Land and Conveyancing Law Reform Bill 2006: Committee Stage.

This meeting has been convened for the purpose of consideration by the select committee of the Land and Conveyancing Law Reform Bill 2006. I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and his officials. Before we commence, the committee must agree on how it proposes to dispose of the Bill. I propose that we consider the Bill until 6 p.m. and adjourn at that point. I am aware Deputy Flanagan would like to secure a speaking slot on the legislation before the Dáil.

SECTION 1.

I move amendment No. 1:

In page 13, line 15, to delete "and Conveyancing".

The purpose of the amendment is to give the Bill a simple, short Title, namely, the Land Law Reform Bill 2006. The proposal forms part of our efforts to make legislation more direct and clear-cut and to remove unnecessary verbiage.

We were a little bemused as to the reason the amendment was proposed. I accept a difficulty arises in distinguishing between the land laws and conveyancing laws but there is a distinction. While we may wish to shorten the Title, doing so in the manner proposed would not reflect the contents of the Bill. Land law deals with different types of ownership of land and the rights relating to each, while conveyancing law is concerned more with the transfer and disposal of land and the rights attaching to it, for instance, by sale, lease or mortgage. In effect, land law and conveyancing law are two sides of the same coin. For this reason, we must deal with them in a single Bill. As Part 8 contains 36 sections dealing with contracts and conveyancing, I find no reason to remove from the Bill the reference to conveyancing. I, therefore, ask the Deputy to withdraw the amendment.

As this is a minor difference of opinion and not an issue in which the Labour Party proposes to get caught up, I will withdraw the amendment.

The sections of the Bill dealing with mortgages also address the conveyancing of property other than land.

Amendment, by leave, withdrawn.
Section 1 agreed to.
Section 2 agreed to.
SECTION 3.

I move amendment No. 2:

In page 14, between lines 5 and 6, to insert the following:

" "consent" includes agreement, licence and permission;".

The amendment proposes to insert a definition of the term "consent" and will assist its interpretation when used in the Bill.

Amendment agreed to.

I move amendment No. 3:

In page 14, to delete lines 11 and 12 and substitute the following:

" "the court" means—

(a) the High Court, or

(b) the Circuit Court when exercising the jurisdiction conferred on it by the Third Schedule to the Courts (Supplemental Provisions) Act 1961;”.

This is essentially a drafting amendment which substitutes a more precise definition of the words "the court".

Amendment agreed to.

I move amendment No. 4:

In page 14, between lines 32 and 33, to insert the following:

" "housing loan" has the meaning given to it by section 2(1) of the Consumer Credit Act 1995, as substituted by section 33 of, and Part 12 of Schedule 3 to, the Central Bank and Financial Services Authority of Ireland Act 2004 and "housing loan mortgage" means a mortgage to secure a housing loan.".

This amendment inserts a definition of the words "housing loan" in section 3 for the purposes of Part 9 dealing with mortgages. It is relevant to later amendments in Part 9.

Amendment agreed to.

I move amendment No. 5:

In page 15, line 34, to delete "land" and substitute "property".

The substitution of the word "property" for "land" is necessary because mortgages can cover property other than land, a point I made in our discussion on amendment No. 1.

To which property other than land does the Minister refer?

I refer to goods and chattels which form part of the property being mortgaged.

Amendment agreed to.

I move amendment No. 6:

In page 16, to delete lines 1 and 2 and substitute the following:

" "property" means any real or personal property or any part or combination of such property;".

This is a drafting amendment which indicates in a clear manner that property may also consist of real and personal property, the latter being property other than land.

Should the definition not include leasehold property? It is a kind of personal property but usually classified separately.

It is included in the definition of "land".

Amendment agreed to.

I move amendment No. 7:

In page 16, between lines 2 and 3, to insert the following:

" "Property Registration Authority" has the meaning given to it by section 9 of the Act of 2006;".

Inserting this definition will make it clear that the references to the Property Registration Authority are references to the authority established under the Registration of Deeds and Titles Act 2006.

Amendment agreed to.

I move amendment No. 8:

In page 16, line 11, after "worth" to insert "or any other consideration".

This is a drafting amendment designed to make it clear that rent may include payment of consideration other than money or money's worth.

Amendment agreed to.

I move amendment No. 9:

In page 16, line 15, to delete "or" and substitute "and".

This is a drafting amendment.

Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.

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

I move amendment No. 10:

In page 17, subsection (1)(e), line 15, to delete “assigned” and substitute “given to it”.

These are drafting amendments that will ensure the wording of section 4 is consistent with that of other sections.

Amendment agreed to.

I move amendment No. 11:

In page 17, subsection (1)(e), line 17, to delete “assigned” and substitute “given to it”.

Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.

I move amendment No. 12:

In page 18, subsection (1)(c), line 3, after “giving” to insert “full”.

This amendment is included because we believe it would give the Minister greater discretion to give full effect to the Bill. It would also compensate for the removal of power to modify Acts. This point relates to our next amendment.

My advice is that there is no good reason for the inclusion of the word "full". The question of whether to use "give effect" or "give full effect" is one of semantics. Perhaps the inclusion of the word "full" would make it a little more difficult for a court to make a determination on the legislation in that a question would arise as to what constituted "full effect" and "partial effect". I would have believed stating "giving effect" to an Act would be a little more precise in terms of legal interpretation.

We will not accept the Deputy's proposal in amendment No. 13 to delete subsection (2).

We are discussing amendment No. 12.

Amendment, by leave, withdrawn.

I move amendment No. 13:

In page 18, lines 4 to 13, to delete subsection (2).

The reason we want to delete subsection (2) is we believe it is of dubious constitutionality in that it allows the Minister to amend the law by regulation. We refer the Minister to the Supreme Court decision in Mulcreevyv. the Minister for the Environment, Heritage and Local Government. I would like to hear his comments on this.

Subsection (2) is an exceptional and time-limited provision designed to deal with any unforeseen difficulties in implementing the Bill or other statutes that it amends. Any modifications made in such regulations must be in conformance with the purposes, principles and spirit of the Bill. Many existing statutes contain this limited safeguard along these lines. I can examine the matter again before Report Stage but my advice is that, in the initial implementation of the Bill, it would be better to have such a provision. It is not in any way to override the legislation by regulation. We have had a number of these provisions in relatively recent Acts, for instance, the Residential Tenancies Act 2004, the Residential Institutions Redress Act 2002, the Local Government Act 2001, the Planning and Development Act 2000 and the British-Irish Agreement Act 1999.

Has the provision been used yet?

Not that we know of.

I will withdraw the amendment but we might table it again on Report Stage.

We will consider it again on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 14:

In page 18, subsection (4), line 21, to delete "shall be" and substitute "is".

This is a drafting amendment.

Amendment agreed to.
Section 5, as amended, agreed to.
Sections 6 and 7 agreed to.
SECTION 8.

I move amendment No. 15:

In page 18, subsection (2), line 40, after "subsection (1)," to insert the following:

"and without prejudice to section 26(2)(f) of the Act of 2005,”.

