I welcome the Minister of State, Deputy Noel Ahern, and his officials. Wewill resume consideration of the Residential Tenancies Bill 2003. Is it agreed that we meet until1 p.m., take an hour for lunch and resume at2 p.m.?
Residential Tenancies Bill 2003: Committee Stage (Resumed).
How long is it intended to continue this afternoon?
We can decide that at 2 p.m.
It would be better to know now so that we can make arrangements. We should conclude at 3 p.m. or 3.30 p.m. at the latest.
We have to deal with another Bill next week.
We could still deal with this Bill next week.
Is it agreed that we take a break from 1 p.m. to 1.30 p.m. and conclude at 3.30 p.m.? Agreed. The committee adjourned yesterday following the agreement of section 28. We will therefore continue with section 29.
Sections 29 to 31, inclusive, agreed to.
SECTION 32.
Minister of State at the Department of the Environment, Heritage and Local Government (Mr. N. Ahern)
I move amendment No. 87:
In page 28, subsection (2), line 19, to delete "out" and substitute "in respect".
This is a minor, technical amendment substituting the words "in respect" for "out" in subsection (2). The recommended wording is simply more correct for referring to the dwelling rather than the tenancy. It is a technical point.
Amendment agreed to.
Section 32, as amended, agreed to.
Section 33 agreed to.
SECTION 34.
Amendment No. 88 is in the name of Deputy Gilmore. Amendments Nos. 89 to 91, inclusive, 94 and 95 are related and may be discussed together, by agreement.
I move amendment No. 88:
In page 28, paragraph (b), between lines 36 and 37, to insert the following:
"(i) the dwelling is not being let for a further period of at least one year,".
Deputy Gilmore's first proposed amendment to the section is strange. I am not sure if I understand it correctly; it is a little confusing. On the face of it, it would have the effect of allowing a landlord to terminate a tenancy even if the specific grounds for termination provided for in the section did not apply. It seems inconsistent with the amendments proposed by the Deputy regarding other sections. Perhaps we were reading it wrongly.
I am substituting for DeputyGilmore this morning. He was held up somewhere else. I suggest that, if the Minister is unclear as to what is meant — I am not certain whether one can do this procedurally — perhaps it might be possible to allow the amendment to be taken at a later stage. Deputy Gilmore will not be very much longer.
Deputy Lynch can withdraw the amendment.
I do not think I should do that.
That does not leave us with many options.
The Minister is prepared to deal with the amendment later. Deputy Gilmore will not be very much longer. It will not be tomorrow or next week. He will be here within a very short period.
I oppose the amendment as I read it. I would be surprised if the way that I am reading it is how Deputy Gilmore intended it. However, I presume that it can be re-entered on Report Stage, even if the technicalities of the system do not allow us to put it back. We will probably have another opportunity on Report Stage. I am in the Chairman's hands.
The amendments must be taken in the order in which they are presented. If Deputy Lynch wishes to withdraw the amendment, it can be resubmitted on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 89:
In page 29, line 9, to delete "automatic" and substitute "excepted".
This is a technical amendment to replace the term "automatic" with "excepted". It is simply a change of wording.
Amendment agreed to.
I move amendment No. 90:
In page 29, to delete lines 18 to 22.
This concerns the proposed amendments to the grounds for termination specified in the section, the provision in question enabling a landlord to terminate a tenancy on the grounds that the dwelling is no longer suitable to the needs of the tenant and any other occupants having regard to the number of bed spaces and the size and composition of the occupying household. That was one of the recommendations of the commission. In the absence of a provision, there would be scope for unsuitable use of dwellings that would not be in the interests of either the tenant or the landlord. The basic point is that, after a change of tenancy or the over-occupation of a tenancy, the dwelling may no longer be suited to the accommodation needs of the occupying household by reference to the number of bed spaces.
The amendment concerns the grounds for termination that the dwelling is no longer suitable regarding bed spaces, but one of the grounds for termination is if a situation changes and a tenant brings in other people so that the family situation reaches a stage where conditions are overcrowded. The system could not condone overcrowding. The house becoming severely overcrowded is one of the reasons for allowing the landlord to seek the end of the tenancy. No one will say that a house suitable for three adults cannot also house one child. However, if the house were to become severely overcrowded, we would have to act. We cannot condone overcrowding anyway but this is a principle of our general housing policy and must remain as one of the five or six grounds for allowing a landlord to seek the end of a tenancy.
The worry, which we have all come across, is that an additional child would be used as an excuse. Such a child might not simply appear from a relative's house; it might be an addition to the family. Landlords might use that as an excuse to evict someone. Very few landlords now want children on their property anyway. For instance, if a couple had a child subsequent to entering a tenancy, that would not constitute severe overcrowding. The Bill does not indicate exactly what the Minister is talking about and this Bill must be very precise and protect people. This section does not do that. It is probably a provision that will be used by unscrupulous landlords——
I am sorry to interrupt the Deputy, but there is a vote in the Chamber and we must suspend our deliberations and return immediately afterwards.
Sitting suspended at 10.50 a.m. and resumed at 11.05 a.m.
We will resume. We were discussing amendment No. 90 in the name of Deputy Gilmore.
I thank Deputy Lynch for standing in for me earlier.
Amendment No. 90 proposes to delete lines 18 to 22 on page 29 relating to grounds for termination. One of the grounds for the termination of a Part 4 tenancy is where the dwelling is no longer suitable to the accommodation needs of the tenant and of any persons residing with him or her having regard to the number of bed spaces contained in the dwelling and the size and composition of the occupying household. The danger I see is that if, for example, a household comprises a couple and one child and another child or twins are subsequently born or there is an addition to the household, that could be a ground for termination of the tenancy by the landlord. That would put an unbearable burden on the tenant.
I am not sure why this has been included as a ground for termination because it is probably fair to assume that if a household size grows to the point where the size of the accommodation is no longer suitable for it, it is likely that the household will seek larger accommodation. A landlord could come along and terminate a tenancy following, for example, the birth of a child, somebody getting married or somebody deciding to set up home with someone who has a child, all of which would be constitute a ground for the termination of the Part 4 tenancy under this arrangement. For those reasons, that ground for termination should be removed from the Bill.
This was one of the commission's recommendations. In the absence of such a provision, there would be scope for unsuitable use of dwellings which would not be in the interests of the tenant or the landlord. I cannot imagine this being used in the case of a family having a child. The beauty of the legislation is that even if a landlord tries it on, it will go to the tenancies board which will adopt a common sense approach. Overcrowding would have to be substantial and not just constitute one extra person. There have, however, been cases — I am choosing my words carefully — involving certain sectors of society or immigrants where rented accommodation has been let to one, two, three or four people but where double or treble that number have been living in the house. The termination ground is predicated on there being a change in the composition of the qualifying household subsequent to the commencement of the tenancy which renders the dwelling in question unsuited to that household's accommodation needs. It is a legitimate ground for terminating a tenancy as overcrowding is contrary to housing policy. We should not be seen to condone severe overcrowding, which would be one of the standard reasons for ending a tenancy.
The ground also specifies "bed spaces", as opposed to bedrooms. The number of bed spaces in a dwelling is an easily established and incontrovertible fact. I cannot imagine the board doing anything other than adopting a common sense approach to this matter. The issue will go to the board in any case, even if a landlord tries to use it as an excuse. This was recommended by the commission to address cases where it is discovered, for example, that a dozen people are living, perhaps in shifts, in a house which was let to four adults. Such circumstances would constitute a reason for allowing a landlord to seek termination of the tenancy. Where cases of this nature arise, the board will operate as adjudicator. The provision is not, therefore, a blank cheque for landlords.
The board will have to comply with the provisions of the legislation. Regardless of whether the board wants to apply common sense, it will still have to determine issues in accordance with the Bill's provisions. The kind of circumstances the Minister of State described relating to a household which rents a house or apartment and decides to accommodate two or three times the specified number are addressed elsewhere in the legislation. The Bill already provides that a tenant must obtain permission before allowing others to reside in the dwelling. If that provision is not sufficiently tight, there is no reason a further provision cannot be included to prevent such circumstances arising.
In any event, it is uncommon for a rented dwelling to be used by one group doing a night shift and another doing the day shift. If the intention is to address such circumstances, I would not have a problem with inserting a provision to that end. The problem, however, is that the provision, as currently worded, would allow a landlord to evict a family when another child is born.
The provision centres on the number of bed spaces. What is the Minister of State's understanding of that term? If, for example, a room would normally accommodate two single beds and somebody puts bunk beds into it, how many bed spaces would the board be supposed to count?
The Deputy is bringing back memories for many of us.
The wording specifies "bed spaces" as opposed to "bedrooms". The reasoning for this was that a child in a carrycot or basket does not need a bed space.
Until what age is that the case? This is a pertinent matter which the board will have to determine. We must know what the legislation means in this regard. At what age does a child need a bed space?
I will not pretend to be an expert in that area. I do not know if that is specified in law. Common sense indicates that two years could be an appropriate age.
Given that we are writing law, we want to know what it means.
Yes, but I do not know if we can be more specific. The board is our security and only it can interpret the provision. I accept, however, that this issue is open to debate. I do not know if we can firm up the provision by inserting "bed spaces" rather than bedrooms, but this is not meant to target families who have another child. It is right and proper than we do not condone overcrowding. If the Deputy wishes, we will re-examine the matter but I am not sure if we can resolve it by tightening up the provision.
What is the position regarding bunk beds?
That is an interesting question. One usually associates bunk beds with children rather than adults. Do adults sleep in bunk beds? It is possible in the kinds of cases we are discussing.
It is the case in Deputy Power's constituency.
With regard to the Deputy's other point, a tenant is not obliged to obtain the landlord's permission but must notify him or her. Tenants must obtain permission only if they are sub-letting and must notify in other circumstances, which may not always be the case in the circumstances I have described. Abuse is possible and is a concern. The question could depend on who put in the bunk beds. If it was the landlord, the matter probably reverts to the contract and what was intended therein. If a landlord puts in bunk beds, he or she is defining how many beds are in the room. If, on the other hand, a landlord puts in beds and a tenant replaces them with bed spaces, the tenant is changing the contract. Much depends on what a landlord offers. If one offers a house with a couple of bunk beds in it, one is laying this down virtually as a condition of contract. We will re-examine the issue. I accept there is a theoretical risk of a landlord trying it on, as it were, in this regard. Equally, however, we need to include this protection.
If the Minister of State agrees to re-examine the matter, I will withdraw the amendment and resubmit it on Report Stage.
I will re-examine it but I am not making any commitments.
Amendment, by leave, withdrawn.
Deputy Cuffe, who tabled amendments Nos. 91 and 92, is not present.
Amendments Nos. 91 and 92 not moved.
Section 34, as amended, agreed to.
NEW SECTION.
I move amendment No. 93:
In page 29, before section 35, to insert the following new section:
"35.—The purported termination of a tenancy by a landlord under section 34 shall be deemed to be null and void ab initio where evidence is adduced to show that the termination arises from a complaint by the tenant, or other action by the tenant made to secure his or her rights as a tenant.”.
The purpose of the amendment is to ensure that where a landlord tries to end a tenancy for vexatious reasons, for example, as a result of the tenant making a complaint, the termination will be deemed invalid. The amendment is vital to ensure that tenants who make legitimate complaints will not suffer as a consequence of seeking their rights. I understand this approach has worked in other countries and there is no reason it should not be included in the legislation.
Did we discuss the amendment earlier?
It was discussed with amendment No. 43.
We have introduced a clause to prevent people being discriminated against. The amendment proposes to insert a new section to deem that a termination is void if it arises from action by a tenant to secure rights. This is not necessary as section 14 provides adequate safeguards against penalisation of tenants. We have tabled an amendment to the section to extend the scope of any anti-penalisation measure to cover complaints or applications to public authorities generally. While I understand the Deputy's concern, the matter is already provided for elsewhere in the Bill and the amendment is not, therefore, necessary.
Most of us will have experience of being tenants and some of us may have experience of being landlords. Since legislation was last enacted in this area, the rented property sector has fundamentally changed. We are no longer dealing solely with houses, but also apartments, condominiums and every type of rented accommodation. In addition, landlords increasingly live on or adjacent to the dwelling. For this reason, tenants are sometimes more closely scrutinised by landlords than in the past and this may include scrutiny of certain matters unconnected to the tenancy. Tension between landlords and tenants is more likely to arise in such circumstances. This amendment would protect the tenant against any action by a landlord resulting from the tenant making a complaint to the landlord. We are merely trying to ensure that the making of a complaint could not be used as a reason to terminate a tenancy.
While I agree with the Deputy in general, section 14 already provides safeguards against penalisation. The amendment we have introduced improves the current wording. The effect of the section is to prohibit landlords from taking any action which penalises tenants for referring a dispute to the board or making an application or complaint to a local authority, the Garda or any other body. If a tenant feels he or she is being penalised, he or she could take the matter to the board, which could award damages against the landlord in question.
The board will be busy because this type of dispute will arise in the normal course of events. Is it not preferable to eliminate this problem by providing that all matters be addressed by the tenant, the landlord and the board? Given that the board will be bound by the legislation, as enacted, certain safeguards will have to be written into the Bill.
I agree with DeputyMcCormack but we have already done this in a different section. The provision sought by the Deputy is in the Bill, albeit not in the section he recommends. The board could well be very busy in its early stages and people may well test the water. The necessary provisions sought are in the legislation and if the board makes decisions and adjudications that tenants or landlords are transgressing, it will make clear to the public what is happening in the rented sector.
