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Dáil Éireann díospóireacht -
Wednesday, 6 Mar 1946

Vol. 99 No. 16

Rent Restrictions Bill, 1944—From the Seanad (Committee).

I move that the Committee agree with the Seanad in amendment No. 1 as follows:—

In page 5, Section 2, sub-section (1), lines 43 and 44, the words "and which are or would but for any Act be chargeable" deleted and in lieu thereof the following words "and which by any Act are, or but for any Act would be, chargeable" inserted.

This is a purely drafting amendment of the definition of "rates" in Section 2 (1). The existing wording was considered to be somewhat obscure and the wording which the amendment proposes to substitute is thought to be better and clearer.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 2 as follows:—

In page 5, Section 2, sub-section (1), lines 50 and 51 deleted and in lieu thereof the following inserted:— the expression "statutory tenant" means a person being either—

(a) a person who retains possession of any controlled premises after his contractual tenancy therein (not being a tenancy to which Section 45 of this Act applies) has terminated, or

(b) a person who retains possession of any controlled premises under sub-section (2) or sub-section (3) of Section 39 of this Act, or

(c) a person who retains possession of any controlled premises under sub-paragraph (iii) of paragraph (a), or under paragraph (b), of sub-section (5) of Section 40 of this Act, or

(d) a person who retains possession of any controlled premises under Section 58 of this Act;.

This amendment proposes to define more fully and more explicitly the classes of persons who are or may become "statutory tenants". I am advised, and I am satisfied, that this amendment, though it may not be absolutely necessary, is desirable and will improve the Bill. During a rather long debate on this matter in the Seanad, it was made clear that, under the existing Acts, there is a considerable divergence of opinion as to what precisely a statutory tenant is and as to when exactly a contractual tenant's status is changed to that of a statutory tenant. The amendment will, I think, resolve all doubts on this point. Paragraph (a) of the amendment makes it clear that a person becomes a statutory tenant immediately he retains possession after his contractual tenancy has terminated. Paragraphs (b), (c) and (d) merely specify the persons who are specifically entitled under various provisions of the Bill to retain possession.

Can the Minister say if this amendment will meet the point I raised on Committee and on Report Stage, which he said he would consider? That was the case of a tenant who dies, leaving a widow and family. The widow then becomes the statutory tenant and, after a short time, she dies, leaving the family. In that case, do the children succeed to the statutory tenancy?

Mr. Boland

If the Deputy turns to Section 39 (3), he will find that point is covered:

"(a) In case the statutory tenant leaves him surviving his wife, who was residing with him at the time of his death, she shall be entitled to reclaim possession of the premises under the same terms and conditions as the deceased statutory tenant;

(b) in case the statutory tenant does not leave a wife so residing, such member of the statutory tenant's family so residing or, where there is more than one such member, such one of them as may be agreed upon between them or as may be selected by the court in default of agreement, shall be entitled to retain possession as aforesaid."

I think that that is satisfactory.

It is satisfactory so far as it goes but the specific case I had in mind was that of a husband who died leaving a widow who, under sub-section (3) (a) of Section 39, becomes the statutory tenant. If the widow dies immediately afterwards, then the children should, in the normal way, become entitled to be regarded as statutory tenants but, in a recent decision, a circuit judge held that they were not entitled to statutory tenancies, that the statutory tenancy determined on the death of the widow. So far as I can see, that is not covered by (c) of sub-section (3) of Section 39. In that case, the statutory tenant is a woman. If she dies, her husband gets the tenancy. If he dies, the children get it but that does not cover the case where the statutory tenancy changes from the husband to the widow. So far as I know, on her death, the children are not entitled to the tenancy.

Mr. Boland

She becomes the statutory tenant and her rights then go to whichever member of the family is agreed upon.

A comparatively recent decision of the Circuit Court was to the effect that if husband and wife died, one after the other, the children were not entitled to become statutory tenants.

That was not a decision under this section.

Mr. Boland

There is a new provision here. The law is not as it stood.

I do not think that it makes much difference.

If a widow dies under (b), she certainly does not leave a wife.

