Before we commence, I remind the House that Senators may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. In addition, each amendment must be seconded on Report Stage. In respect of the expected recommittal motions, I understand that as the Government amendments Nos. 15, 19, 20, 44, 47 and 48 do not arise from committee proceedings, Senator Jim Walsh will move a recommittal motion for each of them as they arise. I understand that Senator Tuffy will also be seeking recommittal in respect of her amendments Nos. 1, 5 to 11, inclusive, and 13 and 14, which do not arise from committee proceedings. Is that agreed? Agreed. I call on Senator Tuffy to move amendment No. 1.
Land and Conveyancing Law Reform Bill 2006: Report and Final Stages.
Acting Chairman
May we have the list of groupings?
Acting Chairman
Yes.
Bill recommitted in respect of amendment No. 1.
I move amendment No. 1:
In page 13, line 15, to delete "and Conveyancing".
I propose this amendment because I believe that a major Bill such as this one should have a reasonably short and simple Title. It would be appropriate to have the wording as it would stand once my amendment was accepted.
This Bill will eventually become an Act. If it was referred to simply as a Land Act it would give a misleading impression as to what kind of Act it was. The Land Acts generally concerned land purchase and registry, whereas this Bill is slightly different. Its equivalent in the United Kingdom in 1925, which shows the House how far behind we are, was called the Law of Real Property Act. Most people do not know the difference between real and personal property anymore. These terms mean nothing. Therefore, I chose the Title to say that it is a law reform Bill to deal with land and conveyancing law. I would prefer to keep that Title.
Amendment, by leave, withdrawn.
Bill reported without amendment.
I move amendment No. 2:
In page 15, line 5, after "land," to insert "unless excluded from any interest in land,".
Senator Terry took this Bill for me on Committee Stage, for which I am grateful. I see that the definition of "land" is included in page 15 of the Bill, which deals with the point in question. Therefore, I wish to withdraw the amendment.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 3 and 4 are technical alternatives to the same Part of the Bill, and may be discussed together by agreement.
Government amendment No. 3:
In page 17, to delete line 13 and substitute the following:
"(e) if the person concerned has agreed to service of notices by means of an electronic communication (within the meaning assigned by section 2 of the Electronic Commerce Act 2000) to that person (being an addressee within the meaning assigned by that section) and provided that there is a facility to confirm receipt of electronic mail and that such receipt has been confirmed, then by that means; or
(f) by sending it by means of a facsimile machine to a device or facility for the reception of facsimiles located at the address at which the person ordinarily resides or carries on business or, if an address for the service of notices has been furnished by the person, that address, provided that the sender’s facsimile machine generates a message confirming successful transmission of the total number of pages of the notice; or
(g) by any other means that may be prescribed.”.
Amendment No. 3 makes more detailed provision for the service of notices by electronic communication and by means of facsimile. It is an alternative to Senator Tuffy's amendment and deals in greater detail with the issues raised in her amendment. I thank her for drawing my attention to this matter by tabling her original amendment and retabling it for this debate.
I welcome the fact that the Minister has proposed this amendment. As a result, I will not move my amendment.
Amendment agreed to.
Amendment No. 4 not moved.
Acting Chairman
Recommittal is necessary in respect of amendments Nos. 5 to 11, inclusive, as they do not arise from Committee Stage proceedings. Amendments Nos. 5, 6, 44 and 46 may be discussed together by agreement.
Bill recommitted in respect of amendments Nos. 5 to 11, inclusive.
I move amendment No. 5:
In page 17, line 37, after "giving" to insert "full".
The Minister's amendment may deal with some of the issues I am raising. The purpose of amendment No. 5 is to give the Minister greater discretion to compensate for the removal of the power to modify Acts. Regarding amendment No. 6, we believe the subsection, as it stands, would be of dubious constitutionality as it allows the Minister to amend the law by regulations and we refer, in that regard, to the recent Supreme Court decision on Mulcreevy v. the Minister for the Environment, Heritage and Local Government.
Regarding amendments Nos. 5 and 6, subsection (1) is a standard type of provision for the making of regulations on an ongoing basis. Subsection (2), on the other hand, is an exceptional and time-limited provision designed to deal with any unforeseen difficulties in implementing the Act or other statutes it amends. Any modifications made to such regulations must be in conformity with the purposes, principles and spirit of the Act. In this sense it is not simply a general licence to the Minister to modify the Act by legislation. Many existing statutes contain a similar limited safeguard provision on these lines and I can see no constitutional reason to remove subsection (2).
If this subsection were used in a manner that violated the principle or purpose of the Act it would be subject to judicial review and the Judiciary would be keen to prevent the Minister from perverting the meaning of the Act. It is customary in broad-ranging reforms of this kind to make provisions like this, rather than allow the whole edifice fall flat owing to an unforeseen difficulty. This is frequently done in other major reforming statutes.
While considering Senator Tuffy's amendment it became clear that some matters would be more appropriate for rules of court. Arising from this I tabled amendments Nos. 44 and 46 which provide the detailed rules for the registration of both judgments and lis pendens will be set out in future rules of court rather than in regulations under section 5.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
I move amendment No. 7:
In page 18, line 27, after "subsection (1),” to insert the following:
"and without prejudice to section 26(2)(f) of the Act of 2005,”.
We tabled this amendment to make it clear that the rule in section 8(2) is unnecessary as the same point is stated in the Interpretation Act 2005, section 26(2)(f).
