SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Wednesday, 1 Mar 2006

Registration of Deeds and Title Bill 2004 [Seanad ]: Committee Stage.

Sections 1 and 2 agreed to.

NEW SECTION.

Mr. Costello

I move amendment No. 1:

In page 5, before section 3, to insert the following new section:

"3.—Part 2 of this Act shall cease to apply to the registration of new deeds as and from the date on which the Act of 1964 is applied by the Minister so as to require compulsory registration of title throughout this State.”.

This is a broad amendment which seeks that Part 2, which is a major part of the Bill, shall cease to apply to the registration of new deeds as and from the date on which the Act of 1964 is applied by the Minister in order to require compulsory registration of title throughout the State. That would be the ultimate solution to the matter. The Minister should initiate moves to ensure that compulsory registration is extended nationwide.

On Second Stage, the Minister indicated that only a small number of counties in the midlands and the west have registration of title and that the registration process in respect of title never took off, despite that fact that it is compulsory that all counties should have it in place. What we are doing here is addressing that in a piecemeal fashion. While this legislation is an improvement on the existing position, if compulsory registration was extended throughout country in a meaningful fashion, with the necessary resources supplied, we could remove Part 2 and thereby put in place a much better system.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

There appears to be a typographical error in the amendment. It refers to Part 2 whereas it should refer to Part 3. Apart from that, the amendment presupposes that the only method by which the registration of ownership of land will be extended is by way of compulsory registration. However, any person can apply in an area where there is not compulsory registration to have their land registered and that frequently happens. Second, the definition of deed in section 31 means that under the Bill any document affecting registered land or in so far as it affects registered land cannot be registered in the Registry of Deeds. As matters stand, therefore, Part 3 does not apply to registered lands.

With regard to the broader question raised by Deputy Costello, with effect from 1 April 2006, Longford, Roscommon and Westmeath — in addition to the pre-existing number — will become compulsorily registerable counties. We have also widened the definition of registerable interests to multiple dwellings, so apartment blocks, etc., can be registered. I accept Deputy Costello's argument that, ideally, we want everything in the Land Registry as soon as possible and that the Registry of Deeds should be eclipsed. However, I cannot just produce a crisis in the Land Registry at this stage. It is carrying out a huge transformation to electronic access, mapping and so forth and, as Deputy Costello pointed out, there would be a resource implication. If I were to simply declare tomorrow that all counties should be compulsorily registerable, I would cause chaos in the short term and stop all the valuable work being done.

I accept the point in principle and the Deputy is signalling it as a policy direction in which I am going. It was 1970 when a county was last made compulsorily registerable. There have been a number of Ministers since then who did not do it but I have done it.

Mr. Costello

The legislation effecting the compulsory registration was passed in 1964. How many counties have been registered in over 40 years? It reflects poorly on the Minister's predecessors.

Mr. McDowell

The answer is three and they have been done on my watch. Three were done originally and three are being made compulsorily registerable now.

Mr. Costello

What were the other three?

Mr. McDowell

Laois, Carlow and Meath. The new counties to be made compulsorily registerable with effect from 1 April are Longford, Roscommon and Westmeath. I have also widened the definition of registerable instruments to cover these multi-accommodation structures.

Mr. Costello

Does the Minister have a multi-annual plan for the remainder?

Mr. McDowell

I imagine that I will introduce general registration in my third or fourth term as Minister.

Mr. Costello

What about the Fianna Fáil support last night?

Mr. O’Connor

We were here.

Amendment, by leave, withdrawn.

SECTION 3.

Chairman

Amendments Nos. 2, 6 and 25 are related. Is it agreed that we discuss them together? Agreed.

Mr. McDowell

I move amendment No. 2:

In page 5, after line 32, to insert the following:

""general rules" means rules under section 47 or under section 126 of the Act of 1964.".

These amendments are intended to improve the layout of the Bill. It involves relocating the definition of general rules from Part 3 to Part 1 and these changes in turn trigger a minor drafting amendment to section 6.

Amendment agreed to.

Mr. McDowell

I move amendment No. 3:

In page 6, to delete lines 1 to 4.

The definition of "functions" is no longer required since the entry into force of the Interpretation Act 2005.

Amendment agreed to.

Section 3, as amended, agreed to.

SECTION 4.

Chairman

Amendments Nos. 4, 5 and 34 are related and may be discussed together.

Mr. McDowell

I move amendment No. 4:

In page 6, subsection (2), line 7, after "to" to insert the following:

"a registering authority and".

These drafting amendments are also intended to improve the layout of the Bill. They involve the addition of a reference to a registering authority in section 4(2) and the deletion of the definition "registering authority" in section 3 of the Registration of Title Act 1964 by way of an amendment to section 49. These changes in turn trigger a consequential drafting amendment to section 4(3) which is set out in amendment No. 34.

Amendment agreed to.

Mr. McDowell

I move amendment No. 5:

In page 6, lines 10 to 13, to delete subsection (3) and substitute the following:

"(3) Accordingly, the words "he", "him" and "his", where referring in that Act or other enactment to a registering authority or the Registrar, Registrar of Titles or Registrar of Deeds, are also deleted and, as appropriate, "it" or "its" inserted.".

Amendment agreed to.

Section 4, as amended, agreed to.

Section 5 agreed to.

SECTION 6.

Mr. McDowell

I move amendment No. 6:

In page 6, lines 23 and 24, to delete all words from and including "or" where it firstly occurs in line 23 down to and including "Act" in line 24 and substitute "and any general rules".

Amendment agreed to.

Section 6, as amended, agreed to.

Sections 7 to 9, inclusive, agreed to.

SECTION 10.

Chairman

Amendments Nos. 7, 23, 31, 39, 40 and 48 are related and may be discussed together.

Mr. G. Murphy

I move amendment No. 7:

In page 7, subsection (1)(b), line 25, after “of” where it secondly occurs to insert “all”.

The Minister already dealt with this issue. It had the same objective as Deputy Costello's amendment, to ensure, in the long term, that all lands would be properly registered. I accept the Minister's reply that it cannot all be done at the same time.

Mr. McDowell

I largely covered the matter in reply to Deputy Costello. At present, however, leases with a less than 21 years unexpired portion are not registerable. It would be desirable, if there is such a demand, to move towards a situation where leases of less than 21 years could be registered in the Land Registry. For that purpose I propose to change the 21-year period in the definition of deed in section 31 to allow for lesser periods.

Amendment, by leave, withdrawn.

Mr. G. Murphy

I move amendment No. 8:

In page 7, subsection (1), between lines 39 and 40, to insert the following:

"(g) to provide easy access to the Registry of Deeds, as set out in Part 3 of this Act, for members of the public and the legal professions alike, and to put in place such facilities, or to remain open such hours, as the Authority shall determine, for the provision of that access.”.

The purpose of this amendment is ensure greater access and more speedy transactions. It would ensure that the public and people dealing with the transfer of deeds would have access at suitable times.

Mr. McDowell

I sympathise with the Deputy's point that there should be maximum reasonable access to the public registries. However, it will be a matter for the authority in an administrative decision to decide the opening hours. I will convey the Deputy's views to the authority when it is established. Primary legislation is not necessary to provide for the opening hours.

Mr. G. Murphy

All I wanted was that this sentiment would be conveyed.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 9 and 20 are related and may be discussed together.

Mr. McDowell

I move amendment No. 9:

In page 8, lines 1 to 6, to delete subsections (4) and (5).

This is a pair of drafting amendments designed to improve presentation. They involve the relocation of subsections (4) and (5) of section 10, which deal with the performance of authority functions by staff members, from that section to section 25 which deals with the staff of the authority.

Amendment agreed to.

Section 10, as amended, agreed to.

SECTION 11.

Chairman

Amendments Nos. 10, 11, 51 and 52 are cognate and may be discussed together.

Mr. G. Murphy

I move amendment No. 10:

In page 8, subsection (5)(a), line 36, after “barrister” to insert “of at least five years standing”.

It is fairly standard practice that some experience would be needed to do this job. The amendment suggests that a provision for five years' standing be included.

Mr. McDowell

I hear what the Deputy is saying but at the moment the nominees both of the Bar Council and the Law Society have the experience and expertise required to contribute to the work of the authority. Introducing the five years' standing provision is unnecessary in my view. I ask the Deputy to accept that those societies do not put neophytes on their staff.