Mr. Boland

She would be the statutory tenant, if she got the tenancy from her husband, who had died. If she dies, a member of her family will become statutory tenant.

That is where the statutory tenant dies and does not leave a widow but leaves a family.

Mr. Boland

Paragraph (c) provides:—

"In case the statutory tenant was a woman, paragraphs (a) and (b) of this sub-section shall have effect with respect to her husband and family as they have effect with respect to the wife and family of a statutory tenant being a man."

Neither of those paragraphs covers the case I put to the Minister. That is the case where the widow has become the statutory tenant and she dies. What happens the children?

Mr. Boland

Whichever of them is selected will become the statutory tenant.

It will mean litigation.

Mr. Boland

We went through this section with a microscope in the other House. I should be surprised if there were any omission, because we had experts on rent-restriction law dealing with it.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 3:—

In page 6, Section 3. sub-section (2), lines 17 to 20, paragraph (c) deleted.

This amendment proposes to delete paragraph (c) of sub-section (2) of Section 3, with a view to bringing flats under control. Flats are dealt with in a subsequent amendment.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 4:—

In page 6, Section 3, sub-section (2), paragraph (f), lines 30 and 31 deleted and in lieu thereof the following inserted:—

"(otherwise than for breach of a term of the tenancy) must be notice of not less than three months".

Tenancies from year to year were excluded from the provisions of the Rent Restrictions Act and it was pointed out when we were in Committee, that bogus tenancies, subject to a week's or a month's notice, were expressed to be yearly tenancies. Accordingly, tenants were being treated as if they were not within the terms of the Act, whereas they should have been. I brought in an amendment to make six months, expiring at the end of some year of the tenancy, the requisite notice but, when we went to the other House, we learned that genuine yearly tenancies also terminate on three months' notice. If the Bill were left as it is, it would mean that certain yearly tenants would be excluded and others would be included. To remove that anomaly, I accepted an amendment providing for not less than three months' notice.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 5:—

In page 8, Section 9, sub-sections (2) and (3) deleted and in lieu thereof the following sub-sections inserted:—

(2) The basic rent of premises to which this section applies shall be determined by the court and shall be a rent of such amount as the court considers reasonable, under any given contract of tenancy not being for more than a term of five years, having regard to the basic rents of other controlled (1923 Act) premises and, in case evidence is forthcoming of both the following facts:—

(i) that the premises the basic rent whereof is to be determined were on the 3rd day of August, 1914, held by an occupying tenant thereof under a contract of tenancy not being for more than a term of five years, or that they were not so held but were last so held on a date not being more than three years before the 3rd day of August, 1914, and

(ii) the rent at which they were so held,

then, having regard also to the amount of the said rent.

(3) For the purpose of the determination by the court of the basic rent under this section the tenant shall be deemed to be responsible for the rates.

During the debates in the Seanad, it was mentioned that there is probably a large number of cases under the existing Rent Acts where the parties have been able to agree among themselves as to the lawful rent on the basis of the 1914 rent, which was either definitely known to both parties or about which there was evidence available that satisfied both parties. There have been no proceedings in court for the determination of the standard rent and such cases do not, therefore, come within Section 8 of the Bill. They are Section 9 cases and, under that section as it stands, the court when determining the basic rent is required to have regard only to the basic rent of other controlled (1923 Act) premises. It was suggested that under these provisions there would be a temptation for either the landlord or tenant to bring proceedings under Section 9 in the hope that the court might vary the existing rent even though that rent was calculated on the basis of the known 1914 rent. This amendment provides that the court may, in a Section 9 case, have regard to the 1914 rent where satisfactory evidence is forthcoming in regard to it. This provision should suffice to deter persons, in the kind of cases to which I have referred, from taking a chance by bringing proceedings under Section 9. It is a desirable amendment.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 6:—

In page 8, Section 10, a new sub-section as follows added to the section:—

(2) Sub-section (1) of this section shall not apply to premises the increase in the rateable valuation whereof arises from improvements or structural alterations carried out by the landlord while in possession of the whole of the premises.