I agree with the Deputy's point that tenants should not be penalised for approaching the Garda, a local authority or another body. As we have moved to include this protection in the Bill under section 14, it is not necessary to include it in this section.
I accept the Minister of State's assurance given that his comments on the matter will be on record and available to the board.
Amendment, by leave, withdrawn.
SECTION 35.
I move amendment No. 94:
In page 29, subsection (2), line 46, to delete "Table—" and substitute "Table".
Amendment agreed to.
I move amendment No. 95:
In page 30, lines 12 and 13, to delete all words from and including "be;" in line 12 down to and including "automatic" in line 13 and substitute the following:
"be.
(3) In paragraph 1 of the Table the reference to a failure that provides an excepted”.
As in the case of amendment No. 94, this is a technical amendment.
Does it supersede amendment No. 89?
Amendments Nos. 89, 94 and 95 are technical amendments, which were discussed together. Amendment No. 89 substitutes the word "automatic" with "excepted" before the "basis of termination" in the context of bases for termination mentioned in ground one of the table. It necessitates the consequential amendment No. 95, which spells out what we have done.
Amendment agreed to.
Section 35, as amended, agreed to.
Section 36 agreed to.
SECTION 37.
Amendments Nos. 97 and 98 are related to amendment No. 96 and all three may be discussed together by agreement.
I move amendment No. 96:
In page 31, lines 1 to 7, to delete subsection (5).
These amendments delete subsection (5) from section 37 and insert a new section immediately after section 37. The new section specifies in more detail than the current section the consequences of an assignment of a tenancy. An assignment which requires a landlord’s consent means the end of the original tenant’s involvement in the tenancy, in contrast to a sub-letting. If the assignment is to an existing sub-tenant, the sub-tenant becomes the tenant and the balance of the original tenant’s Part 4 protection applies. It is a somewhat technical point.
It is not particularly technical. The question addressed in this section is who has the right to continue the tenancy. Will the Minister of State spell out what the amendments will mean in practice? I understand that it changes the entitlement to the Part 4 tenancy following its assignment and that it draws a distinction between the assignment of the tenancy to an existing sub-tenant and to another person. While there is no doubt about the Part 4 tenancy of the tenant, what happens to the tenancy when it is assigned? How will this play out?
The basic point is that it makes a distinction between the two cases. Effectively, it will mean that if the Part 4 tenancy is assigned to a sub-tenant, the original arrangement will continue to apply.
Will it continue for the life of the Part 4?
Yes, and if it is assigned to a stranger, one must begin again at the beginning.
What is a sub-tenant?
The Bill includes a definition of the term, "sub-tenant". A sub-tenant is a person for whom the landlord has given permission to reside in the dwelling.
Would that include a member of the tenant's family?
A family member would not normally be a sub-tenant.
Let us take the example of a lone parent with a 19 year old daughter. If the lone parent rents a dwelling, I take it that she is the tenant. Will her daughter succeed to the tenancy in such circumstances?
It depends on what the earlier sections state and on whether she wants to exercise that right. If she applies to become a sub-tenant and becomes a sub-tenant, she will be able to exercise that right.
I want to understand what we are doing here. I would like to ask about the assignment of the tenancy. Do I understand correctly that a person has to be named in the tenancy agreement as a sub-tenant in order to have such a status?
Yes.
Let us take the example of a letting agreement among a group of four people who are renting accommodation together. If one of the people in question is named as the "tenant" and the other three are named as "sub-tenants", would they be "sub-tenants" in the terms we understand in this Bill? If the tenant decides to leave Galway and to go to live in Waterford, for example, can he or she assign the tenancy to the sub-tenants, who have continuing Part 4 entitlements?
I am becoming confused. The reference to "assigning" is relevant when the original tenant is moving away. If one has a tenant and a sub-tenant, accommodation can be assigned to the sub-tenant, who becomes the new tenant, when the original tenant moves off the scene.
That is okay.
It does not really address the situation raised by the Deputy.
I understand why there is a formal sub-tenancy arrangement. Let us take the example of a man, who is the tenant, who is living with a woman and their two children. If the man moves away, what happens to the tenancy and to his partner, who is not named as a sub-tenant? Does the partner succeed to the tenancy? Can the tenancy be assigned to the partner?
The Deputy has spoken of circumstances in which a tenant leaves his partner, with whom he was in a relationship.
Let us assume that a man and a woman are renting an apartment together. The man is the tenant, but his partner is not formally named as the sub-tenant. What happens if he moves away? Let us assume he wants to assign the tenancy to the partner. As I understand it, the Minister's amendment will mean that the partner will not be entitled to the protection of Part 4, because she will not be formally considered as a sub-tenant.
The partner is not a sub-tenant in that instance, but she will be referred to in legal terms as a "licensee". In such a case, the licensee can seek to stay in the accommodation.
The landlord will have to agree to it.
Yes, but he should not unreasonably——
Why can we not provide for protection in a bona fide family situation? It seems strange to me. I have spoken of the example of four people working together in Galway who rent a house in Renmore and pay the rent between them. If one of them is named as a tenant, the other three are perfectly covered if the tenant moves, as long as he has assigned them as sub-tenants. In such circumstances, the original tenant can assign the tenancy to the other three, who are perfectly covered and can continue with a Part 4 tenancy. I have spoken of circumstances in which a house is rented by a family, in effect. In such circumstances, the tenant cannot assign the tenancy to his partner unless she was originally assigned as a sub-tenant, which may or may not be the case.
The partner does not have rights in such circumstances but, as a licensee, she could seek the permission of the landlord to continue to live at the address in question.
He could throw her out.
He cannot throw her out. He could be referred to the board.
She is not a tenant. She does not have the right to go to the board.
She is not a tenant — she is a licensee.
Can a licensee go to the board?
Yes. The licensee can make a formal application to become a tenant. If it is considered that the application has been unreasonably refused, a decision will be taken depending on the circumstances. Perhaps the landlord will have other grounds for not wanting the tenancy to continue. A woman in that position would be changing her status from a licensee to a tenant. If the application to become a tenant is unreasonably refused, she will have the right to go to the board.
What is the definition of a "sub-tenant"?
I think I dealt with that matter earlier, but I will find the formal definition again. If a tenant subcontracts or sublets accommodation to another tenant, the tenant becomes the head tenant, so to speak, and the other person becomes the tenant. I will put it in more legal language.
Can a person become a sub-tenant without the approval of the landlord?
A person cannot become a sub-tenant without the approval of the landlord and the head tenant.
It has been suggested that possible sub-tenants should be named at the same time as the tenant is named. Does this approach represent a solution to the problem? The approach is similar to the system for naming possible replacements for a Member of the European Parliament.
I do not think one could take such an approach. I understand the point being made by Deputy McCormack. I do not doubt that he is coming from a Galway or a north-west perspective.
No, I never even thought of that.
The difference is that the term of an MEP is five years, but tenants have rights after four years.
I do not think tenants could be expected to know their future plans when they are taking out a tenancy. They might not know the direction in which they intend to go.
Poor old Seán Ó Neachtain did not get a Part 4 tenancy.
He did.
I do not think he did.
Is the amendment agreed?
No. I do not know what it means. I think I know what it means, but I have to say that the more I hear about it the less comfortable I am with it.
Perhaps we should not say any more about it.
Can I refer to a document to clarify the matter for Deputy Gilmore? It says that an assignment occurs when a tenant transfers the tenancy to another person, who then becomes the tenant of the original landlord. The original tenant then has nothing further to do with the tenancy. A sub-tenancy is created when a tenant rents out or sublets his or her rented dwelling to another party. The tenant who then takes up occupation is the sub-tenant and the former tenant is the head tenant. The head tenant remains the tenant of the original landlord while becoming landlord to the sub-tenant——
That is straightforward.
——but is no longer an occupant of the dwelling. The amendments propose to delete subsection (5) and insert a new section which specifies in more detail the consequences of an assignment of a tenancy. An assignment which requires a landlord's consent means the end of the original tenant's involvement in the tenancy, in contrast to a sublet. If the assignment is to an existing sub-tenant, the sub-tenant becomes the tenant and the balance of the original tenant's Part 4 protection applies. If the assignment is to someone else, any existing Part 4 protection ceases and the new tenant will not have the protection of a Part 4 tenancy until he or she starts the probation period again.
What about a married couple? Is the spouse automatically the joint tenant?
She is entitled to be, if she wishes.
What is her status, if the husband signs the lease and his is the name on the tenancy agreement? If he leaves, does she retain the rights to the tenancy?
She is a licensee, unless her name is on the tenancy agreement. She could seek to be a joint tenant.
If the marriage took place after the lease was agreed, would the same apply?
She may seek to be a joint tenant.
Is the Minister of State sure about this? I would have thought that under the Constitution there would be an automatic right. What if we had legislation that allowed a landlord to challenge the continuity of rights in the case of desertion, for example?
When we discuss the amendment of section 49 this issue will arise again. It is proposed to substantially amend section 49 by amendments Nos. 104, 105, 106 and 108. The section as amended will provide that once a Part 4 tenancy has come into being, each multiple tenant in occupation before then and any person accepted by the landlord as tenant after that benefits from the protection of that tenancy once his or her occupation has lasted a continuous period of six months.
Does that cover a spouse?
It will further provide that any lawful licensee of a tenant or multiple tenants may, during the existence of a Part 4 tenancy, request to be allowed to become a tenant. The landlord may not unreasonably refuse such a request. The question is whether the wife has automatic tenancy. Must there be a request to the landlord?
We are in tricky territory here. We need to bring some clarity to the issue. It needs to be absolutely clear that the married partner of a tenant automatically has the same rights as the tenant in circumstances in which they have not been named jointly as tenants. It is unwise for the legislation to be ambiguous about this and I suspect it could be challenged on a number of grounds.
The situation in which a couple is living together as a family is probably as common as marriage, if not more so, especially in the private rented sector. Their situation needs to be made clear. Often there are dependent children involved. There is ambiguity there. For one reason or another, if one partner is the original tenant and leaves, the remaining partner and, in all probability, his or her children are in an unclear position. This must be considered differently from the scenarios dealt with in the Bill, in which a tenant effectively becomes the landlord to a sub-tenant. This will be unusual. It is more common that one person signs the tenancy agreement, with two or three people sharing the accommodation, and the people sharing change over time. That is in a different category, however, from a family-type arrangement, whether of the married or non-married variety, whose status needs to be clarified. I can envisage situations in which the position of the partner who has care of the children, who in all probability will be the person still residing in the premises after the other partner leaves, is unclear.
In the case mentioned by Deputy Gilmore, does the legislation apply in the same manner to tenants of local authority houses? In the case of the death or disappearance of one partner, does the other partner become the tenant, so that he or she cannot be put out of the house? Similarly, if they have a family, or when their parents die, they cannot be put out. How does this legislation affect tenants of local authority houses, vis-à-vis—
It does not apply to social housing.
Yes, but could the same protection not apply? Under social housing regulations, the spouse or partner is protected in the event of the person named in the tenancy leaving the house, the tenancy cannot be transferred to that partner and the partner cannot be removed from the house. Could the same not apply in this Bill for private rented property?
Section 49 is the relevant section.
I am aware of the situation to which the Deputy refers. Under the Family Law Protection Act spouses have rights, irrespective of whether their name is on the ownership. If a person is buying a house now, the solicitor would normally advise that it be put into joint names. This may not have happened 30 years ago as houses were inclined to be in the name of the breadwinner. Equally, if a person is renting accommodation in the future, any property that has been rented would be registered with the board, and the board would act in the same advisory capacity as one's solicitor. The board would advise one that the tenancy should be taken out in both names if both people are there at that stage. Where one person takes out a tenancy, we do not consider that the rights provided for under the Family Home Protection Act extend to tenancies. We might be mistaken in that regard as it is a matter for the Department of Justice, Equality and Law Reform.
In the case raised, regardless of whether the individuals are married or otherwise, the other person has the right to be a tenant; if they are there at the beginning or come in later, they should get their name on the tenancy. If not, and if somebody dies or moves out, they still have to go through the process of becoming the tenant and have a right to apply to become one. The landlord should not unreasonably refuse, but should he or she do so, the case would be referred to the board for a decision. We consider that to be sufficiently specific. There has to be some process by which one claims one's rights, especially where one is not a joint tenant from the outset.
This comes down to the rights of the family, which are guaranteed by the Constitution. The family is not in the same position as three or four people who are not related to each other, working together or studying together and renting a flat through an estate agent. I understand the idea of applying to the landlord for the licence arrangement, as it has been described, and how it works in those circumstances, but that should not be the criterion that applies to a family. Has the Minister of State received any advice as to whether this provision would be constitutional, having regard to the constitutional protection of the family? It will leave families vulnerable. There is an obligation on the Oireachtas to vindicate the rights of the family and that is not being done here. The tenancy cannot be assigned to the remainder of the family unless they have already been formally declared to be sub-tenants. The family is being put in a position where the remaining spouse or children would have to go cap in hand to the landlord to be granted the tenancy. Their only protection is the provision that the landlord may not unreasonably withhold it. If there is a tenancy involving a family situation, either a family at the beginning of the tenancy or one that developed during the course of the tenancy, the tenancy rights should belong to the family. If the Minister of State attempts to legislate to draw a distinction between the member of the family who signed the tenancy agreement and who is legally name as the tenant, and the remainder of the family, that is unfair to families and it fails to vindicate the rights of the family. This issue is about the rights of the family in the context of tenancies. The original provisions in section 37 and the proposed amendments are shaky in so far as they deal with the rights of the family. This area needs to be strengthened and made absolutely clear.