Chairman

The Bar Council is perfect in every way.

Mr. G. Murphy

We appreciate that.

Mr. Costello

He is an authority on the Bar.

Amendment, by leave, withdrawn.

Amendment No. 11 not moved.

Mr. G. Murphy

I move amendment No. 12:

In page 9, lines 15 and 16, to delete subsection (8).

This amendment would remove the ceiling of two terms that would apply to members of the authority. I do not see any valid reason a person should be restricted from serving on the authority for a given period. It should be noted that the longer a person serves, the more experience they will accumulate. I feel that provision is unnecessary.

Mr. McDowell

I will consider this amendment between now and Report Stage. The idea was to ensure that the authority did not become dead wood because people would be reappointed as a matter of course, and that there would be a constant renewal of persons on it. I take the point that it might be somewhat absurd not to reappoint someone who was brilliant.

Mr. G. Murphy

There should be some flexibility in it.

Mr. McDowell

I will look at the matter between now and Report Stage.

Mr. G. Murphy

I thank the Minister.

Amendment, by leave, withdrawn.

Mr. Costello

I move amendment No. 13:

In page 9, between lines 39 and 40, to insert the following subsection:

"(14) Without prejudice to subsection (12), a cesser under subsection (13)(a) or (c) by virtue of an order of a court shall not operate until the ordinary time for appeal has expired, or until the final determination of any appeal lodged during such time, whichever last occurs.”.

This amendment seeks to alter the membership of the authority so that if somebody is guilty of misbehaviour in their position or becomes bankrupt, they can be removed by the Minister. The legislation provides for automatic disqualification but there should be scope for appeal so the removal would not take place pending the outcome of the appeal mechanism. It is the type of natural justice clause that one would expect in such legislation.

Chairman

I thought the Labour Party would be more for summary justice when it comes to appointments to boards and that type of thing.

Mr. Costello

No. We are very much for gender equity on boards but not summary justice. Due process is important.

Mr. McDowell

We are dealing here with people who are sentenced to imprisonment on conviction on indictment. The idea that somebody would be in Mountjoy Prison while appealing for 18 months to the Court of Criminal Appeal and would be eligible to serve on the Property Registration Authority is an unacceptable outcome. I accept the possibility that somebody could get out on appeal but, if so, it could take months and years. As regards the idea that, in those circumstances, somebody would not be able effectively to participate in the affairs of the authority, it could give rise to public scandal if they continued to draw an allowance as a member of the board while in chokey, so to speak. I would therefore prefer to have summary justice, Labour Party style, on this one.

Mr. Costello

There is no reference in the section to somebody actually being in prison, so it is not a question of getting out on appeal.

Mr. McDowell

There is a reference to being sentenced to imprisonment on conviction on indictment. If one was out with a suspended sentence or whatever——

Mr. Costello

One can be adjudicated bankrupt without receiving any sentence.

Mr. McDowell

That is true.

Mr. Costello

If one ceases to be ordinarily resident in the State, it is not a crime.

Mr. McDowell

No.

Mr. Costello

Bankruptcy is not a crime as such. If one makes a composition or arrangement with one's creditors, there is nothing criminal in that either. If one is sentenced to imprisonment on conviction on indictment, which is the one the Minister chose to take alone of the various grounds for misbehaviour, and we must remember that we are talking about misbehaviour because criminal misbehaviour is not mentioned in the legislation, it seems the Minister is hell bent on summary injustice rather than summary justice. I do not know how it operates in the Progressive Democrats Party but having listened to the Minister's speech in Waterford, it seemed like summary justice was intended for Fianna Fáil after the next general election.

Mr. McDowell

To get to the meat of the Deputy's amendment, it is dealing with section 11(13)(a) and (c), which refers to being adjudicated bankrupt or being sentenced to imprisonment on conviction on indictment.

Mr. Costello

If we leave that one out of it, the Minister has lumped in a drastic situation with one that is much less drastic. In other words, he has lumped in a criminal conviction with situations where somebody may be outside the State for whatever reason for a period.

Mr. McDowell

Between now and Report Stage I will examine whether an amended version of the Deputy's amendment, referring to section 11(13)(a) and (c), can be tabled.

Amendment, by leave, withdrawn.

Question proposed: "That section 11 stand part of the Bill."

Chairman

Making a composition or arrangement with creditors can sometimes be done for perfectly legal, acceptable reasons.

Mr. McDowell

This is a standard formula which regards making a composition with one's creditors as a terrible stain on one's character. I sometimes wonder whether all this is——

Mr. Costello

There is nothing wrong with it. It is something one must do under the law if one must respond to the creditor's needs.

Mr. McDowell

When one thinks of people being compromised in public positions, being declared a bankrupt means that one is more independent than just owing somebody a large sum of money. If one owed a builder a large sum of money, one is much more under their thumb than if one is declared to be bankrupt. I will re-examine the matter, however.

Chairman

If one does not comply with the ODCE regulations, that may be a reason for it rather than this type of thing.

Mr. McDowell

Yes.

Mr. Costello

There would be some wrongdoing if one were making an irregular composition.

Mr. McDowell

We will re-examine all that between now and Report Stage.

Mr. Costello

Having perused the section, I note that it does not rule out politicians, including Members of the Oireachtas. Perish the thought that they should be allowed into any body at all, because they are very suspicious people.

Mr. McDowell

It is here somewhere.

Mr. Costello

Surely the Minister has not missed it.

Mr. McDowell

It is in section 13.

Mr. Costello

Yes.

Mr. McDowell

I often think that when the political class gets a hammering in the media for this or that, perhaps we should on some occasion put down a list of things to which we are not entitled or are disqualified from being as a result of being Members of this House. The most tangible example is that when one goes out to RTE everybody else gets paid while we must do it for nothing.

Mr. Costello

They are all signing their chits and getting paid.

Mr. McDowell

Exactly.

Mr. Costello

We could have a discussion on that. It is a valid point. As a public representative, one is expected to do everything for free whereas members of the media, who are already well paid and who have a salary, have an opportunity to put forward their media's point of view, name their media in the process and get paid for doing that.

Chairman

This is an authority——

Mr. Costello

We could have an interesting discussion on this.

Chairman

We could.

Question put and agreed to.

Sections 12 to 14, inclusive, agreed to.

SECTION 15.

Mr. Costello

I move amendment No. 14:

In page 12, between lines 5 and 6, to insert the following subsection:

"(2) The Freedom of Information Act 1997 shall apply to the Authority.".

My amendment proposes that the Freedom of Information Act 1997 shall apply to the authority. The Bill already states that unless otherwise provided by law, a person shall not, without the consent of the authority, disclose any confidential information obtaining while performing or as a result of having performed duties as a member of the authority, advisory committee or as a consultant or an advisory appointment by the authority. There is already a gagging order on any member of the authority so why should freedom of information legislation not apply to the authority if somebody is looking for bona fide information on the outcome of the authority's deliberations? Confidentiality within the body is provided for so freedom of information should be provided for in the Bill.

Chairman

What about Deputy Costello's party leader's proposed legislation on whistleblowers? Does he believe this should be included in that?

Mr. Costello

We included protection for whistleblowers in the Garda Síochána Bill but I am not sure if it is relevant here.

Mr. McDowell

In principle, I agree with Deputy Costello's amendment. The only thing which occurs to me is whether it should be phrased in the way he has phrased it or whether I should add it to the Schedule by statute or by the Government making the relevant order. It seems correct that if the Land Registry and the Registry of Deeds are subject to freedom of information legislation, their governing authorities should be as well. I will look at the amendment between now and Report Stage.

Amendment, by leave, withdrawn.

Section 15 agreed to.

Sections 16 to 21, inclusive, agreed to.

SECTION 22.

Chairman

Amendment No. 21 is cognate on amendment No. 15 and both may be discussed together.

Mr. Costello

I move amendment No. 15:

In page 14, subsection (4)(b), line 44, to delete “1996” and substitute “2005”.

Mr. McDowell

I will accept both amendments.

Mr. Costello

I thank the Minister.

Amendment agreed to.

Chairman

Amendments Nos. 16 and 17 are related and both may be discussed together.

Mr. McDowell

I move amendment No. 16:

In page 15, lines 1 to 4, to delete subsection (5) and substitute the following:

"(5) The Chief Executive shall—

(a) implement the policies and decisions of the Authority,

(b) manage and control generally its staff, administration and business, and

(c) perform such other functions as may be conferred on him or her by or under this Act or as may be authorised by the Authority.”.