Section 10 of the Bill provides that where a house is in one chapter, an increase in valuation will not bring it from Chapter I to Chapter II under which a superior rent would be chargeable. It was pointed out in the Seanad that a house might come into the vacant possession of the landlord and he might then execute substantial repairs with the result that the House would get a higher valuation. In order to encourage him to let the house again and not to do what people mostly do with vacant houses nowadays, namely to sell the house, we are providing in this amendment that where vacant possession has been obtained by the landlord and where substantial alterations or repairs have been carried out, the house will come under the appropriate chapter, in other words, that Section 10 will not apply to such a house and that it will not remain in the chapter in which it originally stood. The amendment may keep such houses in the letting market and encourage landlords to do substantial repairs.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 7:—

In page 9, Section 11, sub-section (2), lines 23 to 28, inclusive (paragraph (e)) deleted and in lieu thereof the following paragraph inserted:—

(e) in the case of premises to which Section 8 of this Act applies, if the landlord has, in the year 1922, expended an amount in excess of one-third of the standard rent, or has, during a period comprising the two years 1923 and 1924, or 1925 and 1926, or 1927 and 1928, expended an amount in excess of two-thirds of the standard rent, on putting the premises into a reasonable state of repair, a sum equal to 15 per cent. per annum of such excess or excesses of expenditure.

This is a purely drafting amendment. It was suggested in the Seanad that it would be desirable to set out specifically the matters in respect of which the lawful addition provided for in paragraph (e) of Section 11 (2) was allowed. Paragraph (e) as it stands merely refers the reader back to a particular provision of Section 8 of the 1923 Act. The amendment mentions the dates definitely rather than referring to sections. I should perhaps also mention that a peculiar thing happened in connection with this section. One pair of years was left out.

There was.

Mr. Boland

I think they were the years 1924-25 or 1926-27. That would be going back 20 years and we might have people making a claim for repairs done 20 years ago.

What about 1929 and 1930? Are they covered?

Mr. Boland

We are not covering them.

That is an extraordinary anomaly. As far as I understand the position at the moment under the Acts expiring, they are not entitled to claim for any repairs for any year since 1928 up to last year. While there may be a case for not going back 20 years I think the Minister should consider cases arising in the years between 1928 and now.

Mr. Boland

I am providing in another amendment for the next five years, but I am not going back for 20 years.

You have gone back in one sense.

Mr. Boland

I have not gone back This is only a drafting amendment specifically setting out what the years were rather than referring to an Act which is now being repealed, by referring to chapters and paragraph. I have not gone back. I have put the actual dates in the Bill rather than go back. The Deputy is making a mistake.

I agree, but from 1929 up to 1944 any repairs executed are not covered.

Mr. Boland

I did all I am prepared to do in regard to repairs. It might lead to a general increase of rents if we were to go back as the Deputy states—an all-round increase in rents which, I think, would not be justified in a period like this anyway.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 8:—

In page 9, Section 11, sub-section (2), after paragraph (f) a new paragraph as follows inserted:—

(g) in case the landlord, during a period comprising the two years 1945 and 1946, or 1946 and 1947, or 1947 and 1948, or 1948 and 1949, or 1949 and 1950, expends an amount in excess of two-thirds of the basic rent of the premises on putting the premises into a reasonable state of repair, a sum equal to 15 per cent. per annum of such excess or excesses of expenditure.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 9:—

In page 11, Section 15, at the end of the section a new sub-section as follows inserted:—

(3) If, on an application to the court under this sub-section by the landlord or tenant of premises to which Section 14 of this Act applies, the court is satisfied that the basic rent of the premises either exceeds, or falls short of, by an amount exceeding one-fifth of the basic rent, the rent (in this sub-section referred to as the notional rent) which, if the premises were premises to which Section 16 of this Act applies, would be determined by the court as the basic rent thereof, the basic rent of the premises shall be determined by the court and shall be the amount which, in the opinion of the court, represents the notional rent, and thenceforth the premises shall, without prejudice to the previous application thereto of paragraph (a) of Section 23 of this Act, become premises to which Section 16 of this Act applies as if such determination had been made under that section.