This is largely a matter of drafting. I do not see a good reason to include a specific reference to section 26 of the Interpretation Act 2005 in section 8(2). The Interpretation Act, by definition, applies to all Acts of the Oireachtas and all of its provisions, including section 26, will apply to this legislation when enacted.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 18, after line 40, to insert the following:
"(3) In so far as they survive, titles of honour or dignity arising from feudal baronies and manorial lordships are abolished.
(4) If after the commencement of this section a person purports to sell or offer for sale a title of honour or dignity abolished by subsection (3), he or she shall be guilty of an offence.”.
I raised this issue when the Bill was discussed by the joint committee with Professor Wylie. The Government official said the Department found it difficult to address this in the legislation. The issue of the sale of bogus titles has been raised with the Labour Party, other parties and the Minister and his party by the Genealogical Society of Ireland. According to the society, such titles should be registered as incorporeal hereditament and continue to exist in law. Consequently they need to be abolished specifically and I wondered if the Minister had further thoughts on the issue.
This is a proposal to prevent people from purporting to convey feudal baronies and manorial lordships, a class of incorporeal hereditament under the present law. The group that devised the Bill examined this issue and came to the conclusion that, whatever of their origin in the feudal era, titles of honour had evolved over the centuries into personal rights now rather than interests in the land and should not, therefore, be dealt with in the Bill. I tend to agree with their view that, since titles do not amount to an interest in land, this Bill is not the appropriate legislation in which to address the matter.
Professor Wylie said something similar to the Minister so I accept his response. The matter may be raised by my party in the Dáil, given another opportunity to consider it. I hope the Genealogical Society of Ireland will be happy with the Minister's explanation.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 19, line 5, to delete "in" and substitute "under".
This is a drafting amendment as, we believe, section 9(3)(b), as worded, suggests it only affects section 10, rather than the concept of an estate generally.
Section 10 contains provisions relating to the concept of an estate in land and section 9(3) makes a reference to that concept as set out in section 10. I cannot see any reason to substitute the word "under" for "in" as proposed in the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 19, between lines 10 and 11, to insert the following:
"(4) Subject to this Act a fee simple shall be freely alienable by the owner thereof.".
While section 9(3)(c) states that section 9(2) does not affect the rule against inalienability, the rule itself is contained in an Act that is repealed by section 8(3) so the rule is not stated in the Bill. This has the potential to cause confusion so we believe it is necessary to state the rule in the Bill so that it is clear what rule it refers to.
I do not believe this is necessary but I will consider the point between now and the debate in the other House. If I change my mind I will deal with the matter in that House, if that satisfies the Senator.
Amendment, by leave, withdrawn.
I move amendment No. 11:
In page 19, between lines 10 and 11, to insert the following:
"(4) A tenant of a local authority who whether before or after the commencement of this section purchases a fee simple from the authority may alienate the fee simple without the consent of the authority.".
This amendment might be more appropriate to a housing Bill but I have become aware, as a public representative and a solicitor, that a council tenant when purchasing a council house needs the consent of the local authority for the first sale or transfer. This also applies when tenants who have purchased a house wish to put it in the names of both spouses. I have often encountered former local authority tenants in these circumstances.
It was common practice in the 1960s and 1970s to put tenancy agreements in the name of the husband. As a result, when houses were purchased from local authorities in the 1980s, ownership transferred to the husband whereas nowadays it is taken for granted that a husband and wife will acquire or transfer property in both names.
Rectifying this problem requires a straightforward change. It is in the interest of everyone concerned that a house be in the names of both spouses. In many cases, couples fail to do this until they are about to make a will when they will seek to ensure that, in the event of the death of one spouse, the surviving spouse is not required to incur the expense involved in getting probate.
We discussed whether a property should be in joint ownership or tenancy in common. It is beneficial for a husband and wife to have their house in both names in order that a surviving spouse will keep the house when his or her spouse dies. In such circumstances, the surviving spouse need only bring to the Land Registry a declaration that his or her spouse died and a copy of the dead spouse's birth certificate. This process does not cost much whereas probate and transfers require the services of a solicitor which can involve substantial cost. The purpose of the amendment is to allow former tenant purchasers to transfer a house into the names of both spouses without first securing the consent of their local authority. I realise, however, that this legislation may not be the correct forum in which to address the issue because the relevant provision is in another Act.
I agree with Senator Tuffy on the issue of transfers. During many years of service on a local authority I always considered it an anomaly and encumbrance that tenants who had purchased a local authority house were required to deal with the local authority before selling on the house. This requirement is an unnecessary intrusion. Senator Tuffy's former leader recently informed me that, as a result of the increase in the value of property in Ringsend in Dublin, those who bought their homes through the tenant purchase scheme were investing in foreign property or buying homes in the countryside. This has improved their quality of life and encouraged family members to visit them abroad. It is great that people who once qualified for a local authority house because they could not afford to buy their own property are reaping the benefits of the tenant purchase scheme. Interference in this area should be kept to a minimum. Like Senator Tuffy, I am not certain this is the correct legislation in which to address the matter.
I agree with Senator Tuffy on the matter of a fee simple being unencumbered. I will draw her remarks to the attention of my colleague, the Minister for the Environment, Heritage and Local Government, Deputy Roche, because the issue should be considered in a housing or local government Act. I am loath to accept the amendment in the context of this legislation. It is also a policy area where I would have to obtain the say-so of the Minister. If it is of any assistance to the Senator, I agree with her and Senator Jim Walsh on this issue.