Section 22(5) and (6) deal with the chief executive's functions. This amendment to subsection (5) is essentially a drafting one which seeks to define more clearly the functions of the chief executive and his or her responsibility to the authority for carrying out those functions. The proposed change to subsection (6) set out in amendment No. 17 is a consequential drafting amendment.

Amendment agreed to.

Mr. McDowell

I move amendment No. 17:

In page 15, subsection (6)(a), lines 6 and 7, to delete “and implementing its functions”.

Amendment agreed to.

Mr. Costello

I move amendment No. 18:

In page 15, subsection (9), line 21, to delete "and Titles" and substitute the following:

"pursuant to the enactments repealed by section 4(1)”.

There is an anomaly in respect of the Registrar of Deeds and Titles. It should read the Registrar of Deeds "pursuant to the enactments repealed by section 4(1)”. It is a technical drafting amendment.

Mr. McDowell

My intention is that the current Registrar of Deeds and Titles will be the first chief executive of the authority. The amendment proposed by the Deputy, which muddles rather than clarifies the situation, is unnecessary and I do not propose to accept it.

Mr. Costello

Is the Minister happy with the accuracy there?

Mr. McDowell

The job is accurately described.

Amendment, by leave, withdrawn.

Section 22, as amended, agreed to.

Section 23 agreed to.

NEW SECTION.

Mr. McDowell

I move amendment No. 19:

In page 15, before section 24, to insert the following new section:

"24.—The Comptroller and Auditor General (Amendment) Act 1993 is amended by inserting the following section after section 18A:

"18B.—This Act applies to the Property Registration Authority as if it were a Department.".".

This new section, which I am introducing at the request of the Department of Finance, amends the Comptroller and Auditor General (Amendment) Act 1993 by inserting a new section 18B into that Act. It provides specifically that the Act will apply to the Property Registration Authority as if it were a Department. This need arises because the authority will have its own Vote as the Land Registry and Registry of Deeds have at present. The chief executive will be the Accounting Officer under section 23 of this Act. A similar provision was inserted into the Garda Síochána Act for the same reason. In other words, it is to make clear that the Comptroller and Auditor General (Amendment) Act fully meshes with the new de facto situation that the chief executive of the Property Registration Authority will be the Accounting Officer answerable to the Committee of Public Accounts, etc.

Amendment agreed to.

Section 24 agreed to.

SECTION 25.

Mr. McDowell

I move amendment No. 20:

In page 15, between lines 44 and 45, to insert the following subsections:

"(4) The functions of the Authority may be performed on behalf of the Authority by any member or members of its staff who is or are authorised by it to do so.

(5) A member of staff of the Authority who performs any of its functions is presumed in any proceedings to have been authorised by it to do so on its behalf, unless the contrary is shown.".

Amendment agreed to.

Mr. Costello

I move amendment No. 21:

In page 16, subsection (5), line 3, to delete "1996" and substitute "2005".

Amendment agreed to.

Section 25, as amended, agreed to.

Sections 26 to 30, inclusive, agreed to.

SECTION 31.

Chairman

Amendment No. 44 is related to amendment No. 22 and both may be discussed together.

Mr. McDowell

I move amendment No. 22:

In page 18, subsection (1), line 4, to delete "memorial" and substitute "record".

The purpose of this amendment is to substitute the word "record" for the rather archaic word "memorial" which is in use at present. Effectively, when a deed is put into effect, the document put into the various registers is referred to as a memorial. Indeed, in the case of barristers, the document put before the benchers when one applies to become a student of King's Inns is referred to as a memorial, although we will leave King's Inns out of this. Most people would think a memorial was some type of statue in a garden or a park, so we have decided to use the word "record" from now on.

Chairman

King's Inns is in Deputy Costello's constituency.

Mr. Costello

It is replete with legal institutions, including the Four Courts, not that they add much to the totality of wisdom in my constituency. The Minister said the word "memorial" was rather archaic. Is he starting a trend to get rid of archaic words in the legal profession since there are many of them?

Mr. McDowell

After the flak I took in today's newspaper for using Latin in the Dáil yesterday, I do not know what I will do in future. Deputy Jim O'Keeffe traded Latin phrases with me in the Dáil yesterday.

Mr. Costello

It was impressive. They are two legal entities.

Mr. McDowell

The difference being that Deputy Jim O'Keeffe was around when Latin was spoken generally.

Chairman

That is straight to the heart.

Mr. Costello

I thought members could not be named in their absence.

Amendment agreed to.

Mr. McDowell

I move amendment No. 23:

In page 18, subsection (1), to delete lines 12 to 15 and substitute the following:

"(i) any document affecting, or in so far as it affects, registered land, or

(ii) any lease for a term not exceeding 21 years (or such other period as may be prescribed) where actual occupation is in accordance with the lease;".

Amendment agreed to.

Mr. McDowell

I move amendment No. 24:

In page 18, subsection (1), to delete lines 16 and 17.

This is a drafting amendment which removes the definition of "existing" as it is no longer required in Part 3.

Amendment agreed to.

Mr. McDowell

I move amendment No. 25:

In page 18, subsection (1) to delete lines 18 and 19.

Amendment agreed to.

Section 31, as amended, agreed to.

Sections 32 to 34, inclusive, agreed to.

SECTION 35.

Mr. Costello

I move amendment No. 26:

In page 19, subsection (1) line 30, after "form" to insert the following:

"or, at the discretion of the Authority, a form to the like effect".

This is a fairly small matter too. Section 35(1) states: "An application for registration of a deed in the register shall be made in the prescribed form." I suggest that this be made somewhat more flexible by the addition of the following: "or, at the discretion of the Authority, a form to the like effect". It would allow, with the permission of the authority, that a form of words somewhat different from the prescribed form would be acceptable. That might be valuable in the circumstances.

Mr. McDowell

First, this is a form, not merely a letter. All the Bill states is that if one wants to register a deed, one must make an application in a format prescribed. It would only cause trouble if people started using their own forms and applying to the authority stating their letter is as good as its form. It would require such letters to be referred to the authority for the exercise of that discretion. Without being unduly rigid, it is better that people adhere to the rules and fill in the relevant forms.

Mr. Costello

The amendment is set in the context that perhaps the term "prescribed form" may not adequately describe the position. Forms can be fairly blunt instruments and I will find few forms which do not include a short section for further information or comment. The Bill does not seem to give scope for any additional information. One will not produce one measure that suits everything. In those circumstances it would seem that my amendment would leave some scope for the provision of additional information to clarify matters which the form might be too rigidly attempting to cover but for which it may not be adequate.

Chairman

Is there a definition of a prescribed form?

Mr. McDowell

It is prescribed by the general committee, not the authority.

Chairman

With the use of the web, there is also the question of whether that prescribed form can be filled in on-line.

Mr. McDowell

It will be on the web but one must fill in the document.

Chairman

Must one download and print it or can one fill it in on the web and send it electronically?

Mr. McDowell

The idea is that one can apply in the prescribed form via the web but one cannot make up one's own form. The important point made to me is that this application is of considerable importance because it gives one priority. The first application received is the one that counts. It only creates difficulty if one starts allowing people to submit long rambling letters and then allowing them apply to the authority for a licence that the letter should constitute prior application.

I appreciate what Deputy Costello is driving at but sometimes it is better to state one should apply on the prescribed form, which leaves it up to the general committee to devise a format which is flexible for the purpose. One can provide for flexibility within a prescribed form. It is like applying for a driving licence where, rather than write a letter looking for a licence, one goes down to the local authority or whoever is the licensing authority and fills out a prescribed form.

Mr. Costello

This involves the registration of deeds and may not be that simple. If somebody does not fill in the form properly, is it to be taken that the authority will return the form? What will ensure that the prescribed form is filled in correctly and is adequate? All anybody can fill in is whatever is set out in the prescribed form, which of course none of us has seen.

Mr. McDowell

We are discussing unregistered land. One must have some form which makes clear to, first, the registry and, second, members of the public who afterwards need to have access to it, that it was clearly identified and done in a prescribed way and that it was not just a kind of document which was confusing or made up and which serviced some ulterior purpose. All we are doing here is stating that when one wants to apply to register a deed, one does so in a format.