This deals with another point which was raised in the Seanad. Some Senators mentioned that they knew of cases in which people had let houses to relatives or to particular friends at nominal rents. If they were to be held to that rent for the future, they would be getting a rent which would be altogether inadequate. On the other hand a Senator mentioned a case in which the rent was unduly high. I think the Senator in that case said that the house was occupied by some legation. Obviously it would not be fair in cases like that to keep to the rent that was being paid on the particular date when that situation existed. There would not be many cases but its would be rather a hardship to a man who had set a house for quarter its value if he were kept to that rent.

These people might have more money than others.

Mr. Boland

Some of them had and some of them had not.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 10:—

In page 11, Section 16, sub-section (2) deleted and in lieu thereof the following sub-section inserted:—

(2) The basic rent of premises to which this section applies shall be determined by the court as follows:—

(a) in the case of premises consisting of a separate and self-contained flat or tenement forming part of any buildings which, after the 7th day of May, 1941, are or which at that date were being bona fide reconstructed by way of conversion into two or more such flats or tenements, the basic rent of the premises shall be the rent, which, in the opinion of the court, the immediate landlord of an occupying tenant of the premises might, if the premises, as reconstructed, had been in existence in the year ending on the 7th day of May, 1941, reasonably have expected in that year under any given contract of tenancy not being for more than a term of five years;

(b) in any other case, the basic rent shall be the rent which, in the opinion of the court, the immediate landlord of an occupying tenant of the premises might, in the year ending on the 7th day of May, 1941, reasonably have expected under any given contract of tenancy not being for more than a term of five years.

Amendments Nos. 10 and 12 contain the provisions under which the lawful rents of newly-controlled flats will be determined and I suggest to the House that they may be conveniently discussed together.

The first amendment provides in paragraph (a) for the manner in which the basic rent of the flat will be determined. In effect, all that is done is to extend the principle of the existing Section 16 by taking the year ending on the 7th May, 1941, as the period by reference to which the basic rent will be determined. On the assumption that the flat, as now reconstructed, was then in existence, the court will fix the basic rent as the rent which the landlord might in the year in question reasonably have expected to obtain from an occupying tenant on a letting for a term of not more than five years. This, I think, is the fairest standard to apply for the determination of the basic rent and it fits in with the general scheme of Chapter 2 of Part II.

The more difficult part of this problem is to determine what addition to the notional fair 1941 rent should be allowed, in view of the increased cost of reconstruction work as compared with the 1941 or pre-1941 cost of such work. The second amendment deals with this by providing that the landlord should be entitled to a lawful addition reckoned as 8 per cent. per annum of the portion of the total cost of reconstruction which might be attributed to the particular flat. The amendment provides that, for this purpose, the total cost should be apportioned between the different flats in the proportions that the rateable valuation of each flat bears to the total rateable valuation of the building or buildings as reconstructed.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 11:—

In page 12, Section 17, sub-section (2), after paragraph (d) a new paragraph as follows inserted:—

(e) in case the landlord, during a period comprising the two years 1945 and 1946, or 1946 and 1947, or 1947 and 1948, or 1948 and 1949, or 1949 and 1950, expends an amount in excess of two-thirds of the basic rent of the premises on putting the premises into a reasonable state of repair, a sum equal to 15 per cent. per annum of such excess or excesses of expenditure;.

This is the same as No. 9.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 12:—

In page 12, Section 17, sub-section (2), at the end of the sub-section a new paragraph as follows inserted:—

(f) in the case of premises to which paragraph (a) of sub-section (2) of Section 16 of this Act applies, a sum equal to 8 per cent. per annum of such amount as bears to the total cost of the reconstruction of the buildings referred to in that paragraph the same proportion as the rateable valuation of the premises bears to the rateable valuation (or the total of the rateable valuations) of the said buildings as reconstructed.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 13:—

In page 12, Section 19, line 60, the word "fourteen" deleted and the word "twenty-eight" inserted in lieu thereof.