I find it hard to debate or argue against the importance of protecting the family in this situation. I would normally be seen to be supportive of that position. These matters have been considered by the Office of the Attorney General. We can check the point again, but our understanding is that the protection under the Family Home Protection Act does not automatically extend to tenancies. We are concerned with the right to succeed to the tenancy. The section provides for a right to apply which the landlord cannot unreasonably refuse. The Deputy is asking whether there is an automatic right to a tenancy in respect of a family, whether it was there at the time the tenancy was taken out or whether it evolved after that. He is concerned in this regard with a formal family, or an informal one as set out under the Family Home Protection Act. We can have the matter legally clarified again.
I welcome that, but I do not want to prolong the debate. The Minister of State is the last person who would want a legislative provision that does not vindicate the rights of the family. This should be looked at before Report Stage. It should be made clear by way of a new section or a couple of paragraphs that tenancies are protected in a family context.
I am thinking on the hoof when I say that the Family Home Protection Act does not extend to tenancies. This legislation creates new rights; we are not taking away any existing rights. It may be that a family in such circumstances has rights. I do not think it is provided under other legislation, but if it is we are not removing it here. The Bill is neutral on that. We are laying down a procedure for the person. The person does not have to go cap in hand. The phrase "cannot reasonably refuse" is clear but we will clarify whether this aspect can be strengthened or if we can give greater protection to a family, regardless of whether the couple is married.
Amendment agreed to.
Section 37, as amended, agreed to.
NEW SECTION.
I move amendment No. 97:
In page 31, before section 38, to insert the following new section:
"38.—(1) If a Part 4 tenancy is assigned by the tenant with the consent of the landlord then if the assignment is—
(a) to a person, other than a sub-tenant of the dwelling concerned, the assignment shall operate to convert the Part 4 tenancy of the dwelling into a periodic tenancy of the dwelling and the protection provided by section 28 for the assignor shall accordingly cease (but without prejudice to that section’s fresh application in relation to the assignee should the circumstances mentioned in that section occur),
(b) to a sub-tenant of the dwelling concerned, the protection provided by section 28 for the assignor shall cease (but without prejudice to the Part 4 tenancy’s continued subsistence as provided for in subsection (2)).
(2) If the assignment is to a sub-tenant of the dwelling concerned, the Part 4 tenancy shall continue in being (but in favour of that person and not the assignor) for the period that it would have continued in being had the assignment not been made and subject to the provisions of this Chapter; accordingly—
(a) the assignee shall become the tenant of the landlord under the Part 4 tenancy,
(b) the terms of the Part 4 tenancy shall continue to be those under which the assignor held the tenancy immediately before the assignment unless the assignee and the landlord agree to a variation of them, and
(c) the assignee’s sub-tenancy of the dwelling shall merge with the Part 4 tenancy.
(3) Subsection (2)(c) does not affect the liabilities (if any) of the assignee to the assignor (or of the assignor to the assignee) that have arisen by virtue of the sub-tenancy concerned.
(4) The assignment of a Part 4 tenancy with respect to only part of the dwelling, the subject of the tenancy, is prohibited.
(5) Any such assignment purported to be made is void.".
Amendment agreed to.
SECTION 38.
I move amendment No. 98:
In page 31, subsection (1), line 10, after "tenant" to insert the following:
"save that where another person is residing in the dwelling on the date of death of the tenant, that person shall enjoy the remainder of the term of the Part 4 tenancy”.
The parliamentary counsel has advised me that two further minor technical amendments to sections 44 and 46 are being drafted for Report Stage to remove any potential ambiguity. I realise we have not reached those sections yet but I wanted to give notice in that regard.
Does the Minister want to reply to amendment No. 98?
Have we not dealt with that?
It has been discussed already.
Effectively this amendment deals with the issue of a death. The Bill states that a Part 4 tenancy shall terminate on the death of a tenant. I propose that save where another person is residing in the dwelling on the date of the death of the tenant, that person shall enjoy the remainder of the term of the Part 4 tenancy.
Is this not much the same as the previous situation?
It is, except it brings home the point more forcibly.
Under succession law a deceased tenant's successors will inherit the rights and obligations of any lease governing the tenancy, irrespective of whether they were residing in the dwelling. With regard to other persons who may have been residing in the dwelling, the rights of multiple tenants to benefit from a Part 4 tenancy are provided for in chapter 6 of Part 4. The proposed amendment would cut across these provisions. In particular it would appear to create rights for persons who would not otherwise have them, which might mean persons unrelated to the deceased tenant who happen to be staying in the dwelling at that time. Where a dwelling is being let to more than one occupant, some or all of those occupants should enter into the tenancy as joint tenants so that their position is unaffected by the death of any one member of the household. It is much the same as the previous situation. If they are joint tenants, they have rights. If they were not joint tenants, they have no rights. They will make application to the landlord to carry on with the tenancy.
If a man dies, does his widow——
Under succession law a deceased tenant's successors will inherit the rights and obligations of any lease governing the tenancy for the duration of that lease.
Why is this necessary then? The Bill states that the Part 4 tenancy shall terminate on the death of the tenant. How is that reconciled with the Succession Act? Which supersedes in a dispute? Will section 38 of the Residential Tenancies Act, as it will be, take precedence over the provisions in the Succession Act? Which Act takes precedence?
The Bill states that the Part 4 tenancy ends with the death of the tenant but if there is a lease, the rights to the lease pass to the successors.
But not the Part 4 tenancy.
Not the Part 4 tenancy.
What does that mean in practice? If we take a straightforward situation, a husband and wife — we will leave children out of it for the sake of simplicity — is it not the case that the widowed spouse inherits in cases where there is no will?
Can the Deputy repeat that question?
The widowed spouse inherits under the Succession Act. If there are three years remaining on the Part 4 tenancy, is the widowed spouse entitled to that three years?
Is she a joint tenant?
No.
Then we are back to the issue we talked about earlier. She then has to go through the process of applying to the landlord for the tenancy and he or she cannot unreasonably refuse. It is back to the family law clarification point.
This provision will have to be tightened. This is a nightmare situation. We will end up with people who have been recently widowed getting notices from landlords telling them they no longer have the Part 4 tenancy. This needs to be made absolutely clear. There is no good reason the Part 4 tenancy should not be protected in the case of the death of a spouse. I do not want to delay the committee but this will be an area in which all kinds of disputes will arise and we will have people going to the board with the problem. We will all hear about it when people come into our advice centres and clinics or contact us as public representatives with various scenarios that will arise in these circumstances. As it stands, the law is unclear as to what is intended. I ask the Minister to bring some clarity to this matter before Report Stage.
I think I understand what is meant here. If a tenant dies, it is unreasonable that the person to whom he or she has willed his or her goods and chattels would have a right to the tenancy. However, if that person was living with the tenant and the couple had a family, or perhaps were even married, it is reasonable that such a person should have a right to the tenancy. This section needs to be recast. The Minister of State is fairly clear on what is required to enable him to examine the matter and bring forward an amendment on Report Stage which would bring clarity to the situation. Apart from the fact that it is unfair to families to find themselves in this type of vulnerable situation, if what I propose is not done, the position will not be clear when this provision comes to be disputed.
The Deputy is referring exclusively to a situation where the lease is on a family home. A husband might lease a property for a short period when working away from home.
Yes.
If the husband died, the family would not want to have anything to do with that lease. The Deputy made a good point but other considerations must be taken into account.
Those circumstances can be covered. I am referring to circumstances where the family are living with tenant. For example, a Deputy from outside Dublin may rent an apartment in Dublin for the purposes of the three sitting days of the Dáil, although the position could be different if his or her spouse or child were to succeed to his or her seat, which could happen.
I accept the Deputy's point about a family, regardless of whether a couple is married. The Deputy is not necessarily saying that the wording he proposes can be left that wide open in that the right of tenancy could not pass to anybody who happened to be residing in the dwelling at the time of the death or who had been residing there for a week or a number of weeks. If the language we are using is not strong enough to provide for a couple, regardless of whether its members are married, we can reconsider it. It is a matter of how it can be addressed in legal terms. If the position is not clear, we will get a legal opinion on it. It was considered that the person concerned would have to approach the landlord and go through the process. As tenancies and lettings become more established and professional, hopefully the same practice will apply to tenancies with the encouragement of the board as has happened in the case of home ownership over the years where people have put their houses in two names rather than one.
The language in the section covers the process people should follow; they should apply to the landlord for the tenancy and he or she cannot unreasonably refuse them. If that wording is not strong enough — although if it were interpreted in the way I outlined, it is — and the Deputy is seeking a guarantee in this regard, we can check the position with the Attorney General's office to ascertain if it can be strengthened in respect of established couples, not merely anybody and everybody. People may have resided in the dwelling for a few weeks or months, but the Deputy is referring to people in established relationships, regardless of whether they are married. We will check whether the wording can be tightened.
I will withdraw the amendment pending consideration of the matter prior to Report Stage.
Amendment, by leave, withdrawn.
Section 38 agreed to.
Section 39 agreed to.
SECTION 40.
I move amendment No. 99:
In page 31, subsection (4), lines 28 to 37, to delete all words from and including "being—" in line 28 down to and including "notice" in line 37 and substitute the following:
"being for the period of 4 years from its commencement".
The proposed amendment would have the effect of deleting the provision for four year tenancy cycles. The system of four year tenancy cycles commencing with a six month period during which the landlord has discretion to terminate followed by the three and half year security of tenure period is a fundamental recommendation of the commission. Its abandonment would radically alter the shape of the new regime proposed and, in particular, it would largely undermine the balance in the legislation, a matter we discussed at some length yesterday.
Amendment put and declared lost.
Section 40 agreed to.
SECTION 41.
I move amendment No. 100:
In page 31, lines 38 to 40, to delete subsection (1).
The issue in this amendment is the same as in the previous one. It relates to a fundamental part of the four year tenancy cycle, which I do not want to water down in any way.
Amendment put and declared lost.
Question proposed: "That section 41 stand part of the Bill."
I note the section is being opposed by Deputy Gilmore.
I oppose the section.
Question put and declared carried.
Sections 42 and 43 agreed to.
SECTION 44.
Question proposed: "That section 44 stand part of the Bill."
We will bring forward a minor technical amendment to the section on Report Stage.
Question put and agreed to.
Section 45 agreed to.
SECTION 46.
Question proposed: "That section 46 stand part of the Bill."
I give notice that we will bring forward a minor technical amendment to the section on Report Stage.
Question put and agreed to.
SECTION 47.
Amendment No. 102 is related to amendment No. 101 and they may be discussed together by agreement.
I move amendment No. 101:
In page 33, between lines 29 and 30, to insert the following subsection:
"(2) References in this Chapter to a Part 4 tenancy coming into existence and cognate references shall be construed as references to the circumstances in which the tenancy referred to in section 28 is continued in being by virtue of that section.”.
These are technical amendments. Amendment No. 101 inserts a new subsection.
Amendment agreed to.
I move amendment No. 102:
In page 33, subsection (2), line 30, after "in" to insert "subsequent provisions of".
This is another technical amendment. It clarifies that where subsection (2) refers to references in the Chapter, it is referring to references in subsequent provisions of the Chapter.
Amendment agreed to.
Section 47, as amended, agreed to.
SECTION 48.
I move amendment No. 103:
In page 34, subsection (2), line 1, to delete "being" and substitute "existence".
This amendment seeks to delete "being" and substitute "existence" in subsection (2). This is to ensure consistency with other references throughout the Bill to the coming into existence of a Part 4 tenancy. The amendment seeks to standardise the language.
Amendment agreed to.
Section 48, as amended, agreed to.
SECTION 49.
Amendments Nos. 105 to 107, inclusive, are related to amendment No. 104 and amendment No. 108 is an alternative to amendment No. 107. Amendments Nos. 104 to 108, inclusive, may be discussed together by agreement.
I move amendment No. 104:
In page 34, lines 6 to 19, to delete subsection (1) and substitute the following:
"49.—(1) Subsection (2) applies unless the multiple tenant concerned benefits, by virtue of the preceding Chapters of this Part, from the protection of the Part 4 tenancy on its coming into existence.
(2) A multiple tenant who was in occupation of a dwelling immediately before the coming into existence of a Part 4 tenancy in respect of it shall, on his or her having been in occupation of the dwelling for a continuous period of 6 months (and that tenancy still subsists), benefit from the protection of that tenancy; accordingly the rights, restrictions and obligations under this Part shall, on and from the expiry of that period of 6 months, apply in relation to that multiple tenant as they apply in relation to the multiple tenant whose continuous occupation gave rise to the Part 4 tenancy’s existence.
(3) Any person who the landlord accepts as a tenant of a dwelling on, or subsequent to, a Part 4 tenancy coming into existence in respect of it, shall, on his or her having been in occupation of the dwelling for a continuous period of 6 months (and that tenancy still subsists), benefit from the protection of that tenancy; accordingly, the rights, restrictions and obligations under this Part shall, on and from the expiry of that period of 6 months, apply in relation to that person as they apply in relation to the multiple tenant whose continuous occupation gave rise to the Part 4 tenancy’s existence.”.