We propose this amendment because we want to make it clear that the rule in section 8(2) is unnecessary. The same provision is made in the Interpretation Act 2005 in section 26(2)(f). The amendment makes it clear that the ordinary rules under the Interpretation Act would continue to apply. I want to hear the Minister’s comments on this.

The Interpretation Act 2005 applies to all Acts of the Oireachtas and its provisions, including section 26, will apply equally to this legislation, when enacted. I see no reason, therefore, for inserting a specific reference to section 26 of the Interpretation Act in section 8(2). On the other hand, there may be no need for that subsection. We are consulting the Office of the Attorney General on the matter. I would bring forward an amendment on Report Stage if the Deputy withdrew hers.

Amendment, by leave, withdrawn.

I move amendment No. 16:

In page 18, subsection (2), line 45, to delete "is to" and substitute "shall".

This is a drafting amendment.

Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.

I move amendment No. 17:

In page 19, between lines 6 and 7, to insert the following subsections:

"(2) In so far as they survive, titles of honour or dignity arising from feudal baronies and manorial lordships are abolished.

(3) If after the commencement of this section a person purports to sell or offer for sale a title of honour or dignity abolished bysubsection (2), he or she shall be guilty of an offence.”.

It has been suggested to us by the Genealogical Society of Ireland that the practice of selling bogus titles should be stopped. According to the society, such titles are registerable incorporeal hereditaments and continue in law and consequently need to be abolished specifically. That is why we tabled the amendment.

My brief states my position clearly. Those who spend money in purchasing feudal baronies or manorial lordships only to discover subsequently that there is no link with specific land have obviously paid insufficient attention to the matter. I understand my predecessor received some correspondence on the prohibition of the sale of such titles but the solution proposed, that is, the abolition of all incorporeal hereditaments in the Bill, was clearly not feasible. Easements are also incorporeal hereditaments and obviously must be retained in the Bill. The drafting group of the Law Reform Commission which prepared the Bill researched the question of whether dignities and titles could be regarded as a form of incorporeal hereditament. In response to a suggestion that provision be made in the Bill the group, having examined the issue at some length, concluded that titles of honour, whatever their origin, had evolved over the century into personal rights rather than interests in land and should not, therefore, be dealt with in the Bill. I obviously agree with the view that such titles do not amount to an interest in land. Obviously, this is not the appropriate legislation in which to deal with the matter.

Does the Minister believe it should be dealt with in other legislation?

It should be but not in this Bill.

I recall that the Labour Party introduced a Bill in the Seanad that attempted to cover these issues. Will the Minister examine that legislation?

This is a matter that has arisen from time to time. I cannot think of any other legislation that might incorporate the sentiment expressed by Deputy Tuffy. It is reasonable considering that titles have been sold which were purported to be attached to land and related to feudal titles. Will the Minister seek the advice of the Attorney General on how best the matter may be addressed? There is a feeling among all parties that it is one that requires a legislative approach. I am mindful of what the Minister says that an easement is, in essence, an incorporeal hereditament, as we would not want to interfere with the long-standing status of easements in conveyancing law. Will he ask the Attorney General how the import of Deputy Tuffy's amendment might be addressed?

I will do so. However, accepting the amendment could potentially create a doubt about whether these titles were attached to land. Currently, the law is clear and the view of the Law Reform Commission is that they are not attached. If the amendment were included in the legislation, it could possibly give some credence to the view that in some way they do attach to land when they do not.

I agree with the sentiments expressed in the amendment. I also agree with the Minister that the only legal text in which we find a reference to this is in Wylie'sIrish Land Law. The problem with such a provision in law is that there is nothing to stop someone changing his or her name by deed poll to whatever lordship or viscountcy he or she wishes. A constituent who has visited my constituency office on occasion is a prominent member of the aristocracy. I am not sure what he would think of this provision. While I agree with the sentiments expressed in the amendment, I wonder what effect it would have in practice.

Unlike the southern end of the newly redrawn constituency of Louth, there are few such titles in my part of the constituency, a good republican part of the county.

The constituent to whom I referred ran against the Minister in the constituency of Louth once.

He did. I will raise the issue with the Attorney General to ascertain how it could be dealt with.

When the Attorney General is examining it, he might also consider the wording of the Labour Party amendment. The Minister claims that accepting it might raise further problems.

I am not saying there is a problem with the wording of the amendment but that the matter should not be dealt with in this legislation because it could raise more doubts. I will ask the Attorney General to review the matter.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 19, subsection (3)(b), line 12, to delete “in” and substitute “under”.

This is a drafting amendment.

I will accept this amendment.

Amendment agreed to.

I move amendment No. 19:

In page 19, between lines 17 and 18, to insert the following subsection:

"(4) Subject to this Act a fee simple shall be freely alienable by the owner thereof.".

While section 9(3)(c) states section 9(2) does not affect the rule against inalienability, the rule was contained in an Act repealed by section 8(3). The rule, therefore, is not stated in the Bill. This has the potential to cause confusion and the amendment seeks to clarify the matter.

We can examine this amendment before Report Stage. I accept its substance. Section 9(2)(c) makes it clear that the abolition of feudal tenure does not affect the freedom to dispose of a fee simple. This is also known as the rule against inalienability and is contained in Statute Quia Emptores 1290 which is being repealed under section 8. The explanatory memorandum provides additional information on this point.

Amendment, by leave, withdrawn.

I move amendment No. 20:

In page 19, between lines 17 and 18, to insert the following subsection:

"(4) A tenant of a local authority who whether before or after the commencement of this section purchases a fee simple from the authority may alienate the fee simple without the consent of the authority.".

The Minister will be aware that persons who bought their council house from a local authority must get its consent to sell or mortgage the property. This includes cases where a husband may transfer the title deeds to his and his wife's name. That seems unnecessary and is not in keeping with efforts to encourage couples to put properties in joint names. I accept the provision is designed to prevent speculation but there are ways around it. There is not much a council can do with a house being sold, apart from granting initial consent. I question whether this provision is necessary in the first place. It is certainly not necessary in the case of a spouse transferring the title deeds under both names.

I do not agree with the Deputy. It seems rather unsocialist of the Labour Party to propose this amendment. With a local authority, the Government outlays funds to build housing. When a person exercises a tenant purchase option, the local authority has a strong interest in knowing to whom the house may be sold, particularly if the tenant who initially bought the house may end up on a local authority housing list again. When I was a solicitor, I thought I had transferred titles of local authority tenant purchases to both spouses without needing the consent of local authorities.

Deputy Tuffy is making a different point from Deputy Byrne's. The amendment is reasonable if what is being conveyed is the fee simple. That is where the issue arises. There are cases where purchasers of property may, inadvertently or otherwise, be of the view that they are buying something that they do not actually buy. Under the principle of conveyancing, the fee simple absolute interest is the real Ally Daly. It is the best form of title and purchase.