I appreciate the support of Senator Jim Walsh and the Minister.
Amendment, by leave, withdrawn.
Bill reported without amendment.
I move amendment No. 12:
In page 20, between lines 35 and 36, to insert the following:
12.—(1) (a) It shall be a condition of any planning permission for an apartment development that the applicant will form a management company and arrange for the issue of shares in the company to purchasers of apartments in the development.
(b) Where a permission has been granted prior to the commencement of this section for an apartment development, the developer shall form a management company (if not already formed) and arrange for the issue of shares in the company to purchasers of apartments in the development (if not already issued) within 12 months of the commencement of this section.
(2) Section 34(4)(f) of the Act of 2000 is amended by the addition after “houses” of “or apartments”.
(3) On demand made by a majority of the purchasers of apartments in an apartment development, or on completion of the development, whichever first occurs, or in the case of developments completed prior to the commencement of this section, on the date which is 12 months from the commencement of this section, the developer shall transfer ownership and management of all common areas to the management company referred to in subsection (1).
(4) A purchaser may apply in a summary manner to the court in the event of a failure to comply with this section and the court may require the applicant or developer to take such steps as the court directs to comply with the section and to pay compensation to the purchaser in such amount as the court thinks fit.".
It is essential the Government address the issue raised in the amendment, although this legislation may not be the most appropriate place to do so. A recent report by the National Consumer Agency noted the need to regulate management companies, with which many people have problems. In some areas, councils are wrongly establishing management companies for mixed developments that include housing. While I accept the need to have management companies for apartment developments, they should be regulated. Legislation should be introduced specifying that such companies must be non-profit making and their membership must consist of residents of the apartments in question who should determine which persons may be employed by the management company to provide various services.
This detailed amendment addresses some of the problems arising from the use of management companies and is similar to provisions contained in legislation on apartment owners introduced in the United Kingdom. That legislation should be examined in light of the increasing number of apartments being built which is, incidentally, not a good idea.
I second the amendment.
I thank Senator Tuffy for raising the issue on which I am in a position to report progress. Since the matter was last debated in the House, I have had an interesting meeting with Ann Fitzgerald, the chair of the National Consumer Agency, at which we discussed management charges. As the Senator noted, this is a complex area because it relates to apartment blocks. In some cases, it involves what are called gated developments while in others it relates to open spaces in old suburban areas which, although shared spaces, are becoming extremely valuable and have never been vested in local authorities. Pressure is being exerted to build in these areas and all sorts of issues arise.
There is also the issue of developments, particularly in west Dublin and adjoining counties, where it could be suggested that local authorities semi-privatised their functions by requiring developers who build large estates to establish a management company to provide lighting and maintenance of public areas in their estates. This has given rise to the peculiar situation in certain areas that some estates have been taken in charge, while the residents of other estates are liable to large annual bills for the same services their near neighbours have provided free of charge by the local authority.
Having considered these issues, the Minister for the Environment, Heritage and Local Government, Deputy Roche, and I have agreed to establish an interdepartmental working group to make progress on the issue of estate management charges. To kick-start this process, on 25 January next, we will have a major conference to which we will invite all the interested parties to discuss the issues and possible solutions. This is not an easy task as one cannot cure all these problems on the back of an envelope.
Even in relation to apartment complexes, some of the conveyancing documents provide that the management company does not come into existence until the developer has sold off all the apartments and that a temporary arrangement exists in the meantime. If the developer does not sell off all the apartments, he or she effectively will be required to keep in place indefinitely the contemporary arrangement against the wishes of the tenants.
While I do not wish to be too prescriptive at this stage, it occurs to me that we should establish a body to which apartment owners and others who live in communal areas can apply when a company has not been formed to enfranchise the owners by giving them the right to found a management company or, where a management company has collapsed or is in deadlock, to which tenants in such circumstances can submit a scheme of reconstruction for the management company so things can start again for those tenants in a way that is fair to all. Legislation will be needed but I want a conference to ventilate these issues first so people will have an input instead of the Department deciding a policy in secret.
It would be important to involve those experiencing problems in any such conference. The managing agents for an estate in Lucan organised a meeting miles away from the estate at an inconvenient time to make it impossible for most people to attend, although they are supposed to be members of the management company. The establishment of a body where people could raise such issues would be of benefit.
Amendment, by leave, withdrawn.
Acting Chairman
Recommittal is necessary in respect of amendments Nos. 13 to 21, inclusive, as they do not arise from Committee Stage proceedings.
Bill recommitted in respect of amendments Nos. 13 to 21, inclusive.
I move amendment No. 13:
In page 21, line 14, to delete "section 11(4)” and substitute “section 11(3)”.
This amendment corrects an error. Section 11(5) is an exception to section 11(3), not section 11(4), which deals only with contracts.
Section 11(4) contains a list of legal interests in land that can be created or disposed of but it does not include fee farm rents. Section 12(5) contains a saver for legal fee farm rents existing on the day on which this part of the Act is commenced. The Parliamentary Counsel has advise that the reference in section 12(5) to section 11(4) is technically correct and I do not therefore propose to accept the amendment.
Amendment by leave withdrawn.
I move amendment No. 14:
In page 21, between lines 31 and 32, to insert the following:
"(4) Where on the commencement of this section, or on a person becoming entitled to a fee tail after such commencement, another person's estate or interest inland is extinguished by virtue of subsection (3), the second-mentioned person may apply to the court within 12 years of such extinguishment for an order determining the amount of compensation if any that should be paid to the second-mentioned person, and such order may make provision for charging the payment on the land subject to such conditions as the court sees fit.”.