The main effect of these amendments is to require each individual beneficiary of the protection of a Part 4 tenancy to have first completed six months of continuous occupation, whether as a licensee or as a tenant. In contrast, the published section 49 allowed persons becoming tenants at a later stage to have the immediate benefit of any existing Part 4 tenancy. The landlords' association had concerns about this and had argued that all individuals should have to complete the probation period before qualifying for the security of tenure measure. The fundamental issue is that everyone should have to complete a probationary period.
Amendment agreed to.
I move amendment No. 105:
In page 34, subsection (2), line 20, to delete "(1)” and substitute “(3)”.
This amendment seeks to substitute the reference to subsection (3) for the reference to subsection (1) in what will now be subsection (4).
Amendment agreed to.
I move amendment No. 106:
In page 34, between lines 26 and 27, to insert the following subsection:
"(3) For the purpose of reckoning the continuous period of occupation referred to in subsections (2) and (3), any period of continuous occupation by the person concerned of the dwelling as a licence (whether that period begins before, on or after the Part 4 tenancy came into existence) may be counted with any continuous period of occupation by that person of the dwelling as a tenant that follows on immediately from it.”.
This is a technical amendment. It inserts what will be a new subsection (5) clarifying that periods of occupation as a licensee immediately preceding occupation as a tenant count towards the six months period. Whether a person is a licensee or a tenant, it is counted as part of the six months probationary period.
Amendment agreed to.
I move amendment No. 107:
In page 34, lines 31 to 45, to delete subsections (4) and (5).
This amendment proposes to delete subsections (4) and (5). The legislation is pro-tenant, which is one of the reasons my party supports it. However, there is a gross imbalance between the rights of landlords and tenants. We want to tilt the balance the other way in section 49(4) and (5). The provisions would require the landlord to confer multiple tenants with the same status as the original tenants. It could become unworkable and lead to a loss of control by the property owner. For that reason, we tabled amendment No. 107.
This is contrary to some of the earlier amendments. I accept the point, but the Government amendments give everyone a six month probationary period, whether that is as a licensee or as a tenant. Amendments with different principles are being tabled. The Government amendments ensure that everyone has a six months probationary period and, as such, everyone is on notice. The landlord will not lose control. He can end the tenancy of any individual.
When the Minister of State says that everyone has a six month probationary period, about whom is he talking? Does he mean the tenant?
Deputy McCormack mentioned a situation where three or four people might share a house. I have accepted the arguments put forward by the landlords that licensees should not be eligible to benefit from the Part 4 protection until they have been in occupation for six months. The amendments I proposed to section 49 addressed that point. There is no justification for excluding them from the right to become a tenant of an existing tenancy. The Deputy's suggestion was that new tenants or licensees could not get rights. Personnel can change over time, but everyone must go through a probationary period. That means the landlord would not lose control because he would have to approve the tenancy for each person.
Did the Minister of State indicate earlier that this crucial part of the Bill must be tightened up and clearly defined in terms of Part 4 tenancy? Did the Minister of State say he would re-examine all aspects of the Part 4 tenancy to ensure it is clearly defined, particularly in terms of Deputy Gilmore's amendments which dealt with families and the amendments we are now discussing?
Deputy Gilmore's point related to couples, whether married or unmarried, and the rights of the spouse or partner. I said we would reconsider this from a family protection point of view. Deputy Gilmore was not looking at the overall issue. Deputy McCormack's point is about the way sharing can change over time. There was a danger in that regard in the original Bill because it could have meant that after four or five years there could be four or five people in the house, none of whom was there at the beginning. The original relationship between the landlord and the tenant would then be broken and the landlord would not know who was there.
Amendment No. 104 ensures that each new tenant must serve a six month probationary period. They might have been in as licensees for some of the time, but they would all have to do six months, albeit as licensees, before getting the benefits of Part 4. As such, they would all be on probation, although some might have been licensees on an informal relationship basis and may have become joint tenants. The landlord would know, however, that each and every one of them had been there for six months. We have just addressed the Deputy's point in my amendment. Before I tabled that amendment, there was a concern that, over a few years, landlords could have lost control.
There is no reference to the six months between lines 31 and 45. Where does the six-month period apply to a person who is lawfully in occupation of a dwelling as the licensee? A tenant may request the landlord of the dwelling to allow him or her to become a tenant of the dwelling on the same terms. There is nothing about six months in that section. Can the Minister of State insert "six months" in that section?
The Deputy's reading of it is correct, based on the original Bill.
Yes.
The Deputy should look at my amendment No. 104, which accepts the point he is making.
All right.
The landlords' association made the same point as the Deputy. Amendment No. 104 gives protection on those grounds. It basically states that as tenancies change over time in house-share positions, everybody would have to go through a six-month period before the matter would be regularised.
Is six months considered to be a reasonable period for that?
That is the probationary period that runs right through the Bill.
The purpose of my amendment is now covered by amendment No. 104.
As regards the house-share situation, am I correct in understanding that if the initial tenant A does the probationary period and then has an entitlement to a Part 4 tenancy, does that Part 4 tenancy remain intact, even though the other residents may change? Is it just that the Part 4 tenancy does not protect the other tenants in a house-share situation, until they have completed their probation?
The Deputy is correct. The original tenant stays and other people who come along will share the same period.
But the tenancy itself is protected?
Yes.
So there is a Part 4 tenancy?
There is a Part 4 tenancy for the first person.
As long as the first person becomes entitled to it, then the Part 4 tenancy exists.
Yes.
Will tenant B, who comes in a year later, have to do a probationary period?
Yes.
Is tenant B entitled to four years, or the remaining life of the tenancy?
No. He or she would have to do a six month probationary period.
But he or she is only entitled to the remaining life of the tenancy?
Yes.
All right. I am not opposed to the idea of individuals being subject to probation; I do not think that is unreasonable. We are back to the question of whether six months is a long time.
The second issue I wish to raise, which I should perhaps have raised when we were discussing section 16, is the requirement that permissions must be granted in writing by the landlord. I can see some difficulty with this because in practice a tenant will ask the landlord for permission; the landlord will say, "That's fine. I agree to that", but may never produce a written agreement. This is something we will have to change. For example, as regards the question of multiple tenants, a landlord has to give consent in writing, as I understand it. Is that not the position? If tenants change in a house-share situation, the landlord has to give consent to the new occupants in writing. Under the provisions of section 16, the subletting of a tenancy must be done in writing, as well as any agreement to alterations. Everything requires consent in writing from the landlord. The problem is that many landlords will not provide such written consent. With all due respect to the Minister of State, this situation does not involve a public authority accustomed to providing written consents. Situations will arise where the tenant meets the landlord on the day the rent is being paid and says, "Padraic McCormack has moved out and John Cregan is moving in. Is that all right?" The landlord says, "That's fine, yes.", but never produces an agreement in writing. Then the new tenant will have no protection at all and cannot establish when the tenancy started.
That tenant will be in the landlord's tenancy book, which a landlord is obliged to keep.
Is he?
He is.
If that is the case, is there a necessity to give the consent in writing? This is something that might have to be changed. The problem is that if a dispute comes to the board, the board will have to find that, if there is no consent in writing, the tenant has no status. Written consent from the landlord also arises elsewhere in the Bill concerning the carrying out of improvements, such as making alterations or painting walls. Landlords do not maintain a quasi pen-pal correspondence with their tenants on such matters. In practice, they meet in a corridor when the rent is due and a tenant will ask if it all right to put a lick of paint on the bathroom wall. The landlord may say that is fine but there is no consent in writing. If a row develops over it, it will go to the board, which will ask where the written consent is. What will happen if the tenant cannot produce any written consent and the landlord denies having given consent?
Everybody should become more professional in this regard. Tenants should formally write to the landlord, rather than meeting in a corridor. If people are to claim their rights later on, there is a requirement on them to record matters by writing to the landlord and keeping a copy of the correspondence. In that way, a tenant can show the file to the board should a dispute arise. Tenants do not want to have any hassle with their landlords but if they do not receive a written acknowledgement they can gently suggest that they may bring the matter to the notice of the board. Such letters could be registered with the board.
Would Deputy Gilmore be eligible to serve on the board?
Not in his current status. I should not say it, but the usual exceptions — politicians, criminals and lunatics — apply. They are usually excluded from most boards.
How stands the amendment?
It is withdrawn in view of the assurances in amendment No. 104.
On the point I raised on written notice, I intend to introduce an amendment on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 108:
In page 34, lines 35 to 45, to delete all words from and including "dwelling" in line 35 down to and including "requester." in line 45 and substitute the following:
"dwelling.
(5) The landlord may not unreasonably refuse to accede to such a request; if the request is acceded to-
(a) an acknowledgement in writing by the landlord that the requester has become a tenant of the landlord suffices for the purpose,
(b) the requester shall hold the dwelling—
(i) on the same terms, or as appropriately modified, as those on which the existing tenant or multiple tenants hold the dwelling (other than terms comprising the rights, restrictions and obligations which arise by virtue of a Part 4 tenancy being in existence in respect of the dwelling),
(ii) upon (if such be the case) subsection (3) being satisfied in respect of the requester, subject to the same rights, restrictions and obligations as those subject to which the multiple tenant whose continuous occupation gave rise to the Part 4 tenancy’ s existence holds the dwelling.”.
Amendment agreed to.
Section 49, as amended, agreed to.
SECTION 50.
Amendments Nos. 109 and 110 are cognate and may be discussed together by agreement.
I move amendment No. 109:
In page 35, subsection (3)(a), line 25, after “protection” to insert “, if he or she otherwise has the benefit of it,”.
These are two technical amendments inserting the words "if he or she otherwise has the benefit of it" in paragraphs (a) and (b) of section 50(3) for the purpose of clarity.
Amendment agreed to.
I move amendment No. 110:
In page 35, subsection (3)(b), line 28, after “protection” to insert “, if he or she otherwise has the benefit of it,”.
Amendment agreed to.
Section 50, as amended, agreed to.
Section 51 agreed to.
NEW SECTION.
I move amendment No. 111:
In page 36, before section 52, to insert the following new section:
"52.—The conferral of the benefit of the protections under this Part on a person referred to in section 49(2)or (3) shall not read as operating to bring into existence a separate Part 4 tenancy in his or her favour as respects the dwelling concerned.”.
This amendment substitutes a new section for the published section 52. It clarifies that the later qualification for the benefit of the protection of a Part 4 tenancy, as provided for in the amended subsections (2) and (3) of section 49, does not have the effect of bringing separate Part 4 tenancies into existence in respect of the one dwelling. The necessity to redraft the section derived from the substantial amendments proposed to section 49. It is the same issue about which we spoke earlier in regard to separate Part 4 tenancy to arise in a multiple tenant's favour.
Amendment agreed to.
Section 52 deleted.
SECTION 53.
I move amendment No. 112:
In page 36, subsection (1), line 33, after "tenancy" to insert "agreement".
This is a technical amendment adding the word "agreement" after the word "tenancy".
Amendment agreed to.
Section 53, as amended, agreed to.
Section 54 agreed to.
SECTION 55.
I move amendment No. 113:
In page 37, subsection (3), lines 27 to 30, to delete all words from and including "make" in line 27 down to and including "possession." in line 30 and substitute the following:
", if he or she or it considers it proper to do so, make—
(a) a determination comprising a direction that the landlord shall pay to the complainant an amount by way of damages for that deprivation of possession,
(b) subject to section 116, a determination comprising a direction that the complainant be permitted to resume possession of the dwelling concerned, or
(c) subject to section 116, a determination comprising both of the foregoing directions.
(4) Damages may not be directed to be paid to a particular person, in respect of the same deprivation of possession, under both subsection (3) and section 116(1).”.
This amendment replaces section 55(3) with two new subsections, the purpose of which is to clarify that reinstatement of the ousted tenant is one of the remedies available and that damages may not be awarded under both this section and section 116 in respect of the same false termination.
Why is the Minister of State doing that?
The purpose is to clarify the remedies for abuse of the termination procedure. The amendment replaces section 55(3) with two new subsections, the purpose of which is to clarify that reinstatement of the ousted tenant is one of the remedies available and that damages may not be awarded under both this section and section 116 in respect of the same false termination. There are similarities between the two sections. Section 55 deals with a complaint by a tenant who, having vacated, subsequently discovers that the termination notice was false whereas section 116 is the substantive section dealing with the reinstatement of tenants who have been wrongly deprived of possession. It allows a determination order not to reinstate a tenant where a new tenant, who was not complicit in the false termination, would suffer hardship.
Is Deputy Gilmore any wiser?
No. The board can order that the tenant be reinstated but, in practice, it will not order that until some time after the tenant has gone. Can the tenant be compensated for the interval between the time he or she leaves the dwelling and the time he or she is reinstated?
That is up to the board. It can award damages. Equally, it can award that the tenant be reinstated. However, if it decides to reinstate a tenant, it should be mindful of the fact that a new tenant has taken up occupancy.
This amendment means that one cannot both reinstate and compensate. Is that not what it comes down to?
It does not mean that. It means that damages should come from one or other section and that one cannot get damages under both clauses.
Amendment agreed to.
Section 55, as amended, agreed to.
Sitting suspended at 12.50 p.m. and resumed at 1.30 p.m.
Section 56 agreed to.
SECTION 57.