Deputy Tuffy is attempting to address what is a real problem. It is under the local government Acts rather than the conveyancing Acts which have introduced a practice where, even though the fee simple interest has been passed and the full monetary value paid, a burden on the property remains in favour of the local authority, which at times can cause considerable hardship, not of a type as referred to by Deputy Byrne but as one that may give rise to difficulty. This is because the property is not freely alienable owing to the burden in favour of the local authority, in spite of the fee simple having been conveyed. That is the point Deputy Tuffy wishes to address and I should be very anxious to support it. However, I am not sure whether we can do so in this section. My recollection is that there is an overlapping of local government legislation empowering local authorities, notwithstanding the disposal of the fee simple, to retain an interest in land which in the circumstances may be dubious.

I have some sympathy for the amendment, but Deputy Flanagan has put it well in saying this is not the appropriate legislation in which to deal with the issue. The position is that section 26 of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 provides that a lessee is entitled to acquire the fee simple from the local authority, subject to certain conditions, including that the house will continue to be used as a dwelling. This is fair and reasonable because the local authority has an interest in ensuring the house is not used for a purpose other than that for which it was originally intended. The Landlord and Tenant Commission, on whose recommendations these statutory provisions are based — that is, the fee simple may be bought subject to certain conditions — has pointed out that local authorities have obligations in respect of houses provided by them. It would be contrary to public policy if a lessee, having purchased the fee simple, was free to use the house, say, for business purposes. Special conditions are, therefore, set out in sections 89 and 90 of the Housing Act 1966, as amended. Whatever the merits of the proposal, this is not the appropriate legislation in which to deal with the housing responsibilities of local authorities. The Housing (Miscellaneous Provisions) Bill has been published and appears to provide a more appropriate opportunity to deal with the matter. In fact, we have raised it with the Department of the Environment, Heritage and Local Government in order that it might be included.

Deputy Flanagan put it much better than I did. I accept what he and the Minister said, that this might not be the appropriate legislation in which to deal with the matter. However, for the reasons outlined by Deputy Byrne — when someone buys a house, he or she owns it — why should anyone be able to stop him or her from selling it? This provision looks dubious and might be challenged on constitutional grounds, as a person either owns a property or he or she does not. It is not as if there is a mortgage or other charge on the property. This is saying one can only sell it if a local authority which has no further interest in it gives its consent. In that sense, the provision is probably very dubious. However, I accept the Minister's point.

My heart may be with the Deputy, but my head is not, as someone who was a local authority councillor before becoming a Deputy. In my home town speculators have bought property and then rented units for exorbitant sums. To be fair to the local authority, it has tried to prevent this happening, but I do not know what the experience of other local authorities has been. This is an attempt to maintain a semblance, while accepting that a person has full title. This arose from long leases of 999 years which, in effect, were freehold, except for the fact that they were subject to conditions, many of which were not complied with. The real point is that this legislation is not the appropriate place in which to deal with the matter.

I am in a minority of one and do not wish to delay the discussion. However, the property is being bought at a discounted price from the local authority. There is a discount of up to 30%, plus a grant. There is a policy consideration to be addressed.

We are introducing morals and discussing whether it is socialism, etc. Either a person owns the property or he or she does not. Regardless of whether there is a discount, if a person buys a house and purchases the fee simple and the property is registered in his or her name, he or she is the owner. However, I accept the point made by the Minister, that it is not appropriate for us to introduce moral, political or ideological concerns in this regard. If I buy a property and register the fee simple with the Land Registry, I am in the same position as the person who buys a council house. Somebody who is turned down in seeking consent in this regard might be able to challenge that decision in the courts.

If it could have been challenged before, it would have been because it has been a hallmark of land and conveyancing law for many years that property is either leased or dealt with in fee simple, subject to a number of conditions. As the Landlord and Tenant Commission stated, it is in the interests of the State, as a matter of public policy, not to have a free for all. The State has made the investment. There is also the fact, alluded to by Deputy Byrne, that the property is made available for purchase at a discounted rate. Therefore, it is right and proper that some minimal conditions should continue to attach, including that the building in the middle of a housing estate continue to be used as a dwelling house in order that the next door neighbours will not be up in arms.

I do not agree with the Minister but shall not labour the point. The fact is that a purchaser, oftentimes at full value, buys something that, in effect, is less than the fee simple interest. We are dealing with ownership and the abolition of feudal tenure, as well as estates and interest in land. It is unfair to place such a burden on the fee simple interest. The Minister speaks of ground rents, but this is not a landlord and tenant relationship. It is the purchase of the fee simple interest. For example——

Conveyancing based on long leases took place for many years. I bought my house based on a 999 year lease, subject to conditions. As far as I was concerned——

That was the leasehold title.

——I had paid the full value because, in effect, it was the fee simple, subject to conditions.

By the same token, the Minister was purchasing something that was less than the fee simple interest in the land. The point Deputy Tuffy makes is that——

It cost me about 50p to buy out the freehold, which shows the extent——

We are dealing with the title. We are dealing with a Bill that, in effect, is attempting to turn the clock back in dealing with many of the anomalies. For example, a number of titles in respect of the sale and resale of what were local authority houses that include clauses such as "...the house shall only be sold to somebody who is a member of the working classes", are still very much in evidence. It is a problem that has not been addressed because we have not been in a position to look at it in law. Perhaps the Minister will keep in close contact with his colleague, the Minister for the Environment, Heritage and Local Government, Deputy Gormley, as there can be hardship where somebody owns a house for many years, perhaps having inherited it from a predecessor, and is not in a position to dispose of it on the open market in the same way as his or her next door neighbour because the consent of the local authority will only be given if two conditions are met: that the person selling make a declaration as to his or her housing status and that he or she will not seek to be housed by the council in the future. Equally as restrictive, the person buying the house must be seen to be in need of housing. It is unfair to place that burden on the fee simple title, which is the point Deputy Tuffy is making. If it will not be addressed in the Bill, will the Minister please talk to his colleague, the Minister for the Environment, Heritage and Local Government, about it because it presents a problem?

As I said, I have some sympathy with the merits of the issue but, as the Deputy noted, this is not the right legislation in which to deal with it. The suggestion the Deputy would make is that the covenant or condition of sale would have to be with regard to someone of a working-class nature. That would be illegal today and would not stand up.

I am fairly close to the ground in my own constituency, both from a legal and a political point of view, and I have never come across it. What happened in the barony of Offaly, I do not know.

A Deputy

One of the king's counties.

As I said, we have taken it up with the Department of the Environment, Heritage and Local Government and I will do so again.

Amendment, by leave, withdrawn.
Section 9, as amended, agreed to.
Section 10 agreed to.
SECTION 11.

I move amendment No. 21:

In page 20, subsection (2)(c)(ii), line 3, after “person,” to insert “or”.

This is a drafting amendment.

Amendment agreed to.

I move amendment No. 22:

In page 20, subsection (5), line 32, to delete "before" and substitute "at".

This is a drafting amendment.

Amendment agreed to.

I move amendment No. 23:

In page 20, subsection (6), line 38, to delete "so referred to" and substitute "referred to in those subsections".