Mr. Costello

I will take the Minister's word for it. The Minister's superior wisdom holds sway again.

Mr. McDowell

I am strongly advised that I should hold my ground.

Amendment, by leave, withdrawn.

Section 35 agreed to.

Sections 36 and 37 agreed to.

SECTION 38.

Mr. McDowell

I move amendment No. 27:

In page 20, subsection (1), line 9, before "always" to insert "to be and".

This is a drafting amendment.

Amendment agreed to.

Mr. Costello

I move amendment No. 28:

In page 20, subsection (2), line 14, after "proceedings" to insert the following:

"or any matter in respect of which proceedings have been instituted prior to the commencement of this section".

Mr. McDowell

I accept the principle of the proposed amendment. The matter will be discussed with the Parliamentary Counsel and either this or some alternative wording will be put forward on Report Stage to achieve the same result.

Chairman

On that basis, will Deputy Costello withdraw the amendment?

Mr. Costello

I will. It seems I get a better result if I do not argue the amendment.

Amendment, by leave, withdrawn.

Section 38, as amended, agreed to.

Sections 39 to 47, inclusive, agreed to.

SECTION 48.

Chairman

Amendments Nos. 29 and 30 are related. We will discuss the two together.

Mr. Costello

I move amendment No. 29:

In page 22, line 6, after "Part" to insert "or section 4”.

Both are drafting amendments.

Mr. McDowell

I am told that neither of them is necessary and that I should not accept them.

Amendment, by leave, withdrawn.

Amendment No. 30 not moved.

Section 48 agreed to.

SECTION 49.

Mr. McDowell

I move amendment No. 31:

In page 22, lines 31 to 35, to delete paragraph (d) and substitute the following:

"(d) by the insertion, in the definition of “leasehold interest” of—

(i) "(or such other number as may be prescribed)" after "twenty-one", and

(ii) "and the right or interest of a person who has barred, under the Statute of Limitations 1957, the right of action of a person entitled to such leasehold interest," after "determinable on a life or lives,",".

Amendment agreed to.

Chairman

Amendments Nos. 32 and 33 are related. We will discuss the two together.

Mr. McDowell

I move amendment No. 32:

In page 22, lines 36 and 37, to delete paragraph (e) and substitute the following:

"(e) by the deletion of the definitions of “the central office”, “the local office”, “the local registrar” and “registering authority”, and”.

This is a drafting amendment which repeals redundant definitions in section 3 of the 1964 Act and amendment No. 33 is a consequential drafting amendment.

Amendment agreed to.

Mr. McDowell

I move amendment No. 33:

In page 23, to delete line 2 and substitute "form;".".

Amendment agreed to.

Mr. McDowell

I move amendment No. 34:

In page 23, to delete lines 3 to 5.

Amendment agreed to.

Section 49, as amended, agreed to.

Sections 50 to 53, inclusive, agreed to.

Chairman

Amendment No. 35 is out of order.

Amendment No. 35 not moved.

Section 54 agreed to.

NEW SECTIONS.

Chairman

Amendments Nos. 36 and 37 are related and will be discussed together.

Mr. McDowell

I move amendment No. 36:

In page 24, before section 55, to insert the following new section.

"55.—The following section is substituted for section 33 (classes of freehold land which may be registered) of the Act of 1964:

"33.—(1) On registration of the ownership of unregistered freehold land, a person may be registered with an absolute title, a qualified title or a possessory title.

(2) An application for registration may be made by such person, and shall be in such form and accompanied by such evidence of title, as may be prescribed.

(3) The application shall be for registration with an absolute title, a qualified title or a possessory title.

(4) The applicant shall be registered as owner with an absolute title where the title is approved by the Authority.

(5) The applicant may be registered as owner with a qualified title where—

(a) it appears to the Authority that the title can be established only for a limited period or only subject to certain reservations, and

(b) the Authority, by an entry in the register, excepts from the effect of registration any right—

(i) arising before a specified date,

(ii) arising under a specified instrument, or

(iii) otherwise particularly described in the register.

(6) The applicant may be registered as owner with a possessory title on giving such evidence of title as may be prescribed.

(7) If, on an application for registration under this section, the Authority is not satisfied that the grant of the title applied for would be warranted or appropriate, it may, subject to subsection (8), register the applicant as owner with such one of the other titles provided for in this section as it considers would be warranted or appropriate.

(8) Where registration of ownership is not compulsory, the Authority may not—

(a) on an application for registration with an absolute title, register the applicant as owner with a qualified title without the applicant’s consent, or

(b) on an application for registration with a title other than a possessory title, register the applicant as owner with a possessory title without such consent.”.”.

One of the primary functions of the new authority will be to promote and extend the registration of ownership of land. The Department is engaged in extensive consultations with the Land Registry, the Law Society and the Irish Mortgage Council on practical means of achieving this objective. One of the suggestions that arose from these discussions relates to the categories of title that can be applied for under the 1964 Act. Under the latter, the categories of title that may be registered are freehold land, an absolute title, a qualified title or a possessory title, leasehold interests, an absolute title, a good leasehold title, a qualified title or a possessory title.

In cases where an application of an absolute or good leasehold title is submitted but where the title can only be established by a limited period or with certain reservations, the 1964 Act allows the Registrar of Titles to grant a qualified title. However, the Act does not currently permit applications for qualified titles. In other words, it can happen but it is a by-product of another function rather than being itself a mechanism.

As regards the status of qualified title, sections 39 and 47 in regard to leasehold provide that the registration of an owner of land with a qualified title shall have the same effect as registration with an absolute title, save that registration with a qualified title shall not affect or prejudice the enforcement of any right appearing by the register to be accepted.

Arising from discussions with the relevant bodies, I propose to amend the 1964 Act to allow applications for qualified title with a view to removing the stigma currently associated with qualified status. In effect, an applicant will be free to apply for registration of a title subject to certain reservations that will be recorded on the relevant folio in the Land Registry. The entry on the register will accept from the registration any right arising before a specified date, under a specified instrument or otherwise particularly described in the register. This change will apply to both section 33 of the 1964 Act, which deals with freehold, and section 40 of the 1964 Act dealing with leasehold interests. While these changes are relatively modest in scope, in the interest of clarity, I have decided to replace sections 33 and 40 in their entirety rather than amend them in a less than satisfactory piecemeal fashion.

Amendment agreed to.

Mr. McDowell

I move amendment No. 37:

In page 24, before section 55, to insert the following new section:

"55.—The following section is substituted for section 40 (classes of title which may be registered) of the Act of 1964:

"40.—(1) On registration of the ownership of an unregistered leasehold interest, a person may be registered with an absolute title, a good leasehold title, a qualified title or a possessory title.

(2) An application for registration may be made by such person, and shall be in such form and accompanied by such evidence of title, as may be prescribed.

(3) The application shall be for registration with an absolute title, a good leasehold title, a qualified title or a possessory title.

(4) The applicant shall be registered as owner with an absolute title where the title to the leasehold interest, the freehold estate and any intermediate leasehold interest is approved by the Authority.

(5) The applicant shall be registered as owner with a good leasehold title where the title to the leasehold interest is approved by the Authority.

(6) the applicant may be registered as owner with a qualified title where—

(a) it appears to the Authority that the title, either of the lessor to the reversion or of the lessee to the leasehold interest, can be established only for a limited period or only subject to certain reservations, and

(b) the Authority, by an entry in the register, excepts from the effect of registration any right—

(i) arising before a specified date,

(ii) arising under a specified instrument, or

(iii) otherwise particularly described in the register.

(7) The applicant may be registered as owner with a possessory title on giving such evidence of title as may be prescribed.

(8) If, on an application for registration under this section, the Authority is not satisfied that the grant of the title applied for would be warranted or appropriate, it may, subject to subsection (9), register the applicant as owner with such one of the other titles provided for in this section as it considers would be warranted or appropriate.

(9) Where registration of ownership of title is not compulsory, the Authority may not—

(a) on an application for registration with an absolute title or a good leasehold title, register the applicant as owner with a qualified title without the applicant’s consent, or

(b) on an application for registration with a title other than a possessory title, register the applicant as owner with a possessory title without such consent.”.”.

Amendment agreed to.