This is a minor amendment, the purpose of which is to extend from 14 to 28 days the period within which the landlord must furnish any information in his possession or procurement which the tenant may require for the purpose of determining the basic rent or of having it determined by the court.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 14:—

In page 13, Section 19, two new sub-sections as follows added to the section:—

(2) There shall be implied in every contract, made on or after the operative date, for the sale of any interest in controlled premises (if not already expressly included) a provision binding the vendor to give to the purchaser any information in the vendor's possession or procurement requisite to enable the purchaser to determine the basic rent of the premises or any part thereof.

(3) Every stipulation in a contract for the sale of controlled premises, whereby the purchaser is precluded from making requisitions as to the matters mentioned in sub-section (2) of this section, shall be void.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 15:—

In page 14, Section 20, sub-section (5), line 31, "or (f)" deleted and in lieu thereof the following: "(f) or (g)" inserted; and in line 32 "or (d)" deleted and in lieu thereof the following "(d) or (e)" inserted.

This amendment is consequential on amendments Nos. 8 and 11.

Its object is to enable the court, on the application of the tenant, to disallow in whole or in part the amount of any increase of rent demanded by the landlord as a lawful addition in respect of the amount by which his expenditure on repairs may have exceeded two-thirds of the basic rent in any of the pairs of years mentioned in the two new paragraphs. The court, if satisfied that the expenditure in respect of which the increase in claimed by the landlord was not incurred or was unnecessary in whole or in part, may disallow or reduce the increase accordingly as from such date as the court thinks fit.

This provision to safeguard the tenant's interests is clearly necessary.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 16:—

In page 15, Section 22, sub-section (2), lines 2 and 3, the words "by the production of a certificate of the sanitary authority or other evidence" deleted.

The purpose of amendments Nos. 16 and 17 is to ensure that the certificate of the sanitary authority will be merely prima facie, and not conclusive, evidence in any proceedings under Section 22 for reduction of the rent on the ground that the premises are not in all respects in good and tenantable repair.

The section as it stands is not quite clear on the point but it does suggest that the certificate of the sanitary authority might be regarded as conclusive evidence and this, I think, is undesirable. The court should be able to hear any other relevant evidence before deciding the issue.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 17:—

In page 15, Section 22, after sub-section (2) a new sub-section as follows inserted:—

(3) In any application under this section, a certificate of the sanitary authority that the premises to which the application relates are not in all respects in good and tenantable repair shall be prima facie evidence of the facts so certified.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 18:—

In page 15, Section 22, sub-section (4), lines 31 and 32, the words "if the authority as the result of such application issues a certificate" deleted and in lieu thereof the words "on an application made to the court under this section the court may order that" inserted.

This amendment makes it necessary for the tenant to secure an order from the court authorising him to deduct from the rent the amount of the fee which he pays to the sanitary authority for its certificate for use in proceedings under Section 22.

Under the existing provisions of the section the tenant has an automatic right to deduct the amount of the fee from the rent and this, I think, is open to objection.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 19:—

In page 17, Section 28, sub-section (4), after the word "reward" in line 8 the words "or is remunerated directly or indirectly out of the funds of any body corporate or unincorporated body of persons of which the tenant is or was a member or to the funds of which he has been a subscriber" inserted.

The object of this amendment is to try to secure that the undesirable type of person will not be able, by masquerading under the guise of an alleged society or association, to circumvent the provisions of Section 28(4) of the Bill, which prevent any person, other than a solicitor, from acting for reward or gain on behalf of a tenant on an application for a provisional order under Part III of the Bill.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 20:—

In Section 29, sub-section (1), paragraph (e), page 17, in line 46, the words "he may for the purposes of this Act" deleted and the words "then, for the purposes of this Act, he may by the provisional order provisionally" inserted in lieu thereof.

The object of this amendment is to secure that the justice's apportionment of the rateable valuation under paragraph (e) of Section 29 (1) will be provisional. It brings the provisions of paragraph (e) into line with the other provisions of the section and is really nothing more than a drafting amendment.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 21:—

In page 17, Section 30, sub-section (1), line 56, the words "without prejudice to any other manner of service" deleted and at the end of the sub-section the words "under the rules of the District Court for the time being" added.