University College Cork academic Mr. John Mee has pointed out that section 13(3) may be unconstitutional as it provides for the abolition of property rights without compensation. Our amendment is designed to save the section from being struck down as unconstitutional by allowing a court to determine if compensation should be paid.
It has been the case since the 19th century that entails can be barred without compensation. I do not want to dispute the constitutionality or otherwise of a section with a learned academic but one of the aims of the Constitution is that property rights should be exercisable and regulated in accordance with the common good. Entails are not generally synonymous with the common good. They are an anachronism and usually contrary to the common good.
Section 13 was amended on Committee Stage to ensure consistency between sections 13(3) and (4) by providing that the conversion of a fee tail into a fee simple would only take place where any protectorship has ended. That was intended to avoid interference with any existing interest in the land but the contingent interest in a fee tail situation is not one we accept merits provision for compensation. I ask Senator Tuffy to reconsider her amendments in light of the changes made on Committee Stage and suggest that the constitutional argument is not as simple as was pointed out in the article in question.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 20 and 28 are related to Government amendment No. 15, which does not arise from committee proceedings, and they will be discussed together by agreement.
Government amendment No. 15:
In page 23, to delete lines 29 to 32 and substitute the following:
"(6) If such presumption is applied to a person but subsequently rebutted by proof to the contrary, that person may bring an action for damages or another remedy for any loss suffered.
(7) In dealing with an action undersubsection (6), the court may make such order as appears to it to be just and equitable in the circumstances of the case.”.
Following Committee Stage, all provisions in the Bill related to court proceedings were examined in light of the Committee Stage amendment tabled by Senator Cummins. Arising from the examination I have tabled amendments Nos. 15 and 20, which provide that in dealing with applications under section 18(6) and section 29, the court may make such orders as appear to it be just and equitable in the circumstances of the case. I thank Senator Cummins for raising the issue.
As regards amendment No. 28 tabled by Senator Cummins, having examined the wording of section 53(2), the draftsman advises me that the term "as it thinks fit" is more appropriate than "as is just and equitable" in that particular case because it deals with contracts and, therefore, I will not be accepting it.
I thank the Minister for referring to our Committee Stage amendments.
Amendment agreed to.
Acting Chairman
Amendment Nos. 17 to 19, inclusive and 21 are related to amendment No. 16 and may be discussed together.
I move amendment No. 16:
In page 27, between lines 36 and 37 to insert the following:
28.—Where a co-ownership is to be established, it shall be established as a tenancy in common and no joint tenancy shall be created unless—
(a) it is the stated intention of all parties to the co-ownership to create a joint tenancy, and
(b) each party to the co-ownership has signed a declaration to the effect that he or she understands—
(i) the difference between a tenancy in common and a joint tenancy,
(ii) that the creation of a joint tenancy means that, upon his or her death, his or her interest in the land passes automatically to the surviving co-owner(s), and
(iii) that a joint tenancy cannot be severed other than in accordance with section 28.”.
This was discussed at length on Committee Stage. I believe many joint tenancies are unintentionally created by buyers as they unaware of the consequences of their actions in this respect. The amendment would not make the creation of a joint tenancy any more difficult but it would ensure informed decisions by buyers. With the increased measures laid out in section 28, it would be more difficult for joint tenants to sever a joint tenancy or convert it to a tenancy in common. This should be accompanied by the increased safeguards against purchasers making decisions on the basis of misconceptions. I read the debate on Committee Stage and the points made by Senator Tuffy so I am interested in hearing the Minister's opinion.
As I said on Committee Stage, I am unsure that the amendment should be accepted but tenancies in common and joint tenancies are an issue. Could this be simply addressed by a change in terminology? Perhaps "joint tenancy (automatically terminating at death)" could be used to make it clear that there is a termination period for a joint tenancy that would put people on notice that they were entering into something they may not have intended. Perhaps "tenancy in common (including successors and assigns)" might signal enough to people. Where it is set out in legal documents, there would be an expansion of the terminology that clearly signals the implications. As I have stated before and was acknowledged by the Minister, it is not only immigrants who have difficulty, and most Irish people would not be able to make the legal distinction between a tenancy in common and a joint tenancy.
I always remember, while studying property law in King's Inns, trying to memorise the distinguishing features between a tenancy in common and a joint tenancy. It occurs to me out of the blue after 35 years that there was an acronym to remind me of the distinguishing characteristics of joint tenancy, PITT. It stood for possession, interest, time and tenure. I knew going into the examination hall that I would be able to parrot it back out. With all the accumulated knowledge, I would be a right idiot to abolish the difference.
Not after having gone to that trouble of learning the difference.
Yes. The intention behind Senator Cummins's amendment No. 16 is to require co-owners to take deliberate steps to create a joint tenancy, if that is their collective wish. Otherwise, a tenancy in common would be the default position. What we are discussing is really a choice of default positions.
Senator Cummins will have read the debate on the previous Stage where I indicated I would consider the issue carefully, and we did so in the Department. Although many people may not be aware of the legal implication of creating a joint tenancy rather than a tenancy in common, we remain unsatisfied that it is a sufficient reason to change the law and produce a different default position.