Mr. McDowell

I move amendment No. 38:

In page 24, before section 55, to insert the following new section:

"55.—Section 51 (transfer of registered land) of the Act of 1964 is amended by the insertion of the following subsection after subsection (2):

"(2A) In this section "transfer" includes "lease", and cognate words shall be construed accordingly.".".

In the case of a registered freehold property, any lease of the property or parts of it is deemed under existing law to confer an unregistered leasehold interest. Before such an interest can be registered, it is necessary for the lessee to apply for first registration, which can be a cumbersome, time-consuming and costly process. I, therefore, propose to amend section 51 of the 1964 Act to make it easier to register long-term leases in registered freehold properties.

This issue has become more acute in recent times arising from the proliferation of multi-unit apartment blocks. For example, a development may comprise 100 units held under long-term leases. Under existing legislation, each of these leases is deemed to be an unregistered leasehold interest and before any can be registered, it will be necessary for each individual lessee to apply for first registration. In effect, 100 applications for first registration of the leasehold interest will be required in order to register the entire development. The current law should be amended to provide that a leasehold folio may be opened without the need for an application for first registration in such cases. In short, I am proposing that the 1964 Act be amended to provide that where a registered owner of land leases the land or any part of it, the lessee shall be registered as owner of the leasehold interest in that land. This can be done by means of this amendment to section 51 which provides that the word "transfer" shall include a lease.

It could have a substantial impact because, at present, if everyone in an apartment complex applies to have their leasehold interest registered, they are all dealt with as if they are separate, distinct and first registrations of that leasehold interest. It means that a cumbersome and expensive process is triggered in each case. The amendment will effectively allow it to be done in bulk and will result in a less cumbersome process for each of the apartment dwellers.

Chairman

Is there more work involved for a solicitor dealing with an apartment rather than a house?

Mr. McDowell

It means that a solicitor might in these circumstances tell a client not to bother with registering the leasehold interest because it would not be worthwhile and one could be dealing with the Land Registry for months or years. It is pro-registration, which should make the title of leaseholds much more simple to deal with in future.

Chairman

Could the onus be placed on the original developer in this regard?

Mr. McDowell

There will be an incentive in that regard but whether we can force them to do so is a different matter. I am not sure whether this would be a shrewd way to proceed. However, I will consider between now and Report Stage whether an onus can be placed on people to do so.

Mr. Costello

It would streamline the process and reduce costs.

Mr. McDowell

I could make an order to bring it about under section 24 of the 1964 Act, which I will consider.

Amendment agreed to.

Mr. McDowell

I move amendment No. 39:

In page 24, before section 55, to insert the following new section:

"55.—Section 69 (burdens which may be registered as affecting registered land) of the Act of 1964 is amended in subsection (1)(g) by the insertion of “(or such other period as may be prescribed)” after “twenty-one years”.”.

Amendment agreed to.

Mr. McDowell

I move amendment No. 40:

In page 24, before section 55, to insert the following new section:

"55.—Section 72 (burdens affecting land without registration) of the Act of 1964 is amended in subsection (1)(i) by the insertion of "(or such other period as may be prescribed)" after "twenty-one years".".

Amendment agreed to.

Sections 55 and 56 agreed to.

NEW SECTION.

Mr. McDowell

I move amendment No. 41:

In page 25, before section 57, to insert the following new section:

"57.—The following section is substituted for section 90 (powers of person entitled to be registered as owner of land or charge) of the Act of 1964:

"90.—(1) This section applies to a person—

(a) on whom the right to be registered as owner of registered land or a registered charge has devolved by reason of the death of the owner or the defeasance of the owner’s estate or interest or by reason of a transfer made in accordance with this Act or under a lease, and

(b) who, before being registered as such owner, wishes to take any of the following actions in relation to the land or charge:

(i) in the case of registered land—

(I) transferring or charging it or any part of it,

(II) creating a lien by deposit of the land certificate,

(III) granting a lease,

(IV) creating an easement or a profit à prendre, or

(V) where the person is the Minister for Agriculture and Food, exercising any other rights of ownership, including enforcing the right to vacant possession,

or

(ii) in the case of a registered charge—

(I) transferring or charging it, or

(II) creating a lien by deposit of the certificate of charge.

(2) A person to whom this section applies may take any of the actions mentioned in subsection (1) in the like manner and with the same effect as if the person were the registered owner at the date of the action concerned, but subject to any burdens or rights affecting the person’s interest which would have been entered on the register if the person had become the registered owner and subject also to the provisions of this Act with regard to registered dealings for valuable consideration.”.”.

Section 90 of the 1964 Act deals with the powers of a person entitled to be registered as owner of land and/or a charge. Where such a person wishes to transfer or to charge the land or the charge before he or she is registered as owner, he or she may do so subject to any rights or interests affecting his or her interest. One shortcoming in existing law is that a person who is entitled to be registered as owner, having obtained ownership by way of a lease, is not allowed to deal with the property in the same manner as a person who is entitled under a transfer. A this is not appropriate in modern conditions, I am amending the section to allow for this.

In reviewing the section, it also became clear that the wording in the 1964 Act was open to a number of interpretations. In order to remedy that situation, I propose to substitute a revised text for the section for the benefit of interested parties, especially practitioners, in order that they will have one continuous text.

Amendment agreed to.

Section 57 deleted.

NEW SECTION.

Mr. McDowell

I move amendment No. 42:

In page 26, before section 58, to insert the following new section:

"58.—The following section is substituted for section 104 (stamp duties) of the Act of 1964:

"104.—Where, in relation to a document presented for registration, the Authority has reasonable grounds for suspecting that stamp duty, or the correct amount of such duty, has not been paid, the Authority shall not proceed with the registration unless the applicant for registration provides evidence to its satisfaction that stamp duty is not payable or, as the case may be, the correct amount of such duty has been paid.".".

The Land Registry is identified in section 104 of the 1964 Act, which relates to stamp duty as a section which causes difficulty for it in its day-to-day operations. My Department discussed the operation of section 104 with it and with the Revenue Commissioners and agreement has been reached on the revised wording of section 104, which is the subject of this amendment. In future, the Land Registry will not proceed with the registration where it has reasonable grounds for suspecting that the correct amount of stamp duty has not been paid.

Amendment agreed to.

Section 58 agreed to.

NEW SECTIONS.

Mr. McDowell

I move amendment No. 43:

In page 26, before section 59, to insert the following new section:

"59.—The following section is substituted for section 108 (priority given by certificate of official search) of the Act of 1964:

"108.—(1) The Authority, if of opinion that a person has contracted to purchase or take a lease of registered land or to lend money on the security of a charge on it, shall, on application by the person and on notice by the person to the other party to the contract, make an entry in the register in the prescribed form.

(2) An application for registration by such a person in relation to the completion of the contract which is in order and is delivered to the Authority within a period of 21 days (or such longer period as may be prescribed) after the date of the entry ranks in priority before any other application for registration made within that period in respect of the land.

(3) In determining whether to prescribe a longer period than 21 days under subsection (2) and the duration of any such period, the Registration of Deeds and Titles Rules Committee shall have regard to—

(a) changes in the period generally elapsing between applications by persons under subsection (1) and those made by such persons under subsection (2), and

(b) the need for adequate protection of the interests of parties to the contracts concerned.”.”.

This provision arises from the need to ensure that the new property registration authority will be in a position to operate effectively and efficiently from the outset. At present, section 108 of the 1964 Act allows the registrar to make an entry in the register granting priority to an intending purchaser or lender where a solicitor certified that the applicant has entered into a contract to purchase all or part of a registered folio, or is contracted to lend money on security of a charge on the property. The effect is to inhibit all dealings on the folio for a period of 14 days. While it is possible to apply for further inhibitions on the expiry of the 14-day period, the Land Registry considers that the time limit in this section is too inflexible and I am, therefore, proposing that it be extended to 21 days. The time limit in this section is too inflexible. I therefore propose that the period be extended to 21 days. I am also conscious that business and conveyancing practices are changing and I am anxious to introduce some flexibility into the arrangements. Therefore, I am providing that the time period can be changed by means of a general rule. That will allow the rules committee, with the consent of the Minister, to extend the period in line with whatever may turn out in future to be existing conveyancing practice.

Mr. Costello

Is there a need to amend subsection (3)(b) of the amendment? The quotation marks and the dots at the end seem to imply there is an etc. there.

Mr. McDowell

It looks as if it needs to be changed. The first quotation marks are on the outside of the marginal note. I see the same form used throughout the amendments.