This is a minor amendment, which proposes to delete the words "without prejudice to any other manner of service" in sub-section (1) of Section 30. It is considered that these words are not really necessary. The words which the amendment proposes to add at the end of the sub-section are intended merely to make it clear that copies of a provisional order are to be served in the same manner as a District Court summons.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 22:—

In sub-section (1), paragraphs (a), (b) and (c), page 18, deleted and the following paragraphs inserted in lieu thereof:—

(a) if on the hearing of the application it appears to the court that the premises are not small premises, the court shall revoke the provisional order with effect retrospectively from the date of the making thereof;

(b) in any other case, the court may, as it thinks proper—

(i) by order confirm the terms of the provisional order with or without modification, or

(ii) revoke the provisional order and make such new order in relation to the premises as the circumstances may require;

(c) if an order is made under paragraph (b) of this sub-section, then, as on and from the making thereof and notwithstanding anything in any other provision of this Act,—

(i) the said order shall have effect as the final determination of the District Court in respect of the matters to which the said order relates,

(ii) the provisional order shall cease to be in force, and

(iii) for the purpose of the application of Section 20 of this Act the tenant shall be deemed to have entered into an agreement with the landlord to pay in respect of the premises a rent equal to the lawful rent of the premises as determined by the said order made under paragraph (b) of this sub-section.

This is, in the main, a drafting amendment. It recasts paragraphs (a), (b) and (c) of sub-section (1) of Section 31 in what are considered to be better and less rigid terms than the existing paragraphs.

The only change of any substance which the amendment makes is that it gives the justice, when dealing with an application by the landlord under Section 31, the additional power of revoking the provisional order and substituting for it such new order as he considers the circumstances may require. Under the existing provisions of paragraph (b), he can only confirm or vary the provisional order.

The amendment also remedies a drafting defect in the existing paragraph (a) by deleting sub-paragraphs (ii) and (iii). Provisions identical with these two sub-paragraphs furnish the grounds for the making of a provisional order under paragraph (b) of sub-section (1) of Section 29 and it is clearly wrong that the same provisions should be the ground for subsequently revoking the order under paragraph (a) of sub-section (1) of Section 31.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 23:—

In page 21, Section 39, sub-section (2), line 46 deleted and in lieu thereof the words "entitled to retain possession of the premises and to hold from the landlord on the" inserted instead.

This is simply a drafting amendment, which is rendered necessary by the new definition of "statutory tenant" provided in amendment No. 2. No change of substance is proposed in the sub-section.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 24:—

In page 22, Section 40, sub-section (3), paragraph (a) deleted and the following paragraph inserted in lieu thereof:—

(a) a statutory tenant shall not, as a condition of the assignment or giving up possession of controlled premises, ask or receive the payment of any sum, or any other consideration by any person other than the landlord.

This is really only a drafting amendment. Its object is to state more explicitly what paragraph (a) of sum-section (3) of Section 40 clearly intends, viz., that a statutory tenant shall not, as a condition of the assignment or giving up possession of controlled premises, ask or receive the payment of any sum, or other consideration, by any person other than the landlord.

There is no specific mention of "assignment" in the existing draft of paragraph (a), although it was contemplated that the paragraph should apply also to any attempts by a statutory tenant to obtain money on assigning.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 25:—

In page 22, Section 40, sub-section (3), at the end of the sub-section a new paragraph as follows inserted:—

(d) paragraph (a) of this sub-section shall not apply to premises lawfully used wholly or in part for the purposes of any business, trade or profession.

This is an amendment on which we had a long debate in the Seanad. As the Bill stands, apparently a person could not sell his goodwill. If a person were a statutory tenant, either wholly or in part, of a business premises, he was not entitled to sell his interest, as the section prevented him from taking any payment on giving up possession. It was thought that such persons were covered by the Landlord and Tenant Act, 1931, in this matter, but that is defective also and will need to be amended. In the meantime, we have provided that a person in such a position, holding a statutory tenancy either wholly or in part in a business premises, can take payment on giving up the tenancy.