Almost everyone who buys property in Ireland will need to hire a solicitor to engage in the conveyance of the property. It is a matter, usually for the solicitor, to fully advise the client on the legal implication of either form of conveyance. Any person intending to buy property, be it in Ireland or abroad, would be very foolish to do so without getting independent legal advice on a matter of such importance, particularly if the person is unfamiliar with the law.
I am also mindful that the intention of the amendment would perhaps be inconsistent with section 14 of the Family Home Protection Act 1976, which encourages married couples to create joint tenancies in respect of family homes by reducing the costs involved in creating joint tenancies. It is a value of that Act that the costs of creating a joint tenancy are reduced compared with other transactions.
Section 14 states, "No stamp duty, land registration fee, Registry of Deeds fee or court fee shall be payable on any transaction creating a joint tenancy between spouses in respect of a family home where the home was immediately prior to such transaction owned by either spouse or by both spouses otherwise than as joint tenants." In that case we effectively give a subsidy or tax exemption for a transaction going in favour of joint tenancy.
With regard to other amendments in the grouping, amendment No. 17 is a drafting amendment, with amendments Nos. 18 and 21 consequential to amendments accepted on Committee Stage. Amendment No. 19 amends section 28(3) by deleting the reference to the vesting of an estate or an interest of an insolvent joint tenant in the official assignee or a liquidator.
It emerged during the consideration triggered by Senator Cummins's original amendment that operation of the right of survivorship could create difficulties if a joint tenancy were deemed not to be severed in the case of a bankruptcy or liquidation. The amendment also clarifies that while the registration of a judgment mortgage against a joint tenant does not sever the joint tenancy, the judgment mortgage is extinguished in the event of the death of the judgment debtor, and it does not remain a burden on the surviving joint tenant or tenants.
That is an important point. For example, if a husband and wife own a house as joint tenants, and if the wife, to take an unusual example, ran up debts and a judgment mortgage was registered against her interest in the land, it would die with her. The husband's interest in survivorship would be taken clear of the judgment mortgage.
I was not going to speak to this amendment, but there is another issue if it is automatic for it to become tenancy in common instead of joint tenancy. Tenancy in common can be held in different shares, and there could not be an automatic tenancy in common without clarifying the shares.
With a joint tenancy, the survivor does not lose anything, but with a tenancy in common the survivor loses something if it is wrongly assumed. If a tenancy in common is assumed, a living person on the title deeds could lose out if a mistake occurred. The person could lose half a house, for example, as it could go to the estate. Much more could be lost by the survivor if there is an assumption in favour of the tenancy in common in preference to the joint tenancy. I make these points in case the issue arises in the Dáil.
I am grateful to Senator Tuffy and if the argument is made again in the Dáil, I will summon her in aid on this matter.
Senator Walsh suggested we should change the title to clarify the meaning of each term. That is tempting on one level, but there is a volume of existing case law, law books, legal dictionaries etc., all of which deal with joint tenancy. If we came up with different labels, even if they had the advantage of being more explicit to the lay person, it would probably make the law much more difficult for lawyers. We will leave it as it is.
Amendment, by leave, withdrawn.
Government amendment No. 17:
In page 28, line 1, to delete "one" and substitute "a".
Amendment agreed to.
Government amendment No. 18:
In page 28, line 2, after "equity" to insert "unless such consent is dispensed with undersection 29(2)(d)”.
Amendment agreed to.
Government amendment No. 19:
In page 28, to delete lines 6 to 11 and substitute the following:
"(3) From the commencement of this Part, registration of a judgment mortgage against the estate or interest in land of a joint tenant does not sever the joint tenancy and if the joint tenancy remains unsevered, the judgment mortgage is extinguished upon the death of the judgment debtor.".
Amendment agreed to.
Government amendment No. 20:
In page 28, line 27, to delete "the court thinks fit" and substitute "appears to the court to be just and equitable".
Amendment agreed to.
Government amendment No. 21:
In page 28, line 37, after "creditor" to insert ", a judgment mortgagee".
Amendment agreed to.
Bill reported with amendments.
I move amendment No. 22:
In page 30, line 28, to delete "only on registration of a court order" and substitute "on registration of a court order or otherwise".
This relates to easements and profit à prendre, specifically “An easement or profit à prendre shall be acquired at law by prescription only on registration of a court order under this section”. It appears to be unduly onerous and as was stated on Committee Stage, a deed surely can be created to acknowledge such a right without the necessity for a court order.
There is a contradiction between section 33(2) and section 38(2), which states, "A conveyance of land creates for the benefit of that land any easement or profit à prendre over the land retained by the grantor which it is reasonable to assume, in the circumstances of the case, was, or would have been if they had adverted to the matter, within the contemplation of the parties at the date of the conveyance as being included in it.” It is assumed that, had it been discussed at the time of the agreement, the parties would have accepted that the easement or profit à prendre formed part of the conveyance.
No court order appears to be necessary in respect of section 38, and this appears to contradict somewhat the provisions in section 33. We were asked to submit this amendment again on Report Stage and I welcome the Minister's comments on it.
I second the amendment.
As I explained on Committee Stage, I do not propose to accept this amendment. Introducing the words "or otherwise" without any definition of what "otherwise" might mean could render the section vague and uncertain. The provisions in section 33 which replaced the provisions of the Prescription Acts 1832 and 1858 are based on detailed Law Reform Commission recommendations set out in its report on easements and profits à prendre by prescription, which is Law Reform Commission report 66 of 2002. Section 33 clarifies and simplifies the existing law providing that legal title to an easement or profit by prescription may only be obtained by a claimant on the basis of a court order which is then registered in the Land Registry or the Registry of Deeds. Section 69 of the Registration of Title Act 1964 provides for the registration of easements or profits not created by express grant or reservation or by means of such a court order.
