall bear that in mind.
Am I to take it that the Parliamentary Secretary is accepting the amendment?
No. In considering the matter, I shall bear in mind that what the Senator is looking for is this discretion for the court. Is that the point?
That is the point, but I was hoping the Parliamentary Secretary would recognise this and say: "This amendment would do no harm and I accept it."
An Leas-Chathaoirleach
I think the Parliamentary Secretary's attitude is quite clear.
Might I ask again whether the Parliamentary Secretary anticipates being able to offer an alternative to the Seanad or is he simply saying: "I shall go to another place and make these amendments"? We should like to feel that these amendments would be made on Report Stage in the Seanad, so that we would have an opportunity of seeing them.
I undertake to do so in the Seanad on Report Stage, if possible, but I cannot give an unqualified assurance.
An Leas-Chathaoirleach
I do not think it makes much difference.
I am not aware whether or not it is intended to take Report Stage now.
No.
Amendment, by leave, withdrawn.
Section 49 agreed to.
Section 50 agreed to.
SECTION 51.
Government amendment No. 38:—
In subsection (1), line 5, to delete "this Act to determine the basic rent of the dwelling" and substitute "subsection (1) or subsection (2) (as may be appropriate) of section 8 of this Act".
This is a drafting amendment which is necessary for a proper interpretation of Section 51.
Amendment agreed to.
Section 51, as amended, agreed to.
SECTION 52.
Question proposed: That Section 52 stand part of the Bill.
This is a short section which states:—
To avoid doubts, it is hereby declared that any person who, immediately before the operative date, was a statutory tenant (within the meaning of the Act of 1946) of a dwelling shall, subject to this Act, be entitled to retain possession of the dwelling.
I should like to ask the question: what about cases that are now pending under the 1946 Act?
What sort of cases?
A case which within the meaning of the Act might be decided, and might make a tenant a statutory tenant recognised as such, under proceedings which are at the moment engaging the attention of the courts but are not yet decided.
They will be covered.
They will be covered by this section?
Yes.
I wonder if such a person is covered: "A person who immediately before the operative date was a statutory tenant." I think there is the transitional stage referred to by Senator Sheehy Skeffington. Perhaps the Parliamentary Secretary would look at the matter again because it may not be covered.
I shall do that.
Question put and agreed to.
Sections 53 and 54 agreed to.
First Schedule agreed to.
SECOND SCHEDULE.
These amendments can all be taken together and we can have separate decisions on amendments Nos. 39 and 40 if desired. If they are not agreed to, amendments Nos. 41 and 42 may not be moved. They can be discussed together.
I move amendment No. 39:—
In the first entry, second column, to delete "15%" and substitute "6%".
The implication contained in all these amendments is that the percentage amount we are granting to the landlord is too high and the object of my amendments is to reduce that percentage. This arises out of Section 10, subsection (2), paragraph (e) which reads:—
in case the landlord, during any period of two years ending on a 31st day of December (being the 31st day of December, 1960, the 31st day of December, 1961, or any subsequent 31st day of December), expends an amount in excess of two-thirds of the basic rent of the dwelling on putting the dwelling into a reasonable state of repair, a sum calculated in accordance with the scale set out in the Second Schedule to this Act.
It is the Second Schedule that I am endeavouring to amend, because it says that if the amount expended in excess of two-thirds of the basic rent is not more than £100, the landlord will get 15 per cent. per annum on the excess. I suggest 15 per cent. is being very considerably over-generous to the landlord in those circumstances. He is bringing the dwelling back into a reasonable state of repair. It may be argued, of course, that it is not his own fault it has got into that condition, and that rents being controlled so low have prevented him from spending money on the premises. Nevertheless, people have been living in the house, and he has been collecting rents on it. Now, he is to be allowed to charge the tenant a certain amount. That is not unreasonable, and I think six per cent. on this £100 would not be excessive. I think that is reasonable, but to allow 15 per cent. is practically making it a little more than an investment. He is going to charge the tenant quite a large sum for putting the house into reasonable repair and he will get quite a good return on his money. If Senator McGuire were here, he would tell me 15 per cent. is a mere nothing in terms of modern investment, but he is not here and I think it is too much.
Furthermore, when it is more than £100, he will get 15 per cent. on the first £100, and eight per cent. on the remainder. My amendment suggests that in that case it should be seven per cent.
Instead of saying more than £100 but not more than £200 I simply want to delete all the reference to a further category. It seems to me that when it is more than £100 he might be content with 7 per cent on the lot. That would encourage him to spend a little more. I do not think he should be encouraged to the point of giving 15 per cent. on the first £100, 8 per cent. on the remainder and, when he spent more than £200, to give him, then 6 per cent. on the remainder. I think the 6 per cent. on the remainder should be sufficient even for the first £100. After the first £100 you might step it up a little, to encourage him to spend more than the first £100, to 7 per cent. That is the import of the amendments which I wish to move.
I cannot accept any of these amendments for several reasons. First of all, it is not fair to think in terms of landlords getting 15 per cent. on their money. They must spend two-thirds of the basic rent before they get anything. Then they get 15 per cent. on the first £100 over that. It works out that the rate of interest is, in effect, ten per cent. Experience has shown that in that category it works out at ten per cent. and after that it goes down to eight per cent. and then to six per cent. In some cases the Senator is prepared to give more than, we are giving. He is giving seven per cent. on the second £100 whereas we are only prepared to give six per cent. It could work out that the Senator's formula would give more than we are prepared to give, in certain cases.