Amendment No. 115 is an alternative to amendment No. 114 and both may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 114:
In page 38, lines 35 to 41, to delete subsection (3) and substitute the following:
"(3) Each of the following——
(a) a tenancy referred to in subsection (2)(a) (unless it expressly excludes this means of termination),
(b) a tenancy referred to in subsection (2)(b), and
(c) a tenancy of a dwelling created before or after the relevant date in so far as its operation is not affected by Part 4,
shall be construed as including a term enabling its termination by means of a notice of termination that complies with this Part (but, in the case of a tenancy that is for a fixed period, unless it provides otherwise, only where there has been a failure by the party in relation to whom the notice is served to comply with any obligations of the tenancy).".
Section 57 makes it clear that the termination of tenancies is to be carried out in accordance with the provisions contained in this part only and that landlords will no longer be able to utilise means such as forfeiture and re-entry so as to recover possession of a dwelling. It is somewhat technical in nature but that is its purpose. The amendment provides for a new subsection to restate the content of section 57(3) in a more easily comprehensible way. The purpose of the subsection is to ensure, notwithstanding section 57(1), the termination of tenancies where there has been a breach of obligations will in future be possible, unless in the case of a tenancy providing more beneficial terms, the parties deliberately and contractually preclude termination as a possibility. This is based on legal advice.
The Minister of State said the new subsection is absolutely clear but it is confused. Our amendment is a protest about the language used in drafting the legislation. This is one the best recent examples of the complicated language the Parliamentary Counsel insists on using. The section should be re-drafted in understandable English. The section states "A tenancy referred to in subsection (2)(a) or (b) (including a tenancy created before the relevant date) shall, unless it expressly excludes this means of termination, be construed as including a term to enable its termination by means of a notice of termination that complies with the Part (but, in the case of a tenancy that is for a fixed period, unless it provides otherwise, only where there has been a failure by a party to comply with the obligations of the tenancy).” I cannot make head nor tail of that. It is not comprehensible and that is why the amendment has been tabled. There is not much point in inserting such a subsection if people cannot understand it. It reflects poorly on the Parliamentary Counsel. The amendment is a protest against the language used. I do not know whether amendment No. 114 will be an improvement. I do not have it in front of me and, therefore, I would like to ascertain whether it makes sense.
I empathise with the general principles expressed by the Deputy. I agree this is a highly technical provision but it has been inserted on the basis of legal advice. I am not sure if my comments help but I agree the original wording is not great. The legal experts feel the new wording is crystal clear, to them anyway.
It is not.
The amendments are related but my amendment will delete section 57(3) and replace it with a new provision.
The Minister of State agrees with the deletion of section 57(3). That is a start.
Section 57(1) puts an end to a number of existing means of termination such as forfeiture and re-entry. The purpose of the new section 57(3) is that the termination of tenancies where there has been a breach of obligations will in future be possible, unless, in the case of a tenancy providing more beneficial terms, the parties deliberately and contractually preclude termination as a possibility. My amendment is based on legal advice and it is felt it addresses the issue more appropriately.
It would be better to include a provision that could be understood by everybody entering into such agreements rather than adopting a legal interpretation of a section. I dread the possibility of legal action regarding such agreements because the tenant or landlord would have to seek legal advice to interpret the section in the first instance. I still cannot understand why such complicated wording is used in legislation. Why can the provisions not be worded in simple terms so that ordinary men and women on the street and in the House can understand it?
I accept the provision is highly technical. I undertake to explore whether it should be worded in more comprehensible terms before Report Stage. Legislation is very legal. If the legal people can understand it, that helps, but it would be more helpful if the layman could also understand it. Forfeiture and re-entry were provided for legally and, in certain circumstances, landlords had significant rights. While those provisions have been abolished, in certain circumstances, landlords should still have rights in regard to certain leases. Even my explanatory notes are not in very great English.
I am not happy with the Minister of State's explanation but I am happy with his assurance that he will re-examine this issue. The silence of other members indicates they are as badly off as myself in this regard. The amendment is agreed subject to the Minister of State returning to the issue again on Report Stage.
Amendment agreed to.
Amendment No. 115 not moved.
Section 57, as amended, agreed to.
Section 58 agreed to.
SECTION 59.
Amendments Nos. 118 and 120 are cognate to amendment No. 116 and amendment No. 121 is related. All may be discussed together by agreement.
I move amendment No. 116:
In page 39, line 10, after "then" to insert ", subject to section 64(4),”.
The purpose of the amendments is to prevent the use of long notice periods of more than ten weeks as a means of circumventing the security of tenure measure. We discussed this issue yesterday. If a tenant was on probation for six months, the legislation provided that a landlord could terminate the tenancy by giving notice after five and a half months. Theoretically, he could give the tenant six or 12 months notice after five and a half months. We are trying to prevent the use of long notice periods of more than ten weeks. It is right and proper that a tenant should be given notice.
There was a danger in the Bill as drafted that landlords would get back to where they wanted to be, having a one year probationary period, by giving a long notice as the six months came up. We are trying to limit the period of long notice by providing for a maximum period of ten weeks. Landlord representative interests have sought an increase to one year in the period before which a Part 4 protection applies; that has been their argument all along, presumably as a landlord who would not want a tenant to get the benefit of the protection would, as a matter of practice, terminate tenancies coming up to one year's duration. Terminating tenancies in those six months by giving a notice period of six months would have achieved a similar outcome, so we are trying to close off that possibility. There continues to be no upper limit on the notice period the parties may give when terminating a Part 4 or further Part 4 tenancy. We are seeking to close off the notice that is given in the first six months. Landlords can use notice periods of ten weeks, two months or six months, but, as drafted, the Bill's provisions could have led to an abuse of the system. The amendments seek to limit the possibility of this happening.
Amendment agreed to.
Section 59, as amended, agreed to.
Section 60 agreed to.
SECTION 61.
Amendments Nos. 117 and 119 are related and may be discussed together by agreement.
I move amendment No. 117:
In page 40, subsection (2), lines 3 and 4, to delete "(which specifies" and substitute "and section 80(3) (which specify”.
This is a technical amendment inserting a reference to section 80(3), which relates to sub-tenancies as well as to Chapter 4 in section 61(2).
Amendment agreed to.
Question proposed: "That section 61, as amended, stand part of the Bill."
Section 61(1)(d) lists all the conditions with which a notice must comply to be valid. Will a notice of termination not be valid unless it complies with them? Also, paragraph (d) provides that notice shall be in such form, if any, as shall be prescribed. Does the Minister of State intend to prescribe the form of termination notices?
Section 61(1) lists the requirements under which a termination notice shall be valid. Paragraph (a) states that it must be in writing, be signed by the person serving it, specify the date of service and the date on which the tenancy shall terminate. Where a tenancy has been terminated by a landlord in circumstances where the tenant has the qualified right to continue in occupation for the remainder of the four year period the notice must state the reason for termination. The notice must also advise the recipient that any dispute as to the legitimacy of the notice must be referred to the board within 28 days of its receipt.
The Deputy asks if all these conditions are necessary to make the notice valid and the answer is yes. Are we going to prescribe a form? If the board considers it necessary to standardise this and bring order to how it is done then we can do so.
Question put and agreed to.
SECTION 62.
I move amendment No. 118:
In page 40, paragraph (b), line 11, after “chooses” to insert “, subject to section 64(4),”.
Amendment agreed to.
Section 62, as amended, agreed to.
SECTION 63.
I move amendment No. 119:
In page 40, subsection (3), lines 22 and 23, to delete "specified in it that complies with section 61(1)(c)” and substitute “the specification of which, in the notice of termination, complies with subsection (1)”.
Amendment agreed to.
Section 63, as amended, agreed to.
SECTION 64.
I move amendment No. 120:
In page 40, subsection (3), line 33, to delete "A" and substitute "Subject to subsection (4), a”.
Amendment agreed to.
I move amendment No. 121:
In page 40, between lines 34 and 35, to insert the following subsection:
"(4) If the duration of the tenancy concerned is less than 6 months, a period of notice of more than 70 days may not be given in respect of it.".
Amendment agreed to.
Section 64, as amended, agreed to.
SECTION 65.
Amendments Nos. 122 to 128, inclusive, are related and may be discussed together by agreement.
I move amendment No. 122:
In page 41, subsection (3), line 5, to delete "and Chapter 4”.
This section certifies the standard notice periods for terminating a tenancy. The notice periods apply equally to tenants and landlords and range from four weeks for a tenancy lasting less than six months to 12 weeks for a notice issuing in the fourth year of a tenancy. Terminations during the first six months of a further Part 4 tenancy requires 112 days, which is 16 weeks' notice.
Amendment No. 122 is a technical amendment which deletes the reference to Chapter 4 from subsection (3) as it is not required. It tidies up the section.
To address my amendments, this section provides for the notice period to be given by landlords and tenants in terminating tenancies. It proposes that a tenant should give the same notice to a landlord as a landlord gives to a tenant. First, there should be a distinction drawn between the period of notice given by a landlord to a tenant and that given by a tenant to a landlord. The relationship is not an equal one and the effect of the notice on the individuals is different. When a landlord issues a notice of termination to a tenant he or she is effectively rendering the tenant theoretically homeless unless the tenant can find alternative accommodation. What is at risk for the tenant is his or her home. When a tenant gives notice to a landlord the relative impact is not the same. It is then a matter for the landlord to advertise for alternative tenants and generally it is not as difficult to do that as it is for a tenant to find an alternative home. The principle that this should be the same is unreasonable.
One should also consider what is required from the perspective of the tenant. Someone with a four year tenancy would have to give their landlord four months, or 112 days' notice of the termination of the tenancy. It does not make sense that someone in employment may be required to give their employer a month's notice they are changing job while they must give their landlord four months notice in order to surrender their dwelling. I am proposing an alternative whereby a distinction should be drawn between the periods of notice required from tenants and landlords. The periods of notice set down in the Bill would remain in the case of landlords giving notice to tenants. A tenant who has less than six months tenancy should be required to give seven days' notice of termination. Those with a tanancy of between six months and a year should be required to give two weeks' notice. The requirements for those with a tenancy of between a year and four years should be a month's notice, while it should be six weeks for those with a tenancy of four or more years.
Common sense must prevail in this matter. Deputy Gilmore's amendment is worth serious consideration. Given the fluctuation in employment and so on, people are much more mobile than they were in the past. The amount of notice required from the tenant to the landlord, as indicated in the Bill, is not practical. Deputy Gilmore's proposal appears reasonable whereby a tenant would be required to give seven days' notice for less than six months tenancy, two weeks for up to a year's tenancy, a month's notice for between a year and four years' tenancy and six weeks' notice for four years or more tenancy. The Minister should accept the amendment and include the proposal in the Bill.
I am sorry if I keep referring to the core recommendations of the rented sector commission, one of which was that the same notice periods should apply to landlords and tenants. This is the law up to now.
A month.
A month. Whether it worked effectively or not, in the past the law required that the same notice period applied both ways. The commission discussions sought to bring people from where they are, given the baggage and the background that exists. Many landlords feel that in many respect, tenants have not been fair to them. Tenants often did not live by the law and disappeared quickly. There was a demand from landlords that if rights were being conferred on tenants, they should act more responsibly. It was one of the core recommendations that the same notice periods should apply to both tenants and landlords.
It must be remembered that it is open to parties to agree shorter notice periods when terminating a tenancy. It may not be a fair comparison, but in employment law there are rules about what notice people should give in both directions. Often it suits both employees and employers to make a deal which ends matters more speedily if both sides are agreeable to do so. It is open to the parties to agree shorter notice periods when terminating a tenancy. This has probably happened up to now and it will happen in many cases in the future.
The application of the same standard notice periods to landlords and tenants is an important reflection of the balanced approach which is the hallmark of the Bill. Deputy Gilmore suggests it is an unequal partnership. There is unfairness in the current arrangements and we are trying to professionalise and equalise matters. We are trying to give rights to tenants, but with rights comes responsibilities. We are trying to strike a balance and bring order to the situation.
The provision of adequate notice of tenancy termination is an essential element of an orderly and stable tenancy system. In prescribing notice periods, it must also be recognised that landlords can suffer costs if adequate notice is not given by tenants. Given the inadequately regulated regime up to now, it is worth noting that under the current law the same notice period of 28 days applied. The Deputy is suggesting that it should be different for tenants. Under the reform system provided for in the Bill, tenants will enjoy a number of advantages, including the fact that during the three and a half years security of tenure period they will, unlike landlords, be able to terminate the tenancy at any time without having to specify grounds.
We have gone through a period when the tenant has been holding all the aces, so to speak. The tenant is free during the three and a half year period to leave while landlords are very limited in what they can do. They cannot get a termination of tenancy, except under certain agreements. We are trying to deal with the termination of tenancies in a balanced way. We are giving extended notice periods to tenants. We could leave things as they are and apply a notice period of 28 days to both sides, but in the case of tenants we are seeking to give more protection and provide for extended notice periods up to a maximum of 112 days. In giving protection to tenants, we must try to treat both sides equally. These extra rights mean that tenants must also accept responsibilities.
On balance, the current system offers more protection to tenants than the one which is being proposed. Deputy Gilmore made the point that the landlord is in a much better position in regard to ending a tenancy. Tenants usually end their tenancy following a change in circumstances, whether employment, finance, marital break-up and so on and the period of notice is of beyond what is necessary.