This is a drafting amendment.

Amendment agreed to.
Question proposed: "That section 11, as amended, stand part of the Bill."

Section 11(1) states: "The only legal estates in land which may be created or disposed of are the freehold and leasehold estates specified by this section." While I do not know whether the Law Reform Commission has given consideration to this point, what about part of leasehold estates where part of a property which is covered by one head lease is sold? Certainly, in my office——

The only legal estates——

Should provision be made for part of a leasehold estate and for the covenants in a lease to apply to the parts that are being sold? Perhaps it is a theoretical issue but is it——

The only legal estates in land which may be created or disposed of are the freehold and leasehold estates specified in this section.

If I own a leasehold property with, say, a 999-year lease, and I want to sell part of it, is it legally possible to assign or convey the covenants to two people? It is an issue that has been raised in academic discussion at times.

We are dealing with that in sections 46 and 47.

If it is already dealt with, that is fine.

Question put and agreed to.
NEW SECTION.

I move amendment No. 24:

In page 21, before section 12, to insert the following new section:

12.—(1)(a) It shall be a condition of any planning permission for an apartment development that the applicant will form a management company and arrange for the issue of shares in the company to purchasers of apartments in the development.

(b) Where a permission has been granted prior to the commencement of this section for an apartment development, the developer shall form a management company (if not already formed) and arrange for the issue of shares in the company to purchasers of apartments in the development (if not already issued) within 12 months of the commencement of this section.

(2) Section 34(4)(f) of the Act of 2000 is amended by the addition after “houses” of “or apartments”.

(3) On demand made by a majority of the purchasers of apartments in an apartment development, or on completion of the development, whichever first occurs, or in the case of developments completed prior to the commencement of this section, on the date which is 12 months from the commencement of this section, the developer shall transfer ownership and management of all common areas to the management company referred to insubsection (1).

(4) A purchaser may apply in a summary manner to the court in the event of a failure to comply with this section and the court may require the applicant or developer to take such steps as the court directs to comply with the section and to pay compensation to the purchaser in such amount as the court thinks fit.".

We put forward this amendment to highlight the fact there is a need for legislation in regard to the whole issue of management companies and apartment developments, given how the developers themselves set up the whole structure. While the Minister will doubtless tell us other legislation is forthcoming, he is probably aware that apartments have been developed where the developer controls the management company and is not taking the necessary actions, such as the transfer of common areas to the management company, as he should. This is the issue addressed in the amendment.

We must do something about this area. I have been dealing with somebody recently on the issue of his management fees and how he is being treated by the management company and the management agent. I noticed that in one of his bills, the management company's address was care of the management agent, which is totally wrong and does not make sense. The man has been in his apartment in Clondalkin for three years and at this stage is being sued by the management company for €20,000. He is being ripped off.

The problem for this person is that he cannot go anywhere to get help. He cannot go to the National Property Services Regulatory Authority except on an informal basis and the new legislation to deal with management companies is not in place. On one side, there are people who are not legally fluent and, on the other, there are management companies and management agencies which are employing solicitors and barristers to fight their case. The man I am dealing with may well have to sell his apartment to pay off the management agent's fee and the amount of money he is being sued for.

In raising this case I am suggesting there is a problem with the way management companies and management agents are operating, the way developers use them and the way they co-operate. This needs to be dealt with by legislation, some of which will come through the Minister's Department. The National Property Services Regulatory Authority has been set up for over a year and the Bill is badly needed to give it the powers to deal with managing agents. The other legislation is also badly needed. If the Minister got even one of the Bills up and running, it would be a great move forward for people in apartments who must deal with this issue.

I concur with much of what the Deputy has said. The Government is working very closely and intensely on the issue of multi-unit developments, which it is treating as a priority. There have been very detailed discussions among a number of Departments, including my Department, the Department of Enterprise, Trade and Employment and the Department of the Environment, Heritage and Local Government, and the Office of the Attorney General and the Department of the Taoiseach have also been involved.

The issue is multifaceted and goes across the responsibilities of all of the Departments involved. For example, my Department is bringing forward the property services regulation Bill very shortly, which will form part of the jigsaw in regard to multi-unit developments. We are still considering the issue of whether we will have a single Bill to deal with all, but at present work is going on in all three Departments in conjunction with the Attorney General's advice as to how to move on this. We intend to bring forward either one Bill or a number of them in this regard in the not too distant future.

With regard to the specific point raised by the Deputy on existing management company problems, she will understand that with legislation there is a difficulty in making it apply retrospectively. However, we are examining this issue and, on the advice of the Attorney General, we are endeavouring to put in place a dispute resolution mechanism which will involve court and would deal with the type of problems to which the Deputy refers. We are treating this as a matter of extreme urgency.

People often go on about quangos and suggest we should get rid of many bodies, and there is much truth in this. Many bodies have advisory roles and one often wonders whether they could not be merged with other bodies. However, the National Property Services Regulatory Authority is a necessary body and will be worthwhile.

The Minister pointed to alternative dispute resolution as the way to deal with this. That is exactly what is needed because these are not the type of issues that should go to court. If there is an issue where a person does not want to pay his or her bill because the service is not being provided, the way to deal with this is through mediation and the National Property Services Regulatory Authority could be a mediator between the apartment owner and the managing agents. It would hopefully also have the powers that could bring the managing agents or the managing agents to heel because, at present, they are wielding a big stick through the courts and, at the same time, they are not providing the services they should be providing, and are leaving lifts broken and so on. On the other hand, many apartment owners cause the problems themselves because they do not pay the management fees, which means the money is not there to provide the services.

There is an element of catch-22 to all of this. However, if there is mediation, people would come to understand the issues. If the Minister does nothing else, the Bill which would give the authority the necessary powers is the most important one.

I accept that. Ultimately, much of this is contractual. People entered into these agreements and covenants, apparently based on the advice of their legal representatives. While I have not practised since 1994 in effect, I have been astounded by the way in which people have signed on to such agreements. This primarily is an issue in Dublin and a number of other major urban areas and not so much in my constituency, even in its larger urban areas. Nevertheless, I am acutely aware of this issue, which is being treated on a daily basis by the Government.

I welcome the Minister's comments and without wishing to delay the meeting, I wish to impress on him the need to ensure that local authorities do not shirk their responsibility. It seems that in recent years, local authorities have been using private management companies as a way to absolve themselves from responsibility. This must not be the case because the public interest rests with the role of the local authority. Whatever legislation or arrangement is agreed on by this House, local authorities have an important role that they cannot abdicate. I refer to their responsibility to the private sector, because this gives rise to the type of difficulty raised by Deputy Tuffy.

Amendment, by leave, withdrawn.
SECTION 12.

Amendments Nos. 25 and 28 are cognate and may be discussed together by agreement.

I move amendment No. 25:

In page 21, subsection (2), line 7, to delete "entered into" and substitute "executed".

This is a drafting amendment.

Amendment agreed to.