With reference to what Senator Cummins was saying about section 38, the disposition we are dealing with in subsection 38(2) would normally be done by way of deed. I do not think it is necessary, therefore, to make the proposed amendment No. 22.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 23 to 25, inclusive, are related and may be discussed together by agreement.
Government amendment No. 23:
In page 32, line 5, to delete "any part disposed of" and substitute "such part or parts".
These are minor drafting amendments and I commend them to the House.
Amendment agreed to.
Government amendment No. 24:
In page 32, line 6, to delete "by the grantor".
Amendment agreed to.
Government amendment No. 25:
In page 32, line 8, after "of," to insert "and".
Amendment agreed to.
I move amendment No. 26:
In page 34, to delete line 38 to 40 and substitute the following:
"43—(1) Where a building owner and an adjoining owner are in dispute in relation to the exercise or proposed exercise of rights under section 42, either party may apply to the court in a summary manner and the court may give such directions as it thinks fit, and may in particular make an order authorising the carrying out of specified”.
I tabled this amendment on Committee Stage. The Minister did not see the need to make this provision. If the builder owner is in dispute with the adjoining owner about the exercise of rights under section 42, he or she may apply to the court. It would seem that in the case of a dispute, either side should be able to go to court. I do not understand why both sides cannot have the ability to go to court to settle an issue under dispute.
I second the amendment.
Although one can call it the building owner or use the phrase, "builder", we are dealing with one neighbour and another neighbour. One neighbour wants something to happen and is the active neighbour. We do not see any reason a passive neighbour would want to go to court if the active neighbour who wanted to do something did not want to go to court. We do not want a situation where if something is not going to happen and the would-be building owner is not disposed to go to court, in some circumstance he would be brought to court by the passive neighbour who has no proposal in mind to have a matter adjudicated which is almost moot. In light of the Committee Stage debate, I re-examined this amendment but my mind has not changed. I ask the Senator to withdraw the amendment.
What if there were a dispute over the money to be paid under the provision? Section 42 refers to making good all the damage caused to the adjoining owner. What if the adjoining owner had issues about those provisions? Should he not be allowed go to court?
It is obvious that the best way to deal with those issues in a dispute is by means of arbitration. I suggest we need to start writing arbitration into the legislation. I referred to this before and it may be relevant here.
I agree with the Senator. Most fair and reasonable solicitors should now inform their clients. The superior courts in England have now come to the point where they direct solicitors who fail to inform their clients about alternative dispute resolution, including conciliation and arbitration, that the solicitor may be liable for the costs of going to court. Without being too prescriptive again, sometimes people are very trigger happy with litigation and it might be a good idea if the courts fired a few shots across bows of people who go to court first and ask questions later, so to speak.
If a building owner fails within a reasonable time to pay reasonable costs or compensation under section 42(2), the adjoining owner can recover such costs and expenses or compensation as a simple contract debt in a court of competent jurisdiction. This is the remedy to allow the adjoining owner to get compensation from a court.
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 35, between lines 22 and 23 to insert the following:
46.—Where a person complains that trees or hedges grown or maintained by a neighbouring owner are of such a height as to constitute an unreasonable interference with any easement enjoyed by the complaining owner, or unreasonably interfere with light whether or not an easement exists in that regard, the person may apply to the court which may make such order, including an order directing the neighbouring owner to remove or reduce the height of any trees or hedges.".
I raised this issue on Committee Stage and I have raised it again. I realise the Minister may not accept it. These issues may need to be considered in the future. I agree with the Minister when he says he supports the idea of alternative dispute resolution. There is a need to give statutory footing to such a proposal by means of a recognised body. It would be preferable to have a system of arbitration in place.
I second the amendment. I agree with Senator Tuffy. There is a problem with hedges. Some neighbours do not give a damn about their property or the other person's property. The last thing they want to do is to go to court. They would prefer to have it resolved in some way. The Senator has made a reasonable suggestion that some type of resolution body would be put in place to solve disputes such as this between adjoining landowners and neighbours as it causes major problems.
As I said on Committee Stage, I fully sympathise with the motive for this amendment. It is really a planning Act matter and is something which should not end up in land law courts. It would be a mistake to put it into a Land and Conveyancing Law Reform Bill. It is well worthwhile pursuing and I will write to the Minister for the Environment, Heritage and Local Government, Deputy Roche, and draw to his attention the unanimous view of this House that this is an area which requires reform.
Amendment, by leave, withdrawn.
Amendment No. 28 not moved.
Acting Chairman
Amendments Nos. 29 and 30 are technical alternatives to the same part of the Bill and may be discussed together by agreement.
I move amendment No. 29:
In page 39, to delete lines 19 to 23.
This amendment was tabled on Committee Stage. We did not see any merit in this paragraph of the Bill. We outlined our concerns and the Minister agreed to consider it and come back on Report Stage.
I second the amendment.
This amendment was discussed on Committee Stage. Section 3 of the Conveyancing Act 1881 provides that subject to certain exceptions, a purchaser is precluded from requiring production of any title documents dated or made before the time prescribed by law or stipulated in the contract for the commencement of the title and from making requisitions, objections or inquiries as to such prior title.