A tenant with four or more years tenancy will be required to give four months notice. Does this apply to the six month probationary period after the four year Part 4 tenancy?
Yes.
Can a tenant who has four years tenancy, and goes back on probation, have the tenancy terminated for no reason by the landlord? Is it required in that six month second probationary period to give four months' notice to the landlord?
Things are hugely improved from the tenant's point of view. We are trying to give both sides equal rights.
One must do something that makes sense. Of course tenants must give notice to a landlord and that period of notice should be sufficient to allow the landlord to re-advertise the dwelling and have a reasonable chance of getting an alternative tenant so that there is not an interruption in the landlord's income. That is reasonable and most people would agree that a month is a reasonable length of time for it to be done. It is also reasonable that there should be a relationship to the length of the tenancy. A tenant who has been in a property for a very long time might expect to give the landlord longer notice. The Minister of State uses the analogy of employment law. Can he tell me a single case of an employer who would expect an employee with four years service to give him four months notice of termination? Unless there is a very special professional contract, the period of notice required is, generally, a month. Will civil servants who are volunteering, if that is the appropriate term, to decentralise, perhaps to Parlon country, be given four months after they have signed off on their agreement to serve out their notice with their landlord?
Employment law may not be comparable. I mentioned it as law where both sides can agree something to their common liking. If a contract is ending the parties may come to an agreement which suits both sides to the agreement. The fact that something is stated in law does not prevent the parties from coming to a more sensible solution which suits both sides.
Threshold expressed the concern that someone going from the private rented sector to the local authority sector might have a difficulty. Once the Bill is passed that aspect can be looked after because local authorities will be acquainted with the legislation. I accept that at present, if one is allocated a local authority house one is expected to pay the rent on the dwelling from the following week.
They can give three days notice.
Yes. Once the law is passed, local authorities will be acquainted with the new law and will be expected to alter their procedures.
Is the Minister of State seriously saying that if a local authority allocates a dwelling to a tenant, it will leave that dwelling vacant for four months while the tenant serves out his or her notice with a private landlord?
No, I would not recommend that.
Neither would I, not in my constituency.
I do not want to label any place but it would not be recommended to leave a tenancy vacant. I am not talking about leaving the dwelling vacant. It would be necessary, sadly, in many cases to occupy a local authority dwelling fairly quickly.
Would the tenant have the local authority dwelling free of rent for four months, while paying four months rent to the private landlord?
Documentation would have to be produced to a local authority to show that is happening. Certain current practices and procedures will have to be looked on more generously.
Would the tenant receive rent allowance for four months?
For which dwelling?
Let us suppose a person who has had a four year tenancy in a private dwelling and is in receipt of rent allowance is allocated a local authority dwelling. The law will require that person to give four months notice to the landlord. Who will pay the rent to the private landlord when the tenant occupies the local authority dwelling?
This will not work. Local authority tenants will have to be exempt from this requirement. A local authority could not operate a house allocation system if a new local authority tenant had to give four months notice to a private landlord. A house could not be allocated four months before it was ready because it would not be known when it would be ready. Similarly, a house could not be left vacant for four months after it was completed while the new tenant was serving four months notice to the private landlord because as it would be used for squatting and deteriorate. Furthermore, leaving property idle for four months would be a waste of public funds.
This measure is not practical. Many, if not all, applicants for local authority houses are in rented accommodation unless they are living with their families.
When the legislation is enacted many procedures will have to change.
A landlord might agree to a shorter period of notice but he could insist on the full period because that will be the law. We cannot be responsible for putting something into law which is not workable.
I presume the Minister for Social and Family Affairs has given her comments on this legislation. Will she pay rent allowance to landlords? Let us suppose a tenant with a four year tenancy and in receipt of rent allowance is offered a dwelling by Dún Laoghaire-Rathdown County Council, the tenant accepts tenancy of the local authority dwelling and gives four months notice to the private landlord. Will the Minister for Social and Family Affairs pay the rent allowance to the private landlord for four months? What will happen if the tenant moves out and the private landlord re-lets the dwelling to a new tenant while continuing to receive rent for the former tenant, who is now housed by the county council in Ballybrack?
Will the Minister of State examine this provision again?
I accept that an argument has been put forward. The important principle is equality of treatment of landlord and tenant and giving the same notice period to both. That has been enshrined in our law since God's time. The present period is 28 days. If we move to support the tenant what happens to our basic principle? The Deputies are citing extreme cases, which can make a laugh of the law.
They happen every day of the week.
The notice period is far too long. It will create enormous difficulties for local authorities and health boards. It would be of great assistance to tenants and local authorities if it was considerably reduced.
Should we go back to 28 days for both parties?
The Minister of State speaks about equality of treatment. I do not agree that the same notice period is required for both parties. There should be a shorter period for tenants.
This is a fundamental principle and the discussion on it at the commission was protracted and detailed.
Did anyone represent local authority tenants at the commission?
The commission included people from all sectors and relevant organisations. The local authority difficulty will be easily solved. It would simply mean getting the agreement of the local authorities or instructing them not to charge rent to someone who was paying rent elsewhere.
It is not about charging rent. It is not practical to allocate a house to a person who will not be paying rent. It is also not practical that such a house be unoccupied for four months. That will not work given the cost of local authority housing to the State. To provide in this Bill that such persons will receive a four month rent-free period is not a solution to the problem.
I am aware of the practical difficulties. I know what can happen to vacant property. The tenant would be legally responsible for both properties whether they resided in one or the other. Splitting a family for four months or having a person sitting shotgun in both properties will not solve the problem either. How do we handle it? One of the core principles is that the battle be equal on both sides. The notice must be applied to landlord and tenant. Landlords fought a rearguard action in this regard.
Did landlords request that we provide that people with four years' tenancy would have to give four months' notice?
Yes. They sought to retain what they were getting at the time.
A month?
Let us forget about whether the time in question was one or two months. The principle that tenants give the same notice as that given by a landlord was established a long time ago. The landlords sought to ensure that equality of treatment would prevail so that their situation vis-à-vis thetenant would not be worsened.
The Minister of State will have to bite the bullet and resort to a shorter notice period on each side if that is the principle he wishes to accept. I do not know if that is a valid principle. A system which requires a tenant to give four months' notice under the circumstances outlined cannot work.
I agree with my colleagues that this provision is impractical and that it will cause serious difficulties for local authorities, especially in regard to rent supplement. The Minister of State needs to reconsider this provision.
The principle of equality is new to me. I do not think anybody, including landlords, accepts that the relationship is an equal one. The legislation provides for huge improvements for landlords from a practical point of view. In theory, a landlord was required to give 28 days' notice. In practice, what has happened, and this is the case in my constituency, is that the landlord gives the notice and the tenant does not move. It might be six months later or more before the landlord seeks a court order to remove the tenant. Local authorities, because of the housing situation, were advising tenants to stay put. Landlords were, in practice, required to give several months' notice and often had to wait six to 12 months to regain their property.
The legislation improves the situation for the landlord in that regard and allows him or her to recover property more quickly when a tenant causes damage to it or does not comply with the terms of the agreement. Allowing for a notice period of four months will not, in normal circumstances, cause great hardship. It would take a landlord wishing to change the use of the property and so on at least that length of time to do so. This provision will not, in most cases, be onerous on landlords but it is unreasonable for tenants.
A solution would be to draw a distinction between the period of notice required from landlords as opposed to tenants. The Minister of State used the analogy of employment law. Legislation governing the minimum notice period for employees provides for a specific period of notice from employers to employees and another from employees to employers. There is a precedent in existence.
I accept what Deputies are saying. This provision was recommended by the commission. I would like to read the commission's report on this again. I understand this matter was discussed at great length. Landlords demanded that they benefit if the notice period was extended for tenants. The Deputies have a point about the problems that can arise on the ground. However, bad cases do not make good law. I am not aware of the points put forward by landlords in support of their argument. I am sure Deputies are not tied by their recommendations because, in some cases, they are suggesting we reduce the notice period below the 28 days.
I am not hung up on that.
Is the Deputy suggesting that period be halved? The minimum period will remain. The extra protection being given to tenants may unravel if landlords raise equality or constitutional issues. There is a danger of that happening. I agree there are practical problems with some cases. I will re-examine it but may not be able to go as far as the Deputy might wish.
We do not wish to enact legislation which encourages tenants to walk away. A tenant moving from one tenancy to another is required to have good standing with the board. However, if he or she is moving into the local authority sector, he or she might not be too concerned about his or her standing.
He or she would lose his or her deposit if he or she left before the four months was up.
I have tried to hold the line on what the commission saw as core recommendations. However, Deputies have raised some important points.
They are only recommendations.
Yes.
Three years ago, the commission could not have taken the Government's plan to decentralise a large number of private sector tenants to boost the private rented sector in different parts of the country.
That is not relevant one way or the other.
We most move on.
We will re-examine the provision. There is a danger that some of the protections we are including will be unravelled. However, I will come back to this matter on Report Stage.
Amendment agreed to.
Amendments Nos. 123 to 128, inclusive, are related and will be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 123:
In page 41, column (1), line 9, after "days" to insert "in the case of termination by a landlord; 7 days in the case of termination by a tenant".
I propose to withdraw these amendments until Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 124:
In page 41, column (1), line 10, after "days" to insert "in the case of termination by a landlord; 14 days in the case of termination by a tenant".
Amendment, by leave, withdrawn.
I move amendment No. 125:
In page 41, column (1), line 11, after "days" to insert "in the case of termination by a landlord; 28 days in the case of termination by a tenant".
Amendment, by leave, withdrawn.
I move amendment No. 126:
In page 41, column (1), line 12, after "days" to insert "in the case of termination by a landlord; 28 days in the case of termination by a tenant".
Amendment, by leave, withdrawn.
I move amendment No. 127:
In page 41, column (1), line 13, after "days" to insert "in the case of termination by a landlord; 28 days in the case of termination by a tenant".
Amendment, by leave, withdrawn.
I move amendment No. 128:
In page 41, column (1), line 14, after "days" to insert "in the case of termination by a landlord; 42 days in the case of termination by a tenant".
Amendment, by leave, withdrawn.
Question proposed: "That section 65, as amended, stand part of the Bill."
I am going along with the formality but I do not agree with what is in it.
Question put and agreed to.
SECTION 66.
I move amendment No. 129:
In page 41, subsection (3), line 36, to delete "7" and substitute "14".
This deals with the shorter period of notice which the landlord is required to give a tenant where the tenant is in default of the tenancy agreement. I do not disagree with a short period of notice in those circumstances. However, one of the circumstances in which a tenant would be liable for this short period of notice is where "the tenant has been notified in writing by the landlord that an amount of rent due has not been paid and 7 days elapse from the receipt of that notice without the amount concerned having been paid to the landlord." I do not support the non-payment of rent to the landlord but seven days is too short a period of time to give a tenant to pay up in those circumstances. I propose that the period be extended to 14 days.
I can think of many circumstances when seven days would be insufficient, for example, holidays, a family bereavement, etc. Also, a tenant might be in financial difficulty and might need to borrow or raise the money. Seven days is very short in those circumstances. Another example is the case of an industrial dispute where a tenant out on strike would need some time to arrange his or her affairs to raise the finance to pay. Changing the provision from seven to 14 days would not diminish the purpose of the section but would provide a little more space for payment to be made.
The Minister appears keen to agree with the Deputy; we will let him make a reply.
The provision gives a tenant seven days in which to pay rent arrears owing after receiving notification from the landlord that the tenancy will be terminated unless the rent is paid up to date. I presume that arrears have already built up at that stage. The landlord is hardly out of the blocks on this on day one. Therefore, the provision only applies from when the landlord has written threatening the termination of the tenancy. If any of the due rent remains unpaid, then after seven days the landlord may issue a notice of termination of the tenancy giving the tenant 28 days' notice. This was a recommendation from the commission. The theory of how it works is that all the landlord has done at that stage is to give notice of his intention to terminate the tenancy and to put the procedures in place.
I am not disputing the procedures or the landlord's right to initiate them. However, most of us have come across hardship cases in our constituency work. Sometimes people go into denial when the rent starts going into arrears and the notices start coming. Often they take no action until they receive notice the sheriff is coming or the case is going to court. I presume it is at that point that the notice arrives and they have seven or 14 days to pay the arrears. It is often only at that point that action is taken. Seven days to pay up is a bit on the tight side.
Let us suppose, for instance, one partner in a couple had a drink or gambling problem and the rent was not paid. Eventually it might get to the point where they have seven days to pay up. A significant amount of rent might be owing in that situation and it could take longer than seven days to get it together. I hope the Minister of State will allow for that longer period.
The Deputy has pointed out that there could already be arrears. This might depend on how tolerant the landlord was from the beginning. If the rent was due on the first of the month and the landlord came on the second of the month and issued the letter saying the tenant had seven days to pay or would have to get out, then I would agree with the Deputy. However, if the landlord received only half the payment one month and only three quarters of the payment the previous month, he would be at the end of his tether and arrears would have built up. In principle, I might go along with the Deputy but it does depend on the context. The Deputy is not proposing any time for the sending of this letter but is saying there should be 14 days for payment once the letter is sent.
There is no dispute about the rent. If it is owed, it is owed. The landlord is entitled to it and is entitled to recover it. If there is a default of payment, he is entitled to issue an ultimatum to the tenant. We are talking about the ultimatum. A seven day ultimatum is a bit tight and should be loosened.