Chairman

We will proceed on the basis that it will be checked before Report Stage and if there is a need for it to be changed, it will be done.

Amendment agreed to.

Mr. McDowell

I move amendment No. 44:

In page 26, before section 59, to insert the following new section:

"59.—Section 116 (exemption of land from registration in Registry of Deeds) of the Act of 1964 is amended by the substitution of the following subsection for subsection (2):

"(2) Where the ownership of any estate or interest in land is registered under this Act, the Authority shall cause a record of the registration, in the prescribed form, to be registered in the Registry of Deeds free of any fee or duty.".".

Amendment agreed to.

Mr. McDowell

I move amendment No. 45:

In page 26, before section 59, to insert the following new section:

"59.—Section 119 (penalties for fraud) of the Act of 1964 is amended in subsection (1) by the substitution, for "he shall be guilty of a misdemeanour, and if convicted on indictment shall be liable to imprisonment for any term not exceeding two years, or to a fine not exceeding five hundred pounds", of "the person shall be guilty of an offence and liable—

(i) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding twelve months or both, and

(ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding five years or both.".".

This amendment updates the penalties for offences under the 1964 Act by bringing them into line with the penalties set out in section 40 of this Bill in relation to the Registry of Deeds. On summary conviction the penalty will be €3,000 or 12 months in prison or a conviction on indictment to a fine or term of imprisonment not exceeding five years. The amendment also makes the offence arrestable and applies the provisions of the Criminal Justice Act 1984.

Amendment agreed to.

Sections 59 to 61, inclusive, agreed to.

SECTION 62.

Chairman

Amendments Nos. 46 and 47 are related and will be discussed together.

Mr. McDowell

I move amendment No. 46:

In page 27, to delete lines 9 to 11 and substitute the following:

"(a) by the substitution of the following subsections for subsections(1) and (2):”.

These are technical drafting amendments.

Amendment agreed to.

Mr. McDowell

I move amendment No. 47:

In page 28, line 7, to delete "prescribed."," and substitute "prescribed.".".

Amendment agreed to.

Mr. McDowell

I move amendment No. 48:

In page 28, between lines 7 and 8, to insert the following:

"(2) The Committee, in determining for the purposes of this Act—

(a) whether the duration of a lease or of the unexpired portion of a lease, as specified in the Act, should be altered, and

(b) if so, the extent of the alteration to be prescribed by it,

shall have regard to the Authority's function to promote and extend registration of ownership of land and to the resources available to the Authority for performing that function.".

Amendment agreed to.

Section 62, as amended, agreed to.

NEW SECTION.

Mr. McDowell

I move amendment No. 49:

In page 28, before section 63, but in Part 5, to insert the following new section:

"63.—(1) The Authority shall cease to issue land certificates and certificates of charge under the Act of 1964, and accordingly—

(a) the definition of “land certificate” in section 3(1) of that Act, together with sections 28, 32(2), 32(3), 51(3), 51(4), 62(5) and 64(3), are repealed,

(b) section 105 (certificates) of that Act applies only in relation to land certificates and certificates of charge issued before the commencement of subsection (1) and not already cancelled.

(2) Subject to subsection (3), land certificates and certificates of charge issued before the commencement of subsection (1) and not already cancelled cease to have any force or effect on the expiration of the period of 3 years after the commencement of this section.

(3) The following provisions have effect during the period referred to in subsection (2):

(a) the Authority shall cause adequate notice to be published of the coming into operation of subsection (2) and of its implications for persons to whom land certificates or certificates of charge have been issued and for any others who may be affected, including persons holding a lien on registered land or a registered charge through deposit or possession of those certificates;

(b) a holder of such a lien may apply to the Authority for registration of the lien in such manner as the Authority may determine;

(c) the application shall be on notice by the applicant to the registered owner of the land or charge and be accompanied by the certificate concerned;

(d) the lien is deemed for the purposes of section 69 of the 1964 Act to be a burden which may be registered as affecting registered land;

(e) the Authority shall register the lien without charging any fee or duty for doing so.

(4) Notwithstanding subsection (2), where the holder of a lien has suffered loss by reason of not having applied to the Authority during the period referred to in subsection (3) for registration of the lien as a burden affecting the registered land, the holder may apply to the court for compensation for the loss, on notice to the Minister for Finance.

(5) On the application the court may, if satisfied—

(a) that the applicant is the holder of the lien concerned,

(b) that the holder was prevented from applying to the Authority under subsection (3) by reason of being under a disability (within the meaning of section 48 of the Statute of Limitations Act 1957) or of other exceptional circumstances and has thereby incurred financial loss,

(c) that the remedies available for the recovery of the loss have been exhausted, and

(d) that it would be manifestly unjust for the holder to suffer the loss,

declare that the holder is entitled to compensation for the loss and determine the amount of the loss.

(6) Compensation to which a person is entitled pursuant to the declaration of the court is payable by the Minister for Finance out of moneys provided by the Oireachtas.

(7) The Minister for Finance shall have the same right to recover the amount of the compensation from any person who caused or derived advantage from the loss as the holder of the lien would have had if the loss were an injury caused to him or her by that person.

(8) Interest is payable on any amount recoverable by the Minister for Finance in accordance with subsection (7) from the date of payment of the compensation at the rate for the time being standing specified under section 26 of the Debtors (Ireland) Act 1840.

(9) In this section--

"holder", in relation to a lien, includes any person deriving title from the holder of the lien;

"published" means published by way of advertisement both in the national daily newspapers and in broadcasts for reception by the general public, whether the broadcasts are actually received or not.".

This is an important amendment to the Bill. It responds to concerns expressed in earlier debates about the delays in costs associated with the registration of land. Under current legislation, if a registered owner of land wishes to deal with it in any way, any land certificate issued in respect of the land must be presented to the Land Registry before any further transaction can be registered. In a similar way, the legislation requires that the Land Registry issue a certificate of charge on a mortgage of registered land and that this certificate of charge be produced on any further dealings.

In considering further reforms of land law and conveyancing law, it has become clear that the land certificate and certificate of charge system is incompatible with any proper form of electronic conveyancing. I am convinced that such a system cannot continue if we want to have a fully electronic conveyancing system with all the benefits that will bring to practitioners and consumers. My Department has discussed the matter with the Land Registry, the Law Society and the Irish Mortgage Council representing lenders and there is a general consensus that land certificates and certificates of charge should be phased out. There was a usage of land certificates, in particular, as a means of creating equitable mortgages by depositing them. This amendment means that will be wiped out. The physical giving of the document to somebody else as security will no longer act as a form of estoppel on the land. The United Kingdom has already done this.

The main reason current legislation requires the submission of any existing land certificate is that it may have been lodged with a financial institution as security for a loan. That is generally referred to as an equitable mortgage. While such informal mortgages may have become less common, the fact that any outstanding land certificate must be presented before any transaction can be registered in respect of the property gives rise to a significant administrative burden for the Land Registry. Moreover, the loss and misplacement of certificates issued many decades ago causes long delays and adds to the cost of conveyancing.

The new section provides for the phasing out of land certificates over a three-year period. It specifically provides that land certificates and certificates of charge issued before the commencement of subsection (1) which are not already cancelled will cease to have effect or force three years after the commencement of subsection (1). I am providing for the conversion of any outstanding equitable mortgages into legal charges during that period. Subsection (3) contains details of this conversion process. It also requires the new authority to publicise the new provisions and to provide information on their implications for holders of land certificates or certificates of charge.

Despite the provision that adequate notice be given of these changes, it is possible that some people may not become aware of them or their implications and suffer financial loss as a result. That might arise by reason of a person being under a disability. In practice, this is unlikely to arise except possibly in the case of a private transaction between two individuals. For this reason I have provided in subsections (4) to (8), inclusive, for a compensation mechanism. In the event of it being used, the holder of the land certificate or certificate of charge could apply to the court for compensation for the claim of financial loss. Under the very stringent conditions set out in subsection (5), the court could declare that the holder was entitled to compensation and determine the amount.