The Law Society standard contract for sale now contains provisions of a similar nature and these provisions are intended to facilitate effective conveyancing of land while at the same time protecting the interests of purchasers. I am not aware of any concerns on the part of the Law Society in respect of section 56(1) of the Bill as it now stands.
I do not wish to create a charter for people to mess around, so to speak, in conveyancing. There are some people who put down a deposit on land and while they get together a line of credit or whatever, throw up a kind of screen of anti-aircraft fire, so to speak, to prevent the conveyance going through and prevent themselves from having to complete the transaction. If we deviate from normal commercial practice to allow people to insist on old title documents to be produced, I feel this would be abused by people to delay conveyancing and through up false obstructions in the paths of others. Occasionally, the contract will have to exclude certain documents which have been lost or misplaced. I have often seen cases where people have sought additional time to get together the banking facilities for loans just to think of any old reason not to complete the contract and spurious requisitions are sent to the other side. I do not want to give life to that kind of conveyancing messing around, it is often done in bad faith.
Amendment, by leave, withdrawn.
Government amendment No. 30:
In page 39, line 20, to delete "prescribed by" and substitute "referred to in".
Acting Chairman
This amendment has already been discussed with amendment No. 29.
Amendment agreed to.
Government amendment No. 31:
In page 43, to delete lines 19 to 22 and substitute the following:
"(III) the individual's signature is acknowledged by him or her in the presence of a witness who attests the signature, and
(IV) if the instrument would not be enforceable unless it is made under seal, it is sealed by the individual;".
This amendment arises from a discussion on Committee Stage about formalities required for deeds. Section 62 of the Bill gives effect to the Law Reform Commission's report on land and conveyancing law and further general proposals in the execution of deeds. The commission recommended the inclusion of a reference to the sealing of documents to take account of the long-established common law doctrine which provides that a contract made without consideration is enforceable if, but only if, it is made under seal.
This amendment makes it clear that where an instrument would be unenforceable unless it was made under seal, such as a contract where there is no consideration involved, both an attested signature and the individual seal are required.
Amendment agreed to.
Acting Chairman
Amendments Nos. 33 to 36, inclusive, are related to amendment No. 32. Amendments Nos. 32 to 36, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 32:
In page 54, line 25, to delete "purporting to" and substitute "which would otherwise".
These are drafting amendments which clarify the scope of the section and ensure consistency in the terms used in it. The amendments to section 87 are drafting amendments to ensure section 87 is consistent with section 86.
Amendment agreed to.
Government amendment No. 33:
In page 54, line 34, to delete "charge" and substitute "mortgage".
Amendment agreed to.
Government amendment No. 34:
In page 54, line 35, to delete "charge" and substitute "mortgage".
Amendment agreed to.
Government amendment No. 35:
In page 55, line 9, to delete "legal".
Amendment agreed to.
Government amendment No. 36:
In page 55, line 20, to delete "legal".
Amendment agreed to.
I move amendment No. 37:
In page 58, line 9, after "unless" to insert the following:
", not more than one year before such taking of possession,".
This amendment is designed to make clear that a bank or building society cannot take possession without a court order, merely because they got the home owner to consent when taking out the mortgage. For the consent to the valid, it must be one in contemplation of the specific taking of possession.
Acting Chairman
Is the amendment being seconded?
I second the amendment.
The acceptance of this amendment would mean every financial institution would be required to update each mortgagor's consent annually or, failing that, go to court in each and every case arising. That would create either additional administration costs for mortgagees or additional court related costs for mortgagees or mortgagors. We do not believe this would be in the public interest.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments No. 39 to 42, inclusive, are related to amendment No. 38 and may be discussed together.
I move amendment No. 38:
In page 59, line 4, after "apply" to insert "ex parte”.
We also proposed this on Committee Stage. The purpose of the amendment is to make clear that an application can be immediate and without notice. I know the Minister has said it would not be desirable to accept this amendment. However, there could be urgent circumstances that require steps to be taken and ex parte applications would be required.
Amendment, by leave, withdrawn.
I move amendment No. 39:
In page 59, lines 4 to 6, to delete all words from and including "the" where it secondly occurs in line 4 down to and including "property," in line 6 and substitute "the court or the District Court".
We also proposed this amendment on Committee Stage. We felt it would be good to allow flexibility so that applications could be made to the District, Circuit or High Courts.
Government amendments Nos. 40 to 42, inclusive, deal with the issues tabled in amendment No. 38. I do not favour allowing ex parte applications. The section deals with cases where the mortgagee has reasonable grounds for believing the mortgaged property has been abandoned but that may not be the case. To allow ex parte applications means they could be open to abuse and that would not be in the public interest. However, as an alternative to permitting ex parte applications, amendment No. 41 provides that the court will be allowed to make an order “notwithstanding that the mortgagor dissents or does not appear”. It makes clear that the non-appearance of the mortgagor is not fatal to the making of a court order. It is as good as we can do to compromise on this.
Amendment, by leave, withdrawn.
Government amendment No. 40:
In page 59, line 7, to delete "on such terms and conditions as the court thinks fit".
Amendment agreed to.
Government amendment No. 41:
In page 59, between lines 7 and 8, to insert the following:
"(2) On such an application the court may make an order authorising the mortgagee to take possession of the property on such terms and conditions as the court thinks fit, notwithstanding that the mortgagor dissents or does not appear.".