I move amendment No. 26:

In page 21, between lines 22 and 23, to insert the following subsection:

"(5) Notwithstandingsection 11(2), any fee simple held under a fee farm grant existing at law at the commencement of this Part continues as a legal estate and may be disposed of.”.

Section 12 prohibits the creation of any new fee farm grants. These are a legacy of our history and comprise fee simple estates with an obligation to pay rent. The proposed new subsection (5) will make clear that despite the prohibition on the creation of any new fee farm grants, any fee simple held under fee farm grant already existing at the commencement of the Act will continue as a legal estate and may be disposed of.

Amendment agreed to.

I move amendment No. 27:

In page 21, subsection (5), line 23, to delete "11(4)” and substitute “11(3)”.

My briefing note on the Deputy's proposed amendment indicates that the cross reference to section 11 in the current subsection (5) is correct. I am not altogether certain what the Deputy——

The Labour Party legal advisers thought this was an error and that subsection (5) is an exception to subsection (3), rather than subsection (4), as the latter only deals with contracts. However, if the Minister considers the reference to be correct, I accept his word.

Subsection (5) refers to section 11(4) and not to section 12(4).

I will withdraw the amendment as I am uncertain of the reasoning behind it.

Amendment, by leave, withdrawn.
Section 12, as amended, agreed to.
SECTION 13.

I move amendment No. 28:

In page 21, subsection (2), line 28, to delete "entered into" and substitute "executed".

Amendment agreed to.

I move amendment No. 29:

In page 21, between lines 40 and 41, to insert the following subsection:

"(4) Where on the commencement of this section, or on a person becoming entitled to a fee tail after such commencement, another person's estate or interest in land is extinguished by virtue ofsubsection (3), the second-mentioned person may apply to the court within 12 years of such extinguishment for an order determining the amount of compensation if any that should be paid to the second-mentioned person, and such order may make provision for charging the payment on the land subject to such conditions as the court sees fit.”.

The Labour Party has tabled this amendment because I understand the UCC academic, Professor John Mee, has pointed out that section 13(3) may be unconstitutional as it provides for the abolition of property rights without compensation. This amendment is designed to save the section from being unconstitutional by allowing a court to determine whether any compensation should be paid. Does the Minister wish to comment?

Section 13 prohibits the future creation of a fee tail estate. Any future attempt to do so will create a fee simple instead. Subsection (3) goes on to convert existing fee tails into fee simples. Under a 19th century statute it already is possible, under certain conditions, to bar the entail, that is, to terminate a fee tail estate. One such condition is that the permission of the protector of the entail is given. This condition is carried over into subsection (3), which will ensure that interference with any existing interest in the land is avoided. Since the provisions in section 13 will continue to protect any existing interest in the land, I do not discern a need for the provisions proposed by Deputy Tuffy.

Is the Minister satisfied that the point regarding the section's potential unconstitutionality is not valid?

An existing protection exists and all this provision is doing is to carry it over. In respect of future creations, subsection (3) will convert the existing fee tails into fee simples. Consequently, the non-interference, as it were, with the interest in the land is protected.

While I withdraw the amendment, I may table it again.

Amendment, by leave, withdrawn.
Section 13, as amended, agreed to.
SECTION 14.

I move amendment No. 30:

In page 22, subsection (1), line 18, after "equity" to insert the following:

"and shall be deemed to be a grant of an indefinite lease terminable at will".

I have tabled this amendment because while I note the Bill prohibits leases for lives, by stating they are void, it gives them no effect whatsoever. I believe this is not in line with the manner in which, for example, fees tail are created, whereby the purported grant of a fee tail operates as a grant of a fee simple. My point is that similarly, a purported lease for lives should operate as an indefinite lease terminable at will.

This amendment does not make sense. If the grant of the lease is void, as provided for in the Bill, how could it then be deemed to be of a particular type of lease? Even if this could be done, the effect of the amendment would be the creation of a tenancy at will, which is specifically excluded from the definition of tenancy in subsection (3).

I will withdraw the amendment.

Amendment, by leave, withdrawn.
Section 14 agreed to.
Sections 15 to 20, inclusive, agreed to.
SECTION 21.

Amendments Nos. 31, 33 and 145 are related and may be discussed together by agreement.

I move amendment No. 31:

In page 25, subsection (1), to delete lines 18 to 21 and substitute the following:

"so that it ceases to affect that estate or interest, whether or not the purchaser has notice of the equitable interest.".

These are important amendments which address an aspect of the Bill that has been the subject of discussion since its passage through the Seanad. Section 21 provides for the overreaching of equitable interests in land, that is, where a person is part owner by virtue of having contributed to the purchase or renovation of a house but is not a registered legal owner, in order that the purchaser obtains a clean title, overreaching does not extinguish the equitable interest but attaches it instead to the proceeds of sale. This is not a new concept in our law. At present, a tenant for life under the Settled Land Acts can sell or lease the land. In such cases, the interests of the future beneficiaries are safeguarded by transferring their interests from the land to the proceeds of sale or lease.

Arising from discussions that have taken place, there are concerns that section 21 may go too far in overreaching the equitable interests of a person who is in actual occupation of the land. While subsection (4) provides for the registration of an equitable interest in the Land Registry or Registry of Deeds, thereby preventing any overreaching of that interest, section 72 of the Registration of Title Act 1964 provides that actual occupation is a burden affecting the land, whether it is registered or otherwise. It therefore is proposed to retain the provision of section 72 of the 1964 Act. This will mean that the equitable interest of a person in actual occupation or receipt of rent or profits cannot be overreached, even if it has not been registered in the Land Registry or Register of Deeds. The existing practice, whereby an intending purchaser must make inquiries as to who is in actual occupation of the land or to whom rent is paid will, therefore, be retained. The text of the amendment to subsections (1) and (3) will achieve the desired result. Amendment No. 145 will retain section 72(1)(j) of the 1964 Act.

Amendment agreed to.

I move amendment No. 32:

In page 25, subsection (3)(a), line 33, to delete “or other improper”.

This is a drafting amendment. The words to be deleted are superfluous.

Amendment agreed to.

I move amendment No. 33:

In page 26, subsection (3)(b)(iii), line 3, to delete “conveyance.” and substitute the following:

"conveyance or taking effect as a burden coming within section 72(1) (j) of the Act of 1964 (or, in the case of unregistered land, which would take effect as such a burden if the land were registered land).”.

Amendment agreed to.

I move amendment No. 34:

In page 26, subsection (5), lines 7 and 8, to delete all words from and including "of" in line 7 down to and including "effect" in line 8 and substitute the following:

"arising from the conveyance and effect shall be given".

This is a drafting amendment.

Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.

I move amendment No. 35:

In page 26, lines 33 and 34, to delete subsection (4) and substitute the following:

"(4) Insubsection (1), “person having an interest” includes a mortgagee or other secured creditor, a judgment mortgagee or a trustee.”.

This amendment inserts a judgment mortgagee in the list of persons deemed to have an interest in a trust and will bring the list of persons having an interest into line with the corresponding list in section 29(4)(a).