I want to reiterate the whole purpose behind these provisions which have been in operation now for a considerable length of time. They are not new to this Bill. They are there and, in general, they seem to work out satisfactorily. In so far as possible we want to encourage landlords to do good, sound, satisfactory jobs on their premises. There are two objects in that. We want to make life as comfortable as possible for the tenants: we want to give them a reasonable dwelling in which to reside. Then, as a matter of good national economics, we want to ensure that the existing stock of houses is reserved to the greatest extent possible.
It is bad national economics and bad financial policy to give grants and to make loans available from State sources for the building of new houses, and, on the other hand, to allow the existing stock of houses to degenerate, to go into disrepair and to decay. Therefore, in the interests of tenants and of the national position in general, I appeal to Senator Sheehy Skeffington to withdraw these amendments and to allow the existing situation to obtain. It has been there a long time and has given fairly general all-round satisfaction. I do not think he will benefit the situation by pressing these amendments.
I agree with the Parliamentary Secretary when he says it is in the national interest to preserve all the housing capital, as it were—what represents capital; a house is capital. I think the way to do that is not by this Bill but by a housing authority in which the housing would be vested either in the municipality or in the authority. Then the Minister could do precisely what he wants instead of having to beg private owners, please, to take 15 per cent. in the hope that, out of the profit motive, they will be led into doing what is in the national interest.
Having flirted dangerously with the landlords up to now, the Senator is reverting to pure socialism.
Within the context of the legislation we are dealing with, I want to ensure that the maximum of justice is done to both sides. We are all agreed on that. If the Parliamentary Secretary is really so concerned with the community interest he will be on the Socialist side with me, which I look forward to.
The first declaration.
There is no first declaration about it. I made the point on the Second Stage that the way to deal with this is by the municipalisation of housing.
The Parliamentary Secretary rightly says that one effect of one of my amendments would be to pay a little more. Quite true. If the landlord has paid more than £200 he is to get 15 per cent. on the first £100, eight per cent. on the second £100 and six per cent. on the remainder whereas my amendments would suggest he gets six per cent. on the first £100 and seven per cent. on all the rest. That has the merit of simplification. It seems to me that these three sections are over-complicated, in the first place. I do not think it unreasonable to give six per cent. on the first £100 and, to encourage him to spend a bit more, seven per cent. on all the rest, within the context of this Bill.
I do not think the Parliamentary Secretary should forget that if the landlord is liable for repairs, even only partly, he will be allowed to put 12½ per cent. on the basic rent. If, in addition, he actually does repairs he admittedly will not be allowed to add anything for the first two-thirds of his expenditure but, after that, he will get 15 per cent. on the first £100. Therefore, it is not true to say that he is getting nothing on the first two-thirds; he is getting 12½ per cent. on the basic rent by reason of the fact that he is liable, even if he has not done the repairs.
Since this Bill is aimed largely at encouraging landlords to put property back into a reasonable state of repair, the chances are that such landlords, have not fulfilled their liability to get their place into repair. Consequently, they will get 12½ per cent. for having done very little so far. Therefore, I think the landlord is being over-generously treated in this matter. I think my suggestion that over and above the basic two-thirds he should get six per cent. on the first £100 and seven per cent. over that is entirely equitable and I would press the amendment.
I am not at all happy about the provision of 15 per cent. on the first £100 over two-thirds of the basic rent. That seems an unduly high percentage, even though the Parliamentary Secretary says that when you take account of two-thirds of the rent, the effective rate of increase would be about ten per cent. That is too high. It seems to me there would be an inducement in this sort of arrangement for a landlord to do a series of patching-up—to do repairs which would cost maybe £120 this time and get the rent increased and to spend another £120 two or three years hence and get another increase instead of doing a proper job and spending £400 now and putting the house into really effective condition.
By doing a series of patching-up jobs, reading the section, it seems to me that he can eventually get a much higher addition to his rent than if he spent the total amount immediately on putting the house into a really good state of repair. By doing it in this patchwork way, he can get the 15 per cent. on the first £100 over a number of years. For that reason, I support Senator Sheehy Skeffington's amendment.
I do not want to go over the same ground again and I shall only deal with the last point made by Senator Murphy. There is a safeguard. The stipulation is that premises must be put into a reasonable state of repair. That is a question of fact for the court to decide.
With regard to the general argument that 15 per cent—as I said, it is not 15 per cent.—is too high, I do not think we need be too much concerned in trying to stop landlords getting less or more. We are concerned with geting properties retained, repaired and preserved and we are concerned, within that context, with preserving the existing tenancies and making sure there is no undue or exorbitant disturbance of rights. So far as we can, we are trying to reconcile those two things and these provisions regarding the six, eight and 15 per cent. have been there for a long time. They have worked out satisfactorily and I think it would be unwise to change them at this stage.
Amendment put and declared lost.
Vótáil.
An Leas-Chathaoirleach
Will the Senators who desire a division please rise?
Senators P. Crowley, Miss Davidson, Murphy and Sheehy Skeffington rose.
An Leas-Chathaoirleach
The Senators will be recorded as dissenting.
I move Amendment No. 40:
In the second entry, first column, to delete "but not more than £200".
Amendment put and declared lost.
Amendments Nos. 41 and 42 not moved.
Second Schedule agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for next sitting day.
I am very grateful to the House for the manner in which they have dealt with this Bill on the Committee Stage and I should like to thank very sincerely all the Senators who have helped in the discussion and who have obviously gone to a very great deal of trouble to study the Bill carefully and see where it could be improved.