Perhaps seven days will not change the world. I accept the amendment.
Amendment agreed to.
Section 66, as amended, agreed to.
Sections 67 to 71, inclusive, agreed to.
SECTION 72.
Amendments Nos. 130 to 132, inclusive, are related and will be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 130:
In page 44, subsection (1), line 17, to delete "This section" and substitute "Subsection (2)”.
These amendments effectively replace the word section with the word subsection and constitute technical drafting amendments. Amendment No. 132 inserts a further subsection to make it clear that it will not be possible for any one tenant in a multiple tenant scenario to terminate a periodic tenancy without the knowledge or consent of the other tenants. Amendment No. 130 is a technical amendment to change a word.
Amendment agreed to.
I move Amendment No. 131:
In page 44, subsection (2), line 20, to delete "section" and substitute "subsection".
Amendment agreed to.
I move amendment No. 132:
In page 44, between lines 25 and 26, to insert the following subsection:
"(3) Any rule of law that a notice of termination served by any of 2 or more multiple tenants under a periodic tenancy of a dwelling without the concurrence of the other or others, or without the knowledge of the other or others, is effective to terminate that tenancy is abolished.".
Amendment agreed to.
Section 72, as amended, agreed to.
Section 73 agreed to.
SECTION 74.
Amendments Nos. 133 and 215 are related and may be discussed together by agreement.
I move amendment No. 133:
In page 45, subsection (2), line 19, to delete "or 76” and substitute“, 76 or 186(4)”.
This is a technical amendment and is consequential on amendment No. 215. It inserts a reference to section 186(4) into section 74(2) which lists complaints in the Bill that are encompassed by the term "disputes". It explains that the term "dispute" covers complaints referred to in sections 55, 75 and 76 and paragraph 7 of the Schedule. As another new complaint has been inserted into section 186, it now needs to be listed in section 74(2).
Amendment No. 215 replaces section 186(3) with a new subsection that clarifies that the notice of intended overholding must be sent by the tenant to the landlord between one and three months before the expiry of the fixed term. It inserts two further subsections providing that, where a tenant fails to comply with the notification requirement, a landlord may refer a complaint to the board and be awarded compensation for loss incurred by that failure. This section is necessary because no termination notice is required to terminate a tenancy that is expiring with the passing of time.
Amendment agreed to.
Section 74, as amended, agreed to.
SECTION 75.
I move amendment No. 134:
In page 46, subsection (2), line 13, to delete "28" and substitute "60".
This refers to section 75(2) which relates to the right of referral to the board. Subsection (2) provides that, in the case of a tenancy that has been terminated, a dispute as to the amount of any rent that had been agreed to or paid by the former tenant may not be referred by him or her to the board for resolution at any time after the period of 28 days from the termination of the tenancy. A period of 28 days after the termination of the tenancy is a very short time to allow the tenant to refer a complaint of this kind. I propose the period of time should be increased to 60 days.
I do not agree with that proposal. If a tenant considers that the rent exceeds the market rent, the time to dispute it is when the tenancy is ongoing. Once the tenancy has terminated, if the tenant has a complaint in that regard, he or she should act very quickly and not wait more than four weeks after the termination of the tenancy. I wonder what would be the point in having an argument afterwards. A tenant may have been resident for six months or four years and, if he or she has a complaint about the rent, the time to deal with that and go to the board is when the tenancy is still in place or at least in the early days following the termination of the tenancy. It might well be that there was a dispute about something else or a dispute about the deposit which may be thrown into the equation. If a tenant were to have that argument, it should be dealt with during the tenancy and 28 days is more than sufficient time once the tenancy ends.
Amendment, by leave, withdrawn.
Section 75 agreed to.
NEW SECTION.
I move amendment No. 135:
In page 46, before section 76, to insert the following new section:
"76.—Either or both parties to an existing or terminated licence to occupy a dwelling may, individually or jointly, as appropriate, refer to the Board a licence agreement relating to a dwelling so that the Board may determine whether——
(a) it is a licence, or
(b) determine whether it is a device by which the landlord was seeking to deny the tenant of his or her rights under this Act.”.
It is our concern that the failure of this Bill to deal with the question of licences means that landlords might use licences as a means of defeating the tenant's rights which otherwise would arise from the operation of a tenancy under this Bill. We are not happy with it for that reason.
The provisions in section 83, as amended on foot of my proposed amendment, will ensure that decisions by the board to reject dispute referrals will have to follow a rigorous analysis of their application to this legislation. There is a well-established case law in the area of licensing versus tenancy arrangements and the board will be required to have regard to this case law when deciding whether to accept a dispute referral.
Work being undertaken by the Law Reform Commission to review landlord and tenant law may also have a bearing on this matter. If the letting has the characteristics of a tenancy, then unless one of the exclusions in section 3 applies, for example, owner-occupied houses being excluded from the Bill regardless of who else lives in the house, the letting will come within the scope of the Bill, regardless of what the landlord may seek to call it. This may be the situation without an amendment being required. A tenancy is granted by the landlord and a licence is granted by the tenant. I hope that helps the Deputy.
I propose the insertion of this new section to empower the board to lift the veil from a licence to determine whether it is a licence or merely a device. I wish to have clarification on the difference between "licence" and "a device" to be certain that it is a licence rather than a device. Will the board have that power to examine the status of a licence and under what section will it have that power?
Many of these matters go to the board. If there is a dispute, whether it is a tenancy or a licence, the board will decide on receipt of a complaint. A tenancy is granted by the landlord and a licence is granted by the tenant. If somebody disputes whether they have a licence or a tenancy——
The Minister said the licence is granted by the tenant. To whom does the tenant grant the licence?
To whomever else they have brought into the house. If there is a dispute, it will be for the board when it receives the complaint to decide on the status of the person.
Amendment, by leave, withdrawn.
SECTION 76.
I move amendment No. 136:
In page 46, subsection (2)(b), line 34, to delete “all”.
A tenant may have a problem with another tenant in the same building about which the landlord is taking no action. A tenant may become aware that a neighbouring tenant is peddling drugs, having all-night parties and generally behaving unreasonably. Section 76(2)(b) states: “before making the reference, the referrer, by communicating or attempting to communicate, with the relevant parties or former parties to the tenancy concerned, took all reasonable steps to resolve the matter”. This places a major obligation on the referrer. What is meant by “all reasonable steps”? This exists in addition to the obligation to communicate directly with the offending party. A tenant who suspects a neighbouring tenant of engaging in some illegal activity might not want to go in the door or send a letter asking him to stop grinding fertiliser in his coffee grinder or whatever activity he might be engaged in.
That is a new one.
The Deputy has not been following what is happening at the tribunals.
That is what they do in Donegal.
By deleting "all" there could be a danger that a complainant might argue that it would suffice to communicate with one of the parties but not with another.
That might be reasonable. A tenant who sees a parade of ne'er-do-wells at all hours of the day and night and suspects they are selling or distributing drugs could reasonably be expected to inform the landlord of the problem. If the landlord fails to address the problem, the tenant would have the right to go to the board. It is unreasonable to place the obligation on the unfortunate tenant to cross the corridor and beard the lion in the den.
What is reasonable? Many problems should be addressed by tenants without having to go to the landlord and others should be addressed by the landlord before going to the board. The tenant cannot ignore his or her duty and do nothing.
That is what I am saying. The word "all" places too great an onus.
What are reasonable steps as opposed to all reasonable steps?
A tenant who suspects some "heavies" across the corridor are selling drugs or are engaged in other unlawful activity should first go to the landlord and then take a case to the board. The board would ask the tenant whether he or she communicated directly with the other tenant. On discovering there was no such communication, under the Bill the board would be required——
If we took out the word "all", what would such a tenant do? It might not even be reasonable to tackle such problem tenants.
Section 76(2)(b) states: “before making the reference, the referrer, by communicating or attempting to communicate, with the relevant parties or former parties to the tenancy concerned”. This places an obligation to knock on the door and say there is a problem. In that case it would be reasonable to approach the landlord. If the landlord takes no action, the tenant could remind the landlord again. If it reaches the point where the tenant gets no satisfaction, it would be possible to make a reference to the board. In making such a reference to the board, the tenant, for his or her own safety, might request a degree of confidence. The initial stages of investigation by the board might require an element of confidentiality.
A complainant may wish to remain anonymous for his or her personal safety, which might not be possible with the present wording of the section. They are required to identify themselves by calling on the neighbour who is causing trouble.
I understand the point. I do not know if deleting the word "all" will make it any easier. In the case of a group of "heavies" of whom we are all afraid, it might be unreasonable to expect any action to be taken.
If "all" is removed, the discretion remains with the board. If "all" is retained, the board will have no choice but to strike out the proceedings unless all reasonable steps are taken.
I agree with the removal of "all". Reasonable steps would entail a knock on the door of the other tenant. As worded, the board would have to cross-examine the tenant to establish if he or she did everything, including doing a novena. "All reasonable steps" is too broad a term. "Reasonable steps" would entail asking once for the other tenant to cease the offending activity. "All reasonable steps" may mean asking every week for a month, which would be unreasonable. "All" could be removed without affecting the meaning of the section.
The Deputies are putting the emphasis on the wrong word. The important word is "reasonable" and not "all".
"Reasonable" might entail doing something once. By having "all" requires doing something several times.
I would emphasise "reasonable". The Deputies emphasise "all". The word "reasonable" is the major issue. The answer to the question of what is reasonable might vary between Galway and Dublin or from tenancy to tenancy. That is the point. It would not be reasonable to have to tackle a group of "heavies". One would not be expected to do anything which puts one's well-being at risk.
If one hears loud music from across one's corridor, one might knock on one's neighbour's door to complain that one cannot get to sleep and to ask for it to be turned down. The music might continue to be played at a loud volume, even after subsequent requests. In this instance, one's complaints are not written. I assume that the board would say that the complaint should be put in writing. One might consider that knocking on the door several times constitutes a reasonable step, but the Bill says that one should take all reasonable steps. In such circumstances, it could be argued that one should write to the person in question if one wants to be considered to have taken all reasonable steps.
The problem lies with the word "all". The board can decide if the steps were reasonable. This section obliges one to have taken all reasonable steps, however. One cannot be sure that one has taken all reasonable steps unless one takes legal action. Would one have to make a report to the Garda to be considered to have taken all reasonable steps in the case of a disturbance? If the woman saying a novena, to whom Deputy McCormack referred, lit many candles, would she have to be reported to the fire officer?
One could jest by saying that it might reasonable or expected in Galway, but perhaps seen as unreasonable in DeputyGilmore's neck of the woods.
The case may relate to a Senator who enjoys aromatherapy.
If a neighbour makes imaginary or exaggerated complaints against a tenant, does the neighbour have the right to say that he or she has taken all reasonable steps to satisfy his or her objections? Does the obligation to take all reasonable steps apply to such people in the same manner? There can be cases of people taking a dislike to a tenant in an adjoining apartment for various reasons and making exaggerated complaints about noise, etc., as a consequence. Are such people covered by this section in the same manner?
If we delete the word "all", there may be a danger that a complainant will argue that it is sufficient to communicate with one of the parties but not another. We are setting up a board of people who will act as judges. They will decide what is reasonable and what is not. They will set their own standards over time. Standards might vary from town to town, suburb to suburb and situation to situation. It may not necessarily be the case that one procedure will apply in all cases. The members of the board will judge what is reasonable in the circumstances.
They will have to comply with the Act.
Yes.
If the Act says that all reasonable steps must be taken, then all reasonable steps must be taken.
Yes.
"All" means "all".
It is all or nothing.
When the board's decision is judicially reviewed, the guys in the wigs will focus on the word "all".
I understand the Deputy's argument.
It is debatable.
My English may not be very good, but I argue that the important word in this clause is "reasonable". The major word is "reasonable".
Who has decided the word "reasonable" is more important than the word "all"?
That is the point I am trying to make.
It is spurious.
We do not expect the referrer to take unreasonable actions, but we are asking him or her to take all reasonable steps. One can answer "No" to the question, "Did you do X, Y and Z?", but still argue that one took all reasonable steps in the circumstances.
One is innocent until one is proved guilty.
Will the Minister of State accept the amendment?
No.
Deputy Gilmore has taken all reasonable steps to get the Minister of State to accept the amendment.
He did not light enough candles.
He took all reasonable steps, but he did not take all steps. The Deputy did not cross the floor to hit me on the head, as that would not have been reasonable.
It might have been more effective.
The Minister of State could be giving Deputy Gilmore an idea.
If he was to take all steps, he would call a vote.
Amendment put and declared lost.
I move amendment No. 137:
In page 46, between lines 37 and 38, to insert the following subsection:
"(3) For the purposes of facilitating the person's compliance with subsection (2)(b), the Board may furnish to a person who proposes to make a reference under this section the name and address of the landlord or his or her authorised agent (or the former landlord or his or her authorised agent) of the dwelling concerned if it appears to the Board that the first-mentioned person is a person who may make a reference under this section in relation to the matter concerned.”.
This amendment adds a further subsection to section 76. The new subsection will allow the board to provide the name and address of a landlord or agent to a person who proposes to make a complaint about a landlord's breach of his or her duties. This provision is necessary because one must have attempted to communicate with the parties to resolve the matter if one wishes to refer a third party complaint to the board. We spoke about this matter earlier. In the circumstances I have outlined, the landlord's contact details would be essential to facilitate an attempt at communication. This amendment will ensure that a third party complainant can acquire the landlord's contact details if he or she does not see him every Friday evening.