Amendment agreed to.
Section 22, as amended, agreed to.
NEW SECTIONS.

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

I move amendment No. 36:

In page 26, before section 23, to insert the following new section:

"PART 5

VARIATION OF TRUSTS

23.—In this Part—

"appropriate person", in relation to a relevant trust, means—

(a) a trustee of, or a beneficiary under, the trust, or

(b) any other person that the court, to which the application concerned under section 24** is made, considers appropriate;

"arrangement", in relation to a relevant trust, means an arrangement—

(a) varying, revoking or resettling the trust, or

(b) varying, enlarging, adding to or restricting the powers of the trustees under the trust to manage or administer the property the subject of the trust;

"relevant person", in relation to a relevant trust, means—

(a) a person who has a vested or contingent interest under the trust but who is incapable of assenting to an arrangement by reason of lack of capacity (whether by reason of minority or absence of mental capacity),

(b) an unborn person,

(c) a person whose identity, existence or whereabouts cannot be established by taking reasonable measures, or

(d) a person who has a contingent interest under the trust but who does not fall within paragraph (a);

"relevant trust"—

(a) subject to paragraph (b), means a trust arising, whether before, on or after the commencement of this section, under a will, settlement or other disposition,

(b) does not include—

(i) a trust created for a charitable purpose within the meaning of the Charities Acts 1961 and 1973,

(ii) an occupational pension scheme within the meaning of the Pensions Act 1990 established under a trust,

(iii) a trust created by a British statute,

(iv) a trust created by a Saorstát Éireann statute, or

(v) a trust created by an Act of the Oireachtas, whether passed before, on or after the commencement of this section.".

This is one of my most significant amendments because for the first time it makes specific statutory provision in Irish law for the variation of trusts. The enactment of such a provision has been recommended by the Law Reform Commission in its reports on the rule against perpetuities and cognate rules and the variation of trusts. In both reports the commission recommended that the abolition of the rules in question which will be repealed by section 16 of the Bill be accompanied by the enactment of statutory provisions to permit the variation of trusts. That is the purpose of the new Part.

With limited exceptions, current law prohibits variation of trusts. Against this background of limited flexibility, the Law Reform Commission recommended a more flexible approach to meet legitimate needs where practical difficulties were concerned. Difficulties may arise where certain trustee powers are left out of the trust instrument but are found to be necessary when the trust takes effect, for instance, the power to sell land or other assets or to continue running a business and some investment powers outside the limits set in the Trustee Act 1893 such as the power to delegate. Another problem that arises is the failure to identify trustees in a trust instrument adequately.

According to the Law Reform Commission, experience shows that there are many trusts that have not been well drafted. For example, it may have been necessary to settle will trusts in a hurry without foreseeing the practical problems that could arise. Other factors that may give rise to the need to vary a trust are related to a change in family circumstances not foreseen by the settler. For example, a beneficiary who becomes frail and incapacitated may require specialist care or settled accommodation rather than continuing to reside in what is the family home. To deal with this situation and avoid undue interference with the settler's intentions, the new power provides that any variation shall be conditional on the court being satisfied that it is for the benefit of the beneficiary who cannot or will not consent for himself or herself.

The first new section contains the required definitions, while the second establishes a new court jurisdiction. The application to the court must be made by the appropriate person for the benefit of the relevant person. The other beneficiaries of the trust must agree to the proposed variation in writing. However, where another beneficiary is incapable of consenting or cannot be located, the court can provide for the variation, as long as it is in the person's interests. These provisions do not affect charitable trusts in any way. Moreover, in order to avoid misuse of the provisions, a court may not approve an application in any case in which the Revenue Commissioners have satisfied it that the application is substantially motivated by a desire to avoid or reduce a tax liability.

I am surprised by the introduction of the amendment which was circulated last week, as it is confusing and poorly drafted. I understood the Department was reviewing trust law and that there would be a specific trust Bill. Why has the Minister chosen to introduce the change in the form of a detailed amendment to this Bill? Is the trust Bill not on schedule or does it obviate the urgent need to proceed with trust legislation? Why is the change being made when other trust law reforms are not being dealt with? I am not clear on the reason. I will probably not have an opportunity to revert to this issue on Report Stage. However, it is worthy of further discussion. Will the Minister facilitate such a discussion, as I am unhappy with this complex amendment?

I agree to facilitating a discussion on Report Stage. On the reason for the inclusion of the provision in this Bill, I will reiterate my earlier statement. The repeal of the rules in question is linked with section 16, as recommended by the Law Reform Commission. Given the commission's recommendation that their abolition be accompanied by the enactment of statutory provisions to prevent the variation of trusts, one follows the other.

Did the Law Reform Commission recommend that the abolition be provided for through this legislation? I agree with Deputy Flanagan that it would be more appropriate to deal with the issue in a separate Bill.

The Law Reform Commission did not specifically recommend that it be handled in this legislation. It stated the abolition of the rules would necessitate the enactment of statutory provisions to prevent the variation of trusts.

There are a number of jurisdictions governing the varying of trusts. In order that Deputies might have a full knowledge in advance of Report Stage, the first concerns the rule in the case of Saundersv. Vautier which may be invoked where the beneficiaries of a trust are of full age and capacity and entitled to benefit from their entire beneficial interest in the trust. If they agree among themselves, they may terminate the trust and direct that the property be distributed according to their instructions without the courts’ involvement.

With regard to what is known as the salvage jurisdiction, the courts have an inherent power to authorise a variation on behalf of beneficiaries who are not of full age or capacity where some unforeseen event occurs and it is necessary to authorise the trustees to take action to protect trust property from destruction or damage. For example, a power of sale may be conferred to fund essential repairs to the property.

Despite the fact that the trust instrument may direct that income be accumulated, direct payments may be made in favour of a needy infant beneficiary. The basis of this jurisdiction is that the courts assume that the settler did not intend that beneficiaries be left without reasonable means. However, this power cannot be exercised in favour of a needy adult.

A compromise jurisdiction arises where there is a genuine dispute regarding the interpretation of a trust instrument. Where a compromise is agreed between the beneficiaries of full age and capacity, the court may consent on behalf of the remaining beneficiaries.

I refer Deputies to page 63, part 3 of the Law Reform Commission's report, which refers to its earlier report on the rule against perpetuities and cognate rules. I am discussing its report on the modernising of land and conveyancing law. In referring to the earlier reports, which I mentioned earlier, it said they had called for a substantial simplification of the law by abolition of several exceptional complicated rules governing the vesting of interests in the future. These were the rules against perpetuities and cognate rules, such as the rule in Whitbyv. Mitchell. That brings back memories. Another example is the rule against accumulation and the rules in Purefoy v. Rogers. The commission took the view that the abolition of the rule against perpetuities should be accompanied by the introduction of the variation of trusts in legislation.

Both members are reliving their former lives.

This is one of the reasons why I do not want to delve into it to a great extent. I welcome what the Minister has said.