I acknowledge that the changes contained in this section are far-reaching and, some might say, radical. However, such measures are justified and necessary if we are to move to electronic conveyancing. We can take the sensible point of view that the Land Registry register was always the evidence of ownership. The certificate was issued to people to provide them with some evidence to show to people to whom one wanted to sell the property that one owned the land. We can imagine what the certificate meant in those days. It meant there was a register in Dublin that could be searched, but the person with the certificate could show he or she owned the farm or whatever. This is no longer necessary because electronic access to the register will be simpler. The problem is that if the status given to the certificate is maintained, electronic transactions will become almost meaningless. One will be able to exchange land instantly on-line but if one has lost the land certificate, one might as well be back in the pony and cart age.

Chairman

The current system is crazy. There are so many land certificates lost and people are searching for them but cannot find them.

Mr. McDowell

I regret, and I must apologise to the Law Society for this, that the society will lose significant advertising revenue in its gazette, which is a wonderful publication. There are sometimes pages of advertisements looking for these certificates.

Mr. Costello

Is it correct that the Minister is not really abolishing land certification but installing it in a different fashion?

Mr. McDowell

Certificates will not be issued and their significance will disappear over the period provided for in the section.

Mr. Costello

Is there an equivalent process of certification on-line?

Mr. McDowell

The folio and the register will be the record.

Mr. Costello

They will be accessible in a different fashion rather than a paper certificate.

Mr. McDowell

Yes.

Mr. Costello

Therefore, it is not so much an abolition as——

Mr. McDowell

It is abolition of the certificate on the basis that it is a redundant item.

Mr. Costello

It is not an abolition of the process of certification, just a widening of it.

Mr. McDowell

It will get rid of that method of equitable mortgage.

Chairman

It gets rid of the document.

Mr. Costello

People can produce their own piece of paper. They can get a print-out.

Chairman

Representatives of the Law Reform Commission came before the committee recently to deal with the question of land transfer by electronic means. It emerged that problems arise regard to liabilities that might exist on properties in respect of electricity, telephones, etc.

Mr. McDowell

This is the only occasion when the Minister has moved before the Law Reform Commission, which is about to make such a recommendation.

Chairman

The commission may have already made such a recommendation in its book.

Mr. Costello

It is being done without legislation.

Chairman

It is an excellent and innovative step that is much needed.

Mr. Costello

Once the certificates are abolished and the stamped legal form no longer available, it will be accessible from a website. Is this not leaving it wide open to fraud by means of downloading? Anyone could have access to a title or deed.

Mr. McDowell

Such an argument could be made. At present, however, if an individual wished to persuade somebody that he or she owned a parcel of land and was engaging in fraud, they would produce a photocopy of a land certificate and say that they could not find the original. Few enough people would hand over money without consulting the——

Chairman

The purchaser's solicitor would consult the Land Registry.

Mr. McDowell

It will spell the end of any arrangement whereby one person will hand over to somebody else a piece of paper and have it in the back of their mind that this prevents that person from disposing of the property to a third party.

Mr. Costello

If a paper looks legal and professional, people will, as in the case of Internet spam, believe it.

Mr. McDowell

I am not sure I agree with Deputy Costello but there is the beneficial effect of the common good of allowing for full e-conveyancing without this piece of paper being produced in support of it.

Amendment agreed to.

SECTION 63.

Mr. Costello

I move amendment No. 50:

In page 28, subsection (2), between lines 20 and 21, to insert the following:

"(d) the Chief Executive Officer of the Courts Service or his or her nominee,”.

This amendment refers to the registration of deeds and title rules committee. This body will draw up the prescribed form to which we referred earlier. My amendment proposes that two extra persons be added to the committee, which will already include a judge of the High Court, the chairman and chief executive of the authority, the CEO of the Courts Service, or his or her nominee, and the person nominated by the Minister. This is being helpful to the Minister because he will have his own personal representative on the body to ensure that its deliberations are closely monitored. The amendment is eminently reasonable.

Mr. McDowell

It may sound very reasonable and beneficial. However, I do not accept that there is an argument for the Courts Service to be involved in this body. I am prepared to rely on my right to refuse to agree to changes rather than obliging a civil servant of my Department to attend all these meetings and consider the debate that takes place on these matters for hours on end. The chief executive of the authority is already a member of the committee. I thank the Deputy for his generosity but I graciously decline it.

Mr. Costello

Is the chief executive of the Courts Service not also sitting on the committee?

Mr. McDowell

I do not envisage a role for the Courts Service in this matter. We see no merit in the proposal.

Mr. Costello

Is the chief executive of the Courts Service not a member of the rule-making committee under the Courts Acts?

Mr. McDowell

Of the courts, perhaps, but these are not really court rules.

Chairman

It will be hived off to the private sector shortly.

Mr. McDowell

We will be obliged to wait until Deputy Costello is appointed as a Minister.

Mr. Costello

The Chairman should not put ideas into the Minister's mind. Does the Minister not wish to have a personal nominee?

Mr. McDowell

No, I do not think so.

Mr. Costello

In the unlikely event that he will not be Minister forever?

Mr. McDowell

I am not tempted but I will reconsider it in my second or third term.

Mr. Costello

He might amend it then.

Amendment, by leave, withdrawn.

Amendments Nos. 51 to 53, inclusive, not moved.

Section 63 agreed to.

SECTION 64.

Mr. Costello

I move amendment No. 54:

In page 29, subsection (2), line 9, after "made" to insert "in the said Acts or".

This amendment would allow for the rules committee to make recommendations for changes to the law rather than simply to the procedures. I ask the Minister to consider taking this amendment on board.

Mr. McDowell

This is an implementation body. Deputy Costello's amendment would drive it towards being a policy-making body. I can see that in those circumstances his earlier proposal about Minister's nominees and the like, might be relevant. However, it is preferred to confine it to a technical implementation role. In those circumstances, I do not wish to widen its scope.

Amendment, by leave, withdrawn.

Section 64 agreed to.

NEW SECTIONS.

Chairman

Amendments Nos. 55, 56, 61 and 62 are related and may be discussed together.

Mr. McDowell

I move amendment No. 55:

In page 29, before the Schedule, to insert the following new section:

"65.—(1) Section 16 (restrictions on right to acquire fee simple) of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 is amended—

(a) in subsection (2)(e), by the deletion of “Act.” and the insertion of “Act, or”,

(b) by the insertion of the following paragraph after subsection (2)(e):

"(f) subject to subsection (3), a sublease of land granted by a lessee who is not a person to whom this Part applies—

(i) on or after 27 February 2006, or

(ii) before that date, unless before that date—

(I) a notice of intention to acquire the fee simple in the land was served by the sublessee in accordance with section 4 of the Act of 1967, or

(II) an application was made by the sublessee to the Registrar of Titles under Part III of this Act.",

and

(c) by the addition of the following subsections:

"(3) Subsection (2)(f) does not apply where—

(a) at the date on which the sublease is granted, the sole reason why the lessee is not a person to whom this Part applies is that a covenant by the lessee to erect permanent buildings on the land has not been substantially complied with, and

(b) after that date, the covenant is substantially complied with by the sublesssee.

(4) In this section, "sublessee" includes the personal representatives and successors in title of a sublessee.".".

These two amendments to the Landlord and Tenant (Ground Rents) (No.2) Act 1978 are designed to deal with problems that have arisen under current ground rents legislation.

Section 8 of the 1978 Act contains the general right to acquire the fee simple. Section 9 provides that this general right to acquire the fee simple applied to persons holding the land under a lease provided the conditions set out in that section and one of seven alternative conditions in section 10, were met. The seven alternative conditions in section 10 covered a broad range of situations. Section 16 of the Act contains very specific restrictions where the right to acquire the fee simple would not apply.

My amendment to section 16 proposes to add a new category to the restricted list. It will prohibit the acquisition of the fee simple, that is, the purchase of the ground rent, in the case of a sublease of land granted by a lessee who is not eligible to acquire the fee simple. This will ensure that an eligible sublease cannot in future be carved out of a non-eligible lease in a manner that was neither intended nor foreseen by the 1978 Act.

By way of explanation, let us consider a situation where a fee simple owner grants a long lease to a lessee. A loophole had transpired in recent times whereby the lessee had no rights to acquire the fee simple. Clever lawyers, being what they are, examined this situation and argued that if a lessee were to create a lease — even though his own lease does not comply with sections 9 and 10 to allow him acquire the fee simple — and artificially create a lease which was so structured as to comply with sections 9 and 10 completely, that person would be able to acquire both the lessee's interest and the ground landlord's interest. It meant that people were in a position to create a new company, grant a lease on terms more favourable to that company than they had received from the landlord who was the fee simple owner and, by doing so, confer on the new company the right to expropriate everybody above them in the chain of title.

