I support Deputy O'Donnell's amendment for two reasons. I acknowledge that if one moves the goalposts from 20 to 15 years, without addressing the fact that landlords will have a motive to avoid the limit whenever a limit occurs, one is ignoring realities. If someone is entitled to relief by virtue of a long tenancy or a long occupation of a premises, it is important for the law to be practical and to recognise the reality that landlords throw tenants out in the 19th year or, if we change this to 15 years as proposed in this amendment, that people would be thrown out in the 14th year. There is no doubt this would happen.
In many cases landlords own premises which someone has occupied for 19 years. If they allow this person to stay another six months they will have a 35-year lease. The tenant and the landlord may not want a 35-year lease, but if the landlord does not throw the person out he will lose the right to get possession of his property for 35 years. As legislators we have a duty to face up to that problem.
The Minister specifically stated that the problems arising from the Mespil Estate controversy should be dealt with and that her Department would do so. She also said that the report of a working party would be made available to Dáil Éireann stating how the problem would be addresssed. Unfortunately, we have not seen that report yet and we await the Minister of State's reply about the proposals to deal with such cases.
While we debate this issue people are being thrown out of their homes in order to avoid the legislative timeframe we have established. Many landlords have no desire to throw out their tenants but they are doing so because of the law. As a solution to this, and I believe Deputy O'Donnell's amendment is the only way to deal with this issue, I suggest that if a judge or a court has ample material on which to decide that a person is being thrown out in order to avoid the entitlement to relief, such a determination should not be effected to deny someone relief.
In the unfair dismissals legislation which was recently passed in the House a new provision was inserted which stated that if the fixed term contract was being used as a device to avoid the unfair dismissals Act, it should be disregarded, although people were excused from the operation of the Unfair Dismissals Act, 1977. This is the right way to proceed. If a court is satisfied that the landlord is only throwing out the tenant in order to avoid the time limit or 15 or 20 years, it should be entitled to disregard the fact that the necessary statutory period for the tenant has not yet been clocked up.
This situtation is real. On many occasions a tenant in a flat in the Mespil Estate, for example, may write to the landlord and ask that they be allowed to remain in the building. They will pay the landlord whatever rent he wants, but they do not want to move. The landlord may write back and say that his legal advisers have stated that he must get them out or he will lose possession of the premises for 35 years, perhaps not to the person in question, but to the people to whom they will their lease if they should die. If someone can prove that the landlord is not trying to redevelop the premises or to get the premises back for his own use, but to change tenants in order to avoid the operation of the law, the court should disregard the fact that the 15 or 20 year period has not yet been clocked up and give the tenant relief.
Since the Mespil Estate controversy I have considered other ways to deal with this issue. It has been pointed out that if one keeps changing the period to 10, 15 or 20 years the landlord will always have an incentive to push the button before the minimum statutory period is provided. The court must be given the power to disregard this. The landlord should explain to the court why he is throwing out an elderly woman if he does not require the premises for redevelopment. The tenant should not have to prove what is going on in the landlord's mind. If the onus of proof is cast on the landlord, he will be willing to allow an elderly tenant to remain in the premises.
This amendment is mirrored by amendment No. 11. The committee should be aware that there are many cases where elderly people want to opt out of a tenancy. Deputy Shatter has proposed an opt out arrangement in business tenancies, but there are many cases where the tenant wants to opt out of a residential tenancy. For example, the tenant may be happy to take a life tenancy of a premises for himself or herself and to exclude the possibility that his or her estate would be entitled to the rest of a long lease for 20 or 35 years. Therefore, if one introduces this presumption against landlords who throw out longstanding tenants, it should be mirrored by a right for tenants to contract out of the Act, provided they are not being exploited. Deputy O'Donnell's proposal is balanced. On the one hand the Deputy is suggesting that tenants should be given the presumption that their tenancy is, in certain circumstances, being determined to exclude the operation of the Act, but on the other they should be given the right, subject to court supervision, to contract out of the Act so that they do not have to get a 20 year tenancy, or whatever.
At present there are people across this city, not only in the Mespil Road flats, in their seventies and eighties, who wish to spend the remainder of their lives in the house in which they live. They would be horrified at the prospect that if they stay on for another six months they will go past the 20-year period and then become entitled to a 35-year lease. This would be most unfair on the landlord also, because it means that such individuals can leave the tenancy in their will to a nephew, niece or stranger or assign it to a third party, thereby preventing the landlord from recovering possession of the premises. This is unfair. A balance has to be fairly struck and Deputy O'Donnell's proposal addresses this issue.
It would be regrettable if the landlord and tenant legislation was to be presented to the Dáil in circumstances where we do not concentrate on what is a manifest injustice taking place all around us every day of the week. There are people being cleared out of houses at present to avoid the operation of the law.
We cannot afford to wait for a long period for inter-departmental committees to present a solution. The Minister, and the Minister of State, should be able to deal with this problem in this Bill. The Minister advised that the report of the working party would be presently available. If it is not available I ask for an assurance from the Minister of State that there will be an amendment on Report Stage to deal with the findings of that working party.
An injustice of this kind cannot be allowed to continue while waiting for the report of another committee. Landlord and Tenant Bills are not two a penny and I would be surprised if there was a second Bill, or whatever, by the end of this year. I do not believe that the time of this committee will be available for another extensive outing on landlord and tenant law in the foreseeable future. Therefore, I ask the Minister to indicate that this issue will be dealt with in this legislation. Failure to do so will result in a major injustice.