Amendment agreed to.

I move amendment No. 37:

In page 27, before section 23, to insert the following new section:

24.—(1) An appropriate person may make, in respect of a relevant trust, an application to the court for an order to approve an arrangement specified in the application for the benefit of a relevant person specified in the application if the arrangement has been assented to in writing by each other person (if any) who—

(a) is not a relevant person,

(b) is beneficially interested in the trust, and

(c) is capable of assenting to the arrangement.

(2) The court shall not hear an application made to it undersubsection (1) in respect of a relevant trust unless it is satisfied that the applicant has given notice in writing of the application—

(a) to the Revenue Commissioners, and

(b) to such persons as may be prescribed by rules of court, at least 2 weeks before the hearing of the application.

(3) The court may hear an application made to it undersubsection (1) otherwise than in public if it considers that it is appropriate to do so.

(4) The court shall determine an application made to it undersubsection (1) in respect of a relevant trust—

(a) subject to paragraph (b), by making an order approving the arrangement specified in the application if it is satisfied that the carrying out of the arrangement would be for the benefit of—

(i) the relevant person specified in the application, and

(ii) any other relevant person,

(b) by refusing to make such an order in any case where—

(i) the court is not satisfied as referred to inparagraph (a), or

(ii) the Revenue Commissioners have satisfied the court that the application is substantially motivated by a desire to avoid, or reduce the incidence of, tax.

(5) In determining undersubsection (4) whether an arrangement would be for the benefit of a relevant person, the court may have regard to any benefit or detriment, financial or otherwise, that may accrue to that person directly or indirectly in consequence of the arrangement.

(6) Nothing in this section shall be construed as derogating from or affecting the operation of—

(a) the Charities Acts 1961 and 1973,

(b) any power of a court, whether under an enactment or rule of law, to—

(i) vary, revoke or resettle a trust (including a relevant trust), or

(ii) vary, enlarge, add to or restrict the powers of the trustees under a trust (including a relevant trust) to manage or administer the property the subject of the trust,

or

(c) any rule of law relating to the termination or revocation of a trust (including a relevant trust).”.

Amendment agreed to.
Section 23 agreed to.
Sections 24 to 28, inclusive, agreed to.
SECTION 29.

I move amendment No. 38:

In page 29, line 22, to delete "and".

This is a drafting amendment.

Amendment agreed to.
Section 29, as amended, agreed to.
Sections 30 to 34, inclusive, agreed to.
NEW SECTION.

I move amendment No. 39:

In page 31, before section 35, to insert the following new section:

35.—(1) Subject tosubsection (2), where the servient owner is incapable, whether at the commencement of or during the relevant user period, of managing his or her affairs because of a mental incapacity, the running of that period is suspended until the incapacity ceases.

(2)Subsection (1) does not apply where—

(a) the court considers that it is reasonable, in the circumstances of the case, to have expected some other person, whether as trustee, committee of a ward of court, an attorney under an enduring power of attorney or otherwise, to have acted on behalf of the servient owner during the relevant user period, or

(b) at least 30 years have elapsed since the commencement of the relevant user period.”.

The purpose of this amendment is to clarify the text and respond to queries raised on the second stage debate about the scope of section 35. This section updates and replaces section 7 of the Prescription Act 1832. It provides that where a servient owner, that is the owner of land against which the user period has commenced to run, is incapable of managing his or her affairs due to mental incapacity, the user period ceases to run. However, this does not apply where the court considers that it is reasonable to have expected some other person to have acted on behalf of the servient owner or where 30 years have elapsed since the commencement of the user period. Unlike earlier legislation, minors are no longer covered by this incapacity provision because under Part IV of the Bill, a minor cannot hold legal title to land. Instead, the title is vested in trustees who will be under a duty to protect the minor's interests and will be liable if they do not do so in a satisfactory manner. This provision does not cover physical incapacity since the person will be capable of handling his affairs or of enlisting the required assistance.

I missed section 32 and the Chairman may rule me out of order but it is the same general issue. Why is the doctrine of lost modern grant being abolished? Is there a policy or reason behind that? I found it a convenient way of asserting certain rights without having them registered.

The doctrine of lost modern grant is in effect a legal fiction.

It is a very useful legal fiction. Yesterday, a constituent told me she had been using a lane for 90 years but nothing was registered. Unless this right is registered in the Land Registry she cannot assert any rights.

That would not apply.

That is the doctrine of lost modern grant.

To prove a right of way, one must prove that one used it.

Now it must be registered by means of a court order.

That is bringing certainty into the future. It does not abolish existing rights.

I advised my constituent to get her solicitor to draw up a declaration by her grandfather. Now, she must go to court. I do not see the reason why one should go to court to prove rights. A statutory declaration was commonplace in conveyancing practice.

It was a recommendation of the commission that this be abolished.

Could the Minister examine this? In my practice I came across it regularly. There was no fraud. People were asserting rights without having to go through the hoops. It helped perfect titles for banks, where there might have been a difficulty with a right of way.

This matter can be examined on Report Stage.

I will examine it.

Amendment agreed to.
Section 35 deleted.
Sections 36 and 37 agreed to.
SECTION 38.
Question proposed: "That section 38 stand part of the Bill."

Is much change proposed in this section, compared to what went before? I should read the explanatory memorandum. I will leave that question.

Question put and agreed to.
Sections 39 to 41, inclusive, agreed to.
SECTION 42.

Amendments Nos. 40 to 42, inclusive, are related and may be discussed together by agreement.

I move amendment No. 40:

In page 34, subsection (2)(a), line 29, after “good,” to insert “and”.

This makes it clear that a building owner who carries out works on a party structure must comply with all elements of section 42(2) and paragraphs (a) and (b) of section 42(3) or the alternative means of obtaining a contribution from the adjoining owner.

Amendment agreed to.

I move amendment No. 41:

In page 34, subsection (2)(b)(i), line 32, after “works,” to insert “and”.

Amendment agreed to.

I move amendment No. 42:

In page 34, subsection (3)(a), line 38, after “subsection (2)(a),” to insert “or”.

I am told there will more than likely be a vote at 4 p.m.

Amendment agreed to.
Section 42, as amended, agreed to.
SECTION 43.

Amendments Nos. 43 and 44 are related and may be discussed together by agreement.

I move amendment No. 43:

In page 35, lines 13 to 16, to delete subsection (1) and substitute the following:

"(1) Where a building owner and an adjoining owner are in dispute in relation to the exercise or proposed exercise of rights undersection 42, either party may apply to the court in a summary manner and the court may give such directions as it thinks fit, and may in particular make an order authorising the carrying out of specified works (a “work order”).”.

I raised this matter in the Seanad. Section 43 relates to section 42 but only allows building owners to apply to the court to authorise the carrying out of specified works. We argue that it should allow either party to go to court. Having re-examined the matter, I still believe this would make sense. What if a building owner does not want to carry out works? A dispute will have two sides and it may well be the case that an adjoining owner wants a building owner to carry out the works but for some reason he or she is not doing so. The amendment would allow either party to go to court to have an order made with regard to section 42 which would make sense. Will the Minister explain why he believes this should not be the case?