Amendment agreed to.
Government amendment No. 42:
In page 59, line 8, to delete "subsection (1)” and substitute “subsection (2)”.
Amendment agreed to.
Acting Chairman
Recommittal is necessary in respect of amendments Nos. 43 to 45, inclusive, as they do not arise from Committee Stage proceedings.
Bill recommitted in respect of amendments No. 43 to 45, inclusive.
Government amendment No. 43:
In page 64, line 1, to delete "subsection (2) and”.
This amendment is consequential to a Committee Stage amendment which deleted subsection (2) in section 105.
Amendment agreed to.
Acting Chairman
Amendment No. 44 has already been discussed with amendment No. 5.
Government amendment No. 44:
In page 67, lines 29 and 30, to delete "the prescribed manner" and substitute "such manner as may be prescribed by rules of court".
Amendment agreed to.
Government amendment No. 45:
In page 68, to delete lines 12 to 16 and substitute the following:
"114.—(1) Registration of a judgment mortgage undersection 113 entitles the judgment mortgagee to apply to the court for an order for sale of the judgment debtor’s estate or interest in the land.
(2) On such an application the court may make such an order for sale or such other order for enforcement of the judgment mortgage as the court thinks appropriate.".
Amendment agreed to.
Bill reported with amendments.
Government amendment No. 46:
In page 69, line 38, to delete "the prescribed manner" and substitute "such manner as may be prescribed by rules of court".
Amendment agreed to.
Acting Chairman
Amendments Nos. 47 and 48 are related to amendment No. 45 and may be discussed together agreement. However, as Government amendments Nos. 47 and 48 which are grouped with this amendment do not arise from Committee Stage, the Bill needs to be recommitted in respect of this group of amendments.
Bill recommitted in respect of amendments Nos. 47 and 48.
Government amendment No. 47:
In page 81, between lines 45 and 46, to insert the following:
"
|
No. 3 of 1997 |
Circuit Court (Registration of Judgements) Act 1937 |
Section 4 |
"
The amendment to section 114 is intended to clarify the meaning of subsection (1) by separating the application procedure provided for in the new subsection (1) from the making of the court order provided for in the new subsection (2). The amendment to Schedule 2 repeals sections in existing courts legislation which deal with the registration of judgment mortgages but which will be redundant following the enactment of this legislation.
Amendment agreed to.
Government amendment No. 48:
In page 82, between lines 7 and 8, to insert the following:
"
|
No. 11 of 1981 |
Courts Acts 1981 |
Section 24 |
"
Amendment agreed to.
Bill reported with amendments.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Minister for bringing forward this legislation. As was said during the debate on the Prisons Bill, he has a propensity for introducing Bills in this House and it is much appreciated by Members. I trust he is satisfied that the debate here is of benefit to him in the drafting of Bills.
I thank the Minister and his Department. I am a solicitor and most of my work and experience was in land law. It is good to modernise our law. I read intensely the book by Professor Wylie when studying for the Law Society of Ireland exams and it was a great book. Thankfully, I never used fee tails or leases for lives renewable forever in my career as a solicitor. It is good that many of these items have been abolished because they are no longer relevant. The legislation is welcome and I appreciate all the work the Minister and his staff have put into it. I also thank the Minister and his staff for taking on board some of my amendments and for considering some issues further.
I join colleagues in complimenting the Minister and the officials on bringing this Bill before us. It comprehensively reforms and modernises many areas which need modernisation. I thank the Minister for accepting some of the amendments tabled. The Revenue sheriffs were probably the only ones who were not consulted by the Law Reform Commission on this matter. They believe the power they have is a very useful tool and a stand-alone provision. I understand a meeting has been arranged for a week or two on this issue and I am sure their concerns will be dealt with in the Dáil. I thank the Minister for suggesting on Committee Stage that such a meeting take place. It did not happen before Report Stage but we are glad it will take place. The intention is to improve this area comprehensively and I hope this Bill will do that. The amendments which have been accepted will strengthen the Bill.
I thank Senators for their kind remarks. I express my thanks to Mr. Carroll and Ms O'Keeffe, who have been with this programme at every stage, including collaboration with the Law Reform Commission and in this House, for all the work they have done. It is a significant achievement for this House to have adopted and passed major legislation. I hope that when it goes to the other House, it will be passed quickly. It is not a matter of party political difference as the debate here has clearly shown. On the other hand, as the life of this Dáil is short, it would a pity if it were somehow left on the shelf and not progressed. Subject to what the Members of the other House think, relatively short Second, Committee and Report Stages should see the Bill become law verysoon.
As Senator Tuffy pointed out, Professor Wylie of the Law Reform Commission has made some of his own work redundant but their value will remain. There will be many new editions of conveyancing and land law books to be published. The task of students, practitioners, judges and lay people will be made much simpler when this Bill is enacted. Some of the antiquated aspects of conveyancing law which were real mysteries to people will have been swept away. I express the hope that Professor Wylie will be in a position to cash in on the revolution he has helped bring about by producing new books, if not in time for the Christmas market this year, then for the Christmas market next year.
As we are talking about Christmas, the Revenue sheriffs were too busy to meet us before December. That is why we were not in a position to have a meeting before Report Stage. I hope they will be in a position to be consulted before the Dáil disposes of this legislation. It is good to know they are busy.
Question put and agreed to.
Acting Chairman
When is it proposed to sit again?
At 2.30 p.m. on Tuesday, 28 November 2006.