Amendment agreed to.
Section 76, as amended, agreed to.
SECTION 77.
Amendments Nos. 138 to 140, inclusive, are related and may be discussed together, by agreement.
I move amendment No. 138:
In page 46, between lines 41 and 42, to insert the following:
"(b) the amount that ought to be initially set (in compliance with section 19) as the amount of rent under a tenancy,”.
This amendment inserts a new paragraph into the existing section 77 to clarify that disputes referred to the board in respect of rent amounts may relate to the initial rent setting as well as to rent reviews.
It is a sensible proposal.
The effect of the Minister of State's amendment means that my amendment No. 139 is no longer needed.
Amendment agreed to.
Amendment No. 139 not moved.
I move amendment No. 140:
In page 47, between lines 40 and 41, to insert the following subsections:
"(2) For the avoidance of doubt, a dispute may, subject to the provisions of this Part, be referred by a sub-tenant to the Board for resolution with regard to a notice of termination served in respect of the head-tenancy out of which the sub-tenant's tenancy arises whether or not such a dispute is also so referred by the head-tenant.
(3) On such a reference by the sub-tenant he or she shall have standing to put in issue any matter relating to the notice of termination concerned despite the head-tenant's——
(a) not having taken any issue with the head-landlord in relation to that matter, or
(b) having made any representation to the landlord or done any act that stops him or her from taking any such issue with the head-landlord, or
(c) not putting in issue that matter in any dispute so referred by himself or herself with regard to the notice of termination.”.
This amendment inserts new sections 77(2) and 77(3) into the Bill. The new section 77(2) clarifies that a sub-tenant may refer a dispute to the board about the validity of a "termination served in respect of the head-tenancy out of which the sub-tenant's tenancy arises", even if the head-tenant does not refer the dispute to the board. The new section 77(3) further clarifies that a sub-tenant may raise any matter during the dispute resolution process even if the head-tenant did not take any issue with the termination, is legally barred from taking any issue with it or has not raised the matter during his or her own dispute referral. Section 80 sets out the procedures to be followed by a sub-tenant who is joining in a dispute referral by the head-tenant about the validity of a termination notice served by the landlord on the head-tenant.
This amendment explicitly provides that the sub-tenant may dispute the validity of the termination of the head-tenancy, where the head-tenant does not do so. This could arise if a head tenant sub-lets and then emigrates, for example, and the landlord subsequently terminates the tenancy by citing a section 34 ground such as the need for owner occupation.
We spoke about this earlier and I was a little confused myself. I was speaking afterwards in the local authority parlance with which I am more familiar. The sub-tenant is living in the accommodation and, in legal terms, the tenant is not. Where a tenant has gone for six months, for example, and sub-lets accommodation, the sub-tenant may very well wish to refer a dispute about the validity of the termination of the head tenancy even where the head tenant is indifferent. In that case, it is the sub-tenant who is concerned.
The new section also clarifies that in a case of a joint dispute referral on the validity of the termination of a head tenancy, a sub-tenant may raise an aspect not raised by the head tenant. The provision is an acceptance of the rights of the sub-tenant to push his or her concerns even if the absent tenant does not do so.
As a matter of interest, what is the case where a tenant is imprisoned?
Would he or she be paying rent?
If the rent was paid until the day he or she was imprisoned.
If somebody has gone away to Cork, China or Mountjoy and fails to pay their rent, the landlord can exercise his or her rights. Non-payment of rent is one of the clauses for termination of a tenancy.
Could the tenant tell the judge he or she had to give the landlord four weeks notice?
That is the point. He or she might not be able to provide 28 days notice. On another front, this is a very real issue. I could also discuss the homeless strategy. There is no doubt that there is a problem with people living alone in rented accommodation who, for whatever reason, surrender or lose their tenancy. It is different in the case of a family. Coming out of prison is one of the main routes into homelessness as we all know. However, the way to solve that is not to include a provision in this Bill to guarantee that one's accommodation was reserved while one was away for six months or six years.
Amendment agreed to.
Question proposed: "That section 77, as amended, stand part of the Bill."
I wish to give notice that I am bringing forward a Report Stage amendment to insert a provision imposing an explicit requirement on a head tenant when sub-letting to advise the prospective sub-tenant that the tenancy on offer is a sub-tenancy. The amendment may be made to section 77 or some other section to prevent tenants masquerading as landlords.
I am sure that has been done on occasion.
There was case like that lately in which a person took a tenancy and acted as a landlord. The tenant cannot pretend he or she is the owner and must make it clear that a sub-tenancy is being offered.
Question put and agreed to.
Sections 78 and 79 agreed to.
SECTION 80.
Amendments Nos. 141 to 143, inclusive, are related and may be discussed together, by agreement.
I move amendment No. 141:
In page 48, subsection (2), line 17, to delete "10" and substitute "21".
The purpose of this amendment is to extend the period in which a sub-tenant must make a referral to the board. Subsection (2) provides that a landlord in serving a notice of termination on a tenant in respect of a tenancy requires the tenant to terminate any sub-tenancy arising out of that tenancy. It further provides that the tenant shall, if the tenant intends to refer to the board for resolution a dispute concerning the termination of the tenancy, require the sub-tenant to inform him or her within ten days of receipt of the notice of whether the sub-tenant intends to refer to the board the issues which arise. I propose that the period be extended to 21 days. Amendment No. 143 is consequential.
This section deals with the situation of a head tenant of a dwelling which is sub-let who disputes the termination of the head tenancy where the landlord indicates in the notice of termination a requirement for the sub-tenancy to be terminated also. The provisions seek to ensure that if the sub-tenant also wishes to dispute the termination of either tenancy, the dispute referral is a joint one. This is to avoid any prospect of the board having to deal twice in a short time frame with what is, in effect, the same dispute. The section provides the sub-tenant with ten days from receipt of the communication from the head tenant to indicate whether he or she wishes to join in the head tenant's dispute. It requires the head tenant to wait 15 days from the date of serving of the relevant notice on the sub-tenant for a response, if any, before proceeding with the dispute referral.
As the head tenant has a period of only 28 days from receipt of the termination notice from the landlord within which to refer a dispute on its validity to the board, the time limit specified in section allows the head tenant a maximum of 13 days in which to make a decision. The proposed amendments would leave the head tenant with only three days in which to make a decision on whether to refer a dispute and to serve the necessary notice on the sub-tenant. That would be extremely tight.
Amendment, by leave, withdrawn.
I move amendment No. 142:
In page 48, subsection (3), lines 21 and 22, to delete all words from and including "required" in line 21 down to and including "tenant" in line 22 and substitute the following:
"of termination required by the landlord to be served by the head-tenant".
This is a technical amendment which seeks to substitute a revised wording in subsection (3). The requirement for a head tenant to serve a notice on a sub-tenant arises only where there is no dispute about the termination. As section 80 deals with disputed termination, the reference to Chapter 4 of Part 5 is inappropriate.
Amendment agreed to.
Amendment No. 143 not moved.
Section 80, as amended, agreed to.
SECTION 81.
Amendments Nos. 144 and 145 are cognate and may be discussed together, by agreement.
I move amendment No. 144:
In page 49, subsection (5), line 1, after "Board," to insert "the mediator,".
Both amendments propose to insert the word "mediator" into section 81(5) as mediators are included in the other subsections of this section dealing with withdrawals of dispute referrals. The effect of the amendments will be to allow mediators to check if the other party objects to the withdrawal and, if so, to direct the withdrawing party to pay any costs incurred by the other party.
Amendment agreed to.
I move amendment No. 145:
In page 49, subsection (5), line 4, after "Board," to insert "mediator,".
Amendment agreed to.
Section 81, as amended, agreed to.
SECTION 82.
Question proposed: "That section 82 stand part of the Bill."
Subsection (2) states: "Subject to subsection(3), the Board shall not deal with a dispute in relation to a tenancy referred to it under this Part by the landlord of the dwelling concerned if the tenancy is not registered under Part 7.” Does this mean that if a landlord does not register a dwelling, the tenant may refer a dispute to the board while the landlord may not do so?
Yes.
Question put and agreed to.
SECTION 83.
Amendments 147 to 149, inclusive, are related to amendment No. 146 and they may be discussed together, by agreement.
I move amendment No. 146:
In page 49, subsection (1)(c), line 34, after “be” to insert “capable of being”.
This is a technical amendment replacing the word "instituted" with the phrase "capable of being instituted" in subsection 1(c), as the current wording creates scope for argument that there is a doubt that the courts offer an alternative to the board for general dispute resolution proceedings.
Amendment No. 147 inserts in subsection (1) a reference to the new subsection (6) which is being inserted by amendment No. 148. Amendment No. 148 replaces subsection (4) and inserts new subsections (5) and (6). The effect of the amendment is to provide for an appeal to the Circuit Court against the decision of the board not to deal with a dispute and against a change of opinion by the board where it has initially indicated to the parties that it would not accept a dispute referral. The insertion of this appeal mechanism is considered necessary in the context of the implementation of the European Convention on Human Rights. Amendment No. 149 is consequential on amendment No. 148.
With regard to amendment No. 148, which is the meat of this group of amendments, how was the necessity to include provision for an appeal to the Circuit Court drawn to the Minister of State's attention?
The amendment was introduced following legal advice from the Office of the Attorney General and in response to the incorporation into law of the European Convention on Human Rights.
Amendment agreed to.
I move amendment No. 147:
In page 49, subsection (1), line 40, after "not" where it secondly occurs to insert "(subject to subsection (6))".
Amendment agreed to.
I move amendment No. 148:
In page 50, lines 1 to 3, to delete subsection (4) and substitute the following:
"(4) Unless the Board decides that any such submissions establish that the opinion of the Board referred to in subsection (1) was not well founded, the Board shall not, subject to subsection (6), deal with the dispute referred to it; the other party or parties to the dispute shall be notified in writing of a decision made by the Board that that opinion was not well founded and shall be furnished by the Board, on request, with a copy of the foregoing submissions (or, if they were not written submissions, a written summary of them prepared by the Board).
(5) The party who referred the dispute concerned to the Board or, as the case may be, any other party to the dispute may appeal to the Circuit Court against a decision of the Board (made in consequence of the procedures under this section having been employed) not to deal with or, as appropriate, to deal with the dispute.
(6) On the hearing of such an appeal the Circuit Court may, as it thinks fit, allow the appeal and direct the Board to deal with or, as appropriate, not to deal with the dispute concerned or dismiss the appeal; an appeal under this section shall be heard by the judge of the Circuit Court for the circuit in which the tenancy or dwelling is or was situated.".
Amendment agreed to.
Section 83, as amended, agreed to.
SECTION 84.
I move amendment No. 149:
In page 50, lines 11 to 15, to delete subsection (2) and substitute the following:
"(2) Subsection (1) does not apply if——
(a) previously the Board, in consequence of the procedures under section 83 having been employed by it in relation to the dispute, decided that an opinion formed by it (being a like opinion to that subsequently formed by the Tribunal or adjudicator) in relation to the dispute was not well founded, or
(b) a decision of the Board, in consequence of those procedures having been employed by it, in relation to the dispute (being a decision of a like kind to the opinion subsequently formed by the Tribunal or adjudicator) was the subject of an appeal under section 83(5) and the Circuit Court, on that appeal, directed the Board to deal with the dispute.”.
Amendment agreed to.
Question proposed: "That section 84, as amended, stand part of the Bill."
I will introduce a further amendment to section 84 on Report Stage to provide for an appeal to the Circuit Court of a decision by an adjudicator or tribunal not to deal further with a case. The need for the amendment, which has not been yet drafted, is also related to the incorporation into law of the European Convention on Human Rights.
Question put and agreed to.
SECTION 85.
I move amendment No. 150:
In page 50, subsection (1), between lines 18 and 19, to insert the following:
"(a) any purported termination shall not be effected,”.
This section addresses the status of matters pending the determination of a dispute before the board and makes it clear that rent is payable while a dispute is before the board. If the dispute concerns an increase in rent, the rent remains at its current level until the dispute is resolved. What it is not clear, although it is implicit in the section, is that the tenant should remain in situ while the dispute is before the board and no termination should be effected during that period. The purpose of the amendment is to make clear what is implicit in the section, namely, that the status quo with regard to the tenancy should continue.
This section is still being examined by the Office of the Attorney General and I expect to table an amendment on Report Stage.
Does the Minister of State expect the amendment to move in the direction of my amendment or in the opposite direction?
The legality of inserting a provision of this nature is under consideration by the Office of the Attorney General. As I stated, I hope to table an amendment on Report Stage. While it is not possible to state the nature of the amendment, I have noted the Deputy's comments. The amendment will be tabled on the basis of legal considerations.
Will the Minister of State's amendment on Report Stage give effect to my amendment?
While I broadly agree with the Deputy's point, I am not sure from a legal point of view if it will be possible to give effect to his amendment to the extent he seeks. I do not envisage that my amendment will move away from the principle in the Deputy's amendment. The question will be how far we can move towards it.
I will withdraw it until Report Stage.
Amendment, by leave, withdrawn.
Section 85 agreed to.
I thank the Minister of State, his officials, my colleagues and the spectator who put up with us.
Progress reported; Committee to sit again.
The select committee adjourned at 3.35 p.m. until 2 p.m. on Tuesday, 17 February 2004.