The main difference between the text, as it stands, and the proposed amendments is that under the amendments, either party may apply to the courts for a remedy. Section 42(4) contains a possible remedy for an adjoining owner in a case where the building owner fails within a reasonable time to make good any damage caused by the works or to pay reasonable costs or compensation, that is, recovery as a simple contract debt. The court order referred to in section 43 is designed to enable the building owner to apply to the court where an adjoining owner is in dispute with regard to the building owner's right to carry out the works. The onus is on the person seeking access to the adjoining land. It is not clear why the adjoining owner would need access to the court. In such a situation the adjoining owner might simply sit tight rather than applying to the court. I cannot accept the amendments. However, as I stated, the adjoining owner has a possible remedy under section 42(4).

As far as I can make out, both parties have rights under section 42(2). If a building owner has the right to make necessary repairs to an adjoining owner's property, the adjoining owner has the right to have these works done by the building owner. There are two sets of rights and both should be included under section 43.

With regard to the Minister's point on section 44, this has more to do with the nature of the works as opposed to having them done.

That is dealt with under section 42(4).

The adjoining owner's rights are dealt with in section 42(4).

If a building owner fails within a reasonable time to make good damage caused——

I understand what the Minister means but this has to do with costs and expenses only. The adjoining owner's only rights in this section concern costs and expenses.

And compensation.

Yes, but not to have the works done. Perhaps an adjoining owner does not want compensation but to have the building owner to come in and put right the damage caused. Section 42(4)(a) mirrors section 42(4)(b) under which a building owner can recover costs in the same way.

The works proposed are desired by a building owner, not by an adjoining owner.

The works desired by a building owner relate to the actual development. However, there are also works involved in making good the damage caused to the property of the adjoining owner and both parties may have a reason to have them done. Section 43 applies to these works. Both parties should be able to seek to have them done.

That is contained in section 42(4) which states that, where a building owner fails within a reasonable time to make good damages or to reimburse the costs, an adjoining owner may recover the costs, expenses and compensation. I will re-examine the matter.

As the Minister stated, an adjoining owner can receive costs only. However, many will want to have the works done to sort out the matter.

Amendment No. 44 is also being discussed, the point of which is that we understand the works order procedure, as it stands, relates only to repairs to a structure such as a wall. We argue that it should allow for the right of access to a building owner where he or she needs to repair his or her own property but cannot do so without access through the adjoining owner's land. Will the Minister comment on this?

I have sympathy for the amendment because I experienced this with regard to my own property and I am thankful that my neighbours let me in.

Perhaps the Minister will examine both amendments prior to Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 44 not moved.
Section 43 agreed to.
Sections 44 and 45 agreed to.
NEW SECTIONS.

I move amendment No. 45:

In page 35, before section 46, but in Chapter 3, to insert the following new section:

46.--Where a person complains that trees or hedges grown or maintained by a neighbouring owner are of such a height as to constitute an unreasonable interference with any easement enjoyed by the complaining owner, or unreasonably interfere with light whether or not an easement exists in that regard, the person may apply to the court which may make such order, including an order directing the neighbouring owner to remove or reduce the height of any trees or hedges.".

We proposed this amendment when the Bill was going through the Seanad. The reason for it is to highlight an issue which may need to be dealt with in legislation, although this Bill may not be the place for it. An issue is raised with regard to people from one property growing large hedges and not controlling them, about which an adjoining owner cannot do anything except to cut from his or her own side. We suggest such an adjoining owner should have the right to go to court to have the matter dealt with by the neighbour who is growing the hedge.

I am not one to go to court about everything and not sure a court case would be appropriate in such a case. Does the Minister have any plans to introduce a means of adjudicating such as alternative dispute resolution machinery when issues arise between two property owners with regard to hedges, walls or boundaries? Often constituents approach me because they want a neighbour's tree to be cut and want to know how to deal with the matter. I state it is a civil matter between those involved. However, one of the people concerned might be elderly and the other might be extremely unreasonable. This issue would be ideal for alternative dispute resolution machinery to be dealt with by local authorities. I would appreciate hearing about any plans the Minister may have.

I have two cases of a similar nature with regard to overhanging trees and there does not appear to be any way to deal with them. Perhaps this Bill is not the appropriate place in which to deal with the matter but I am interested to hear what the Minister has to say.

I am very much against the advice of my officials on this. Not only have I come across such cases as a solicitor and a politician but I have also been subject to it where I live. I cured the problem by purchasing a piece of property at the back which meant I could take down the 30 or 35 foot tall leylandii trees which were ten feet higher than my house. They were only 15 feet from the back of my house. I am not sure whether I should state this in a public forum, as I do not want to be quoted.

We would never quote the Minister.

I have great sympathy for this issue. I exhorted a previous Minister for the Environment, Heritage and Local Government with regard to fast growing trees such as leylandii to consider whether a condition could be introduced in granting planning permission. While I accept that this would regulate the right of people to grow trees, I empathise with the sentiments expressed by Deputy Tuffy on dispute resolution. My officials state it would mean people going to court every day of the week because this is a significant and common problem. If there were some way we could deal with the issue on the basis of dispute resolution machinery or mediation, we could try to address it. As practising public representatives, we know that the last thing one wants to say to a constituent is that he or she must go to court and prove there is loss of light and a nuisance. I am minded to consider the amendment but I am not sure whether this legislation is the appropriate place in which to deal with it.

I welcome the Minister's comments. Perhaps he might consider contacting the Department of the Environment, Heritage and Local Government. He might also consider dealing with the issue in the same way as the law looks on noisy neighbours, with a fast-track system to the District Court which is less formal and less daunting in terms of the preparation of papers.

There is a role for local authorities in having an arboreal officer in charge of trees and the landscape who would be in a position to facilitate a dispute resolution service. One of the scandals of the Celtic tiger years was the manner in which developers removed trees and ditches in the knowledge that they would face no consequences. Trees cannot be replaced. Even in cases where court actions were taken, the fines were paltry and not in accordance with the importance of the trees, hedgerows and ditches involved. I welcome the Minister's views and hope he will talk to the Department of the Environment, Heritage and Local Government about the matter.

We are all in agreement. As there is a vote in the House, we may come back to this issue afterwards.

Have we had enough of this? We have made great progress.

I suggest we come back another day.

Shall we dispose of amendment No. 45, on which we are all in agreement?

Whether it is an issue for the Department of the Environment, Heritage and Local Government or the Department of Justice, Equality and Law Reform, where do we find the law on overhanging trees? It is in Wylie'sIrish Land Law. It is a land issue, not a conveyancing one. It is one for this Bill and definitely one we all come across frequently.

I will look at the matter because of the particular issues involved.

Amendment, by leave, withdrawn.
Progress reported; Committee to sit again.
The select committee adjourned at 4.15 p.m. until 3 p.m. on Wednesday, 28 January 2009.