On Committee Stage, I undertook to consider a number of matters which Senators mentioned. I have gone over them and I find that I am able to meet the Seanad on a number of points. They are covered in these amendments. The first one deals with a matter which was raised by Senator Sheehy Skeffington and Senator O'Quigley: They were concerned about the position which would arise when a landlord expended money on a multiple dwelling. The present state of the law seems to leave a doubt as to what the exact position is. I was impressed by the arguments they put forward and in order to meet them, I am bringing in this amendment. Broadly, it provides that where there is expenditure on a multiple dwelling, the expenditure for the purposes of Section 10 generally can be apportioned under the different dwellings in relation to their poor law valuation.
Rent Restrictions (No. 2) Bill, 1960—Report and Final Stages.
Might I just say that I welcome the Parliamentary Secretary's attitude and the amendment as framed, which seems to meet the points which were put and constitutes a valuable addition?
Senator O'Quigley is absent on professional duties but he indicated to me that he thought this amendment very fairly met the points made in Committee and he is grateful for it.
There is one point on this amendment which perhaps the Parliamentary Secretary would clarify. I do not know whether the point was already made in Committee but if it was, perhaps the Parliamentary Secretary would not mind clearing it up again for me. As I see it in the Second Schedule to this Bill, it is provided that 15 per cent. of the first £100 can be added to the rent of the dwelling and eight per cent. on the second £100 and six per cent. thereafter. In this amendment, we are providing that the cost of the work can be spread over a number of dwellings. Could that mean that the landlord would be permitted to put 15 per cent. of £100 on to every dwelling? Supposing he spent £300 on an apartment which comprised three separate dwellings, could he take 15 per cent. in respect of each £100 and increase the rent by 15 per cent. for each £100? Or does this qualification of 15 per cent., eight per cent. and six per cent. still apply in those circumstances? I have read the amendment, the section and the Schedule and I am not clear whether or not that is definitely so.
The point was mentioned on Committee Stage and we have considered it carefully. Our intention is that the landlord is only entitled to 15 per cent., eight per cent. and six per cent. on the total amount, and I am fairly satisfied that is the effect of the section and the amendment as framed. It should work this way: you take the total expenditure and deduct two-thirds of the basic rent. This leaves you with a certain sum. You calculate what addition to the rent that sum would give on the basis of 15 per cent. on the first £100, eight per cent. on the second £100 and six per cent. thereafter. You then apportion the figure arrived at over the dwellings rateably.
Amendment No. 2 is designed to meet a point made by Senator Stanford on Committee Stage and we have accepted his argument. He suggested that when a tenant applied for a provisional order and the district justice was satisfied that there were grounds for making a provisional order, in notifying the landlord, he should give the landlord particulars of the application made by the tenant.
I suggest that the next three amendments, Nos. 3, 4 and 5, be taken together if a discussion is necessary. Separate decisions may be taken on each. Perhaps the Parliamentary Secretary would agree to that.
The Seanad will recall that on Committee Stage I indicated that I would be prepared to-make the revocation of a provisional order retrospective in a case where fraud was involved. The net effect of amendments Nos. 3, 4 and 5 is to do that. In a case where fraud is involved in the application for a provisional order, the court may revoke the provisional order retrospectively.
It seems to me that the effect of amendments Nos. 3 and 4 is rather spoilt by amendment No. 5. The passing of No. 4 in particular would mean that subsection (2) of Section 26 would read:
Where, on an application under this section, the Court is satisfied that any ground on which the application is made existed, the Court may make such new and further orders as justice may require including any order awarding costs...
and so on. It seems to me that whatever "justice may require" that should include the right to make the order retrospective, irrespective of whether fraud has been present or proved.
I think amendment No. 5 spoils the effect of amendments Nos. 3 and 4. The discretionary power given in amendment No. 4 is quite enough to allow the court, in very special circumstances, to make an order retrospective, but if it has to be proved that there has been fraud, I think that has too narrowing an effect and it seems to be a pity because, of course, there might be a genuine error about the provisional order, and the rent might have been fixed too high or too low through a genuine error. It seems to me that for either the tenant or the landlord to suffer through an error simply because it was not fraud would be very inequitable. I should prefer amendments Nos. 3 and 4 to be passed and to leave full discretionary power to the court in accordance with the requirements of justice without narrowing it down under Amendment No. 5 to the question of whether fraud is proved.
The Senator will remember what I said about this matter on Committee Stage. In this Bill we are now allowing the landlord to come in at an early stage and make his case; in other words, before a provisional order is granted. Furthermore as the law is, the district justice can, instead of revoking the order, if he decides it is necessary to make it retrospective, confirm it with modifications. This confirmation achieves retrospection. As the Bill now stands therefore the district justice has complete jurisdiction to do what the merits of the case require. We think it is well that we should spell out and leave no doubt about it that the order can be revoked retrospectively where fraud is proved, and we think that is very desirable and necessary.
It seems to me that the words which spoil the amendment are "where fraud is proved".
I plead the Fifth Amendment.
The Senator may ask a question. He may not make a speech.
Since I am not allowed to speak further, I shall ask the Parliamentary Secretary if he will consider dropping those words and giving the court the right to make it retrospective, the discretionary power to make it retrospective, irrespective of whether or not fraud could be proved.
I do not think I can go any further. I want to make it clear that we think in the clear case of fraud there should be no doubt that the district justice can go back and make it retrospective from the date of the first provisional order. In any other case, we do not think there should be retrospection. There is, of course, the interpretation there at the moment that he can confirm the provisional order with modifications.
May I be recorded as dissenting?
The Senator will be recorded as dissenting.
The Seanad will recall this matter of the devolution on the death of the tenant of a controlled dwelling. The Seanad was concerned that the present state of the law was fairly doubtful and it was thought that there could be a lot of litigation in certain circumstances to determine whether or not certain members of the family were entitled to succeed to the decontrolled dwelling on the same terms and conditions as the deceased tenant. We had quite a lot of discussion about this on Committee Stage, and I have acceded to the wishes of the Seanad generally, and have had drafted a definition of who is to be included in the family for this particular purpose. I think the definition should be satisfactory from all points of view. It is fairly wide and it includes practically everyone who was mentioned on Committee Stage, except two people who were included in Senator O'Quigley's definition.
Grand-aunt and grand-uncle?
Yes. I think the definition we now have meets the wishes of the Seanad generally.
The amendment proposed by the Parliamentary Secretary is an admirable one, and there is only one word in it to which I take exception, that is, "six" in paragraph (b) which provides that the relevant bona fide residence with the tenant should begin less than six years before the tenant's death, and that “a person adopted” and so on “shall be considered the legitimate offspring.” It seems to me that six years is a rather long time. It is quite possible that an adopted child, before the end of one year, would be very much part of the family—or two or three years. I agree that the number of cases in which this would arise would be rare because clearly an adopted child who is only three or four years with a family is unlikely to become the tenant except in the case of serious accident, and so on. Nevertheless, the suggestion underlying this that the adopted child is not really a firm part of the family until after six years is anathema to me.
The Senator will recall that as the Bill was originally drafted, it was ten years. After considerable discussion in the Seanad, I agreed to change it to six, and I thought I had met the wishes of the House generally.
This goes further than the Fatal Injuries Act. It is a wider definition than the definition of "family" in the Fatal Injuries Act, is it not?
It is, yes. Senator Sheehy Skeffington is concerned to narrow down the period of time because of which someone will be considered to be bona fide resident. I thought I had been quite magnanimous in lowering “ten” to “six” and that I had met the wishes of the House generally.
It is a concession, but I was hoping for more.