This matter first came to light in the context of IDA Ireland and leases in ports. We were looking around generally and realised that it was neither reasonable to have it in existence nor fair on ground landlords who were being divested of their interest in land by a wholly artificial transaction over which they had no control.

Only one exception is being allowed and that arises in a case where the only reason a lessee is not eligible to acquire the fee simple is that a covenant entered into by that lessee to erect permanent buildings on the land has not been substantially complied with at the date on which the sub-lease is granted but the covenant is substantially complied with the sub-lessee after that date. This exception to the general prohibition was recommended to us by the Law Reform Commission.

The second amendment amends section 28 of the same Act. It stems from a recommendation of the Law Reform Commission. The commission has identified an anomaly within existing law whereby, on acquisition of the fee simple, not only covenants within the lease under which the land was held save for those specified in section 28(2) but also collateral covenants are extinguished. The new text of section 1 contained in the second amendment makes it clear that only covenants in the lease under which the person held the land, save for those specified in section 28(2) will be extinguished on acquisition of the fee simple. It also provides that new covenants may be entered into with the agreement of the person acquiring the fee simple.

I propose that both of these amendments will take effect from 27 February, which is the date on which I circulated the amendments and issued a press release indicating my intention to deal with the problems that have arisen and explaining the general scope of the amendments. This is vital because if it is not made retrospective to 27 February, the period between the discussion of the Bill on Committee Stage and its ultimate signature into law by the President and commencement, would be a period in which there might be a deluge of this artificial activity with a view to expropriating fee simple owners unfairly. This is why Monday of this week was selected as the day before which all these transactions needed to be carried out.

Mr. Costello

Those amendments seem to be eminently useful. Is it possible to introduce retrospective legal arrangements with dates stated in the legislation that are prior to the passage of the legislation? What is the status of those covenants and subleases that are already before the courts for interpretation?

Mr. McDowell

Under the Sinn Féin funds case, I cannot attempt to pre-empt or affect the outcome of an argument going on before the courts. I am conscious of this matter and that is the advice of the Attorney General to me. When trying to tackle what might loosely be described as an abuse of a loophole in the law, if we draw attention to the loophole and spend months dealing with it, we would invite further injustice on the people whose proprietary interests are being unfairly affected by the existence of that loophole. The Attorney General advised me that there is nothing wrong, provided we made it public, which we did. There has been considerable newspaper publicity. It will not be possible for people to say after that date that they innocently and in good faith engaged in this artificial transaction to their detriment. The purpose is to have a definite cut-off point, which does not produce a deluge of abuse of the loophole we are trying to close. Nobody can claim to be prejudiced. This is effectively the same as if yesterday or today we introduced emergency legislation to close the loophole and ran through all Stages in both Houses. It is no more fair or unfair to a person who wants to abuse the current loophole.

Mr. Costello

Does the Minister have any idea of the extent of the practice? I agree with him that it is an abuse of the legal system to create a sub-lease and then seek to acquire a title in an artificial fashion. It seems to take place mainly with public properties, based on the cases that have come to our attention. Are these cases common or has the problem only arisen recently? Do we have any idea of the extent of the practice?

Mr. McDowell

The answer is no. We know when public interests are affected and it hits the public purse. We have no idea how many of these transactions have taken place in the private sector. It is possible that many of these deeds are sitting in drawers throughout Dublin. Under the new stamp duty legislation people are obliged to register their deeds and pay stamp duty within a certain period of time. Someone who might announce that such an item was lying in the bottom drawer for some time would have much explaining to do as to why nothing was done with it before the cut-off date.

Mr. G. Murphy

Did the emergency legislation introduced cover all publicly owned property?

Mr. McDowell

Another condition is introduced by the amendment as follows:

(ii) before that date, unless before that date—

(I) a notice of intention to acquire the fee simple in the land was served by the sublessee in accordance with section 4 of the Act of 1967,

This means that the ground landlord would be under notice of the existence of such an arrangement. Granting the sub-lease on its own would not trigger entitlement. Notice would also need to be served on the ground landlord before that date.

Mr. Costello

Where is that provision located?

Mr. McDowell

It is in amendment No. 55, which inserts a new section 65 into the 1978 Act. I had forgotten about this provision when I spoke about leases being in bottom drawers. They would need to be in the bottom drawer and notice to acquire the fee simple would also need to have been served on the ground landlord before the relevant date. No shocks or surprises should come out of bottom drawers.

Mr. G. Murphy

Emergency legislation was introduced to prevent it happening solely for public lands, including those owned by IDA Ireland and county council. This amendment is to introduce the same system for private property.

Mr. McDowell

It will apply to public and private lands.

Mr. Costello

It supersedes the other legislation.

Amendment agreed to.

Mr. McDowell

I move amendment No. 56:

In page 29, before the Schedule, to insert the following new section:

"66.—Section 28 (effect of acquisition of fee simple on covenants) of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 is amended by the substitution of the following subsections for subsection (1):

"(1) Subject to subsection (1A), where a person to whom Part II of this Act applies acquires under that Part the fee simple and any intermediate interests in land—

(a) covenants (except any of those specified in subsection (2)) affecting the land in the lease under which the person held the land thereupon cease to have effect, and

(b) no new covenant affecting the land shall be created when the fee simple is being conveyed, except with the person’s agreement.

(1A) Subsection (1) has effect where the fee simple in the land concerned is acquired on or after 27 February 2006, unless before that date—

(i) a notice of intention to acquire the fee simple was served by the person in accordance with section 4 of the Act of 1967, or

(ii) an application was made by the person to the Registrar of Titles under Part III of this Act."."

This amendment has been changed — it no longer contains the words "intermediate interests".

Chairman

To what section does the Minister refer?

Mr. McDowell

I refer to subsection (1A) in the amendment. It now proposes:

Subsection (1) has effect where the fee simple in the land concerned is acquired on or after 27 February 2006, unless before that date—

(i) a notice of intention to acquire the fee simple was served by the person in accordance with section 4 of the Act of 1967, or

(ii) an application was made by the person to the Registrar of Titles under Part III of this Act."."

Mr. Costello

Are we talking about a different amendment? Is the Minister referring to amendment No. 55?

Mr. McDowell

We have moved on to amendment No. 56.

Mr. Costello

Have we?

Mr. McDowell

Yes. There are two versions of amendment No. 56. There was a misprint in the original.

Mr. Costello

Was the Minister not just reading from amendment No. 55?

Mr. McDowell

I read out a section of amendment No. 55 earlier. I have just referred to the correct version of amendment No. 56. There was a misprint in the original, but that does not matter because I have moved the correct version of the amendment.

Mr. Costello

The Minister has clarified the matter.

Amendment agreed to.

SCHEDULE.

Chairman

As amendments Nos. 57 to 60, inclusive, are related, they may be discussed together.

Mr. McDowell

I move amendment No. 57:

In page 30, column 2, line 8, to delete "(Ireland)".

Amendments Nos. 57 to 60, inclusive, are drafting amendments which bring the references to previous Acts into line with what is provided for in the Short Titles Act.

Amendment agreed to.

Mr. McDowell

I move amendment No. 58:

In page 30, column 2, line 10, to delete "(Amendment)".

Amendment agreed to.

Mr. McDowell

I move amendment No. 59:

In page 30, column 2, line 13, to delete "(Amendment)".

Amendment agreed to.

Mr. McDowell

I move amendment No. 60:

In page 30, column 2, line 18, to delete "(Amendment)".

Amendment agreed to.

Schedule, as amended, agreed to.

TITLE.

Mr. McDowell

I move amendment No. 61:

In page 5, line 14, to delete "LAND AND" and substitute "LAND,".

Amendment agreed to.

Mr. McDowell

I move amendment No. 62:

In page 5, line 16, after "LAND" to insert the following:

"AND TO AMEND SECTIONS 16 AND 28 OF THE LANDLORD AND TENANT (GROUND RENTS) (NO. 2) ACT 1978".

Amendment agreed to.

Title, as amended, agreed to.

Bill reported with amendments.

Chairman

That concludes the select committee's consideration of the Registration of Deeds and Title Bill 2004. The committee will meet tomorrow morning to consider the International Criminal Court Bill 2003.