I hope this year to bring in a Bill to amend the Landlord and Tenant Act, 1931, so as to make that point permanently secure. There was a long debate on that amendment. One Senator convinced us all that it was right, though it would appear, as the 1923 Act stood, that landlords could have refused; at least, it was illegal to charge any money where there was a statutory tenancy. But it was not exercised. The fear was that once it was exposed there might be a flood of these things happening. Therefore, we thought it well to make it quite clear that a business premises was not to be taken, that the statutory tenancy in the business premises was not to be put in the same position as in an ordinary dwelling.

Do I understand that the effect of this amendment is to legalise the sale of what we call a residential business premises—that is, where you have a business and the person resides——

Mr. Boland

Yes, where it is mixed.

The fear was expressed in the Seanad that any such transaction which had taken place prior to this was not in accordance with the existing law. Was that the position?

Mr. Boland

That is what it appears to be.

It is very necessary to do this, so?

Mr. Boland

Yes. I do not know whether there were many cases or not. We were told there were some, anyway.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 26:—

In page 22, Section 40, sub-section (4), paragraph (b), line 43, the words "shall not be unreasonably withheld" deleted and in lieu thereof the words "may be withheld only if greater hardship would, owing to the special circumstances of the case, be caused by granting the consent than by withholding it;" inserted.

We had a big debate on this, too. In the Dáil I accepted an amendment—I think it was Deputy McGilligan who moved it.

I moved it for him.

Mr. Boland

The section provides that a statutory tenant may not assign the premises or any part thereof without the consent in writing of the landlord, which consent must not be unreasonably withheld. The Seanad amendment proposes that the consent may be withheld only if greater hardship would, owing to the special circumstances of the case, be caused by granting the consent than by withholding it. That is what was put in. Probably it is a better form of words. I am satisfied that this is a fairer way to put it.

It might have been as well to leave it as it stood originally.

Mr. Boland

We discussed the matter in the Seanad at great length. I do not say that exhaustion made me give in, but I am satisfied that this is a better form of wording. I thought it was better to make the change.

On whom will the onus be put?

Mr. Boland

On the court.

So far as the landlord and the tenant are concerned, on whom will the onus be put to prove hardship?

Mr. Boland

I suppose both will make a case. One will say it is a great hardship on him and the other will also try to make out a case of hardship and the court will have to decide.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 27:—

In page 22, Section 40, at the end of the section a new sub-section as follows inserted:—

(5) Where, on or after the operative date, controlled premises are lawfully assigned by the statutory tenant (in this sub-section referred to as the assignor), then, in the absence of any express agreement between the landlord and the assignee, the following provisions shall have effect:—

(a) if the premises are, at the date of the assignment, being lawfully used wholly or in part for the purposes of any business, trade or profession, the assignee shall, from the said date, be deemed to hold the premises in accordance with whichever of the following sub-paragraphs is applicable:—

(i) in case evidence is forthcoming that the premises were, immediately before the creation of the statutory tenancy therein, held by the contractual tenant thereof under a tenancy from year to year or for a term of years or other certain period (not being less than one year), or depending on the fall of a life or any other uncertain event, the assignee shall be deemed to hold the premises from the landlord under a tenancy from year to year, terminable, on or after the expiration of the first year thereof, by either party by two months' notice expiring on a gale day and, subject thereto, on the same terms and conditions as the assignor;

(ii) in case evidence is forthcoming that the premises were so held under a contract of tenancy to which sub-paragraph (i) of this paragraph does not relate, the assignee shall be deemed to hold the premises from the landlord under a contract of tenancy of like duration as the contract of tenancy under which they were so held, and, subject thereto, on the same terms and conditions as the assignor;

(iii) in any other case, the assignee shall be entitled to retain possession of the premises on the same terms and conditions as the assignor;

(b) if the premises are premises to which paragraph (a) of this sub-section does not relate, the assignee shall be entitled to retain possession of the premises on the same terms and conditions as the assignor.

This amendment is consequential on amendment No. 25 in order to define the conditions under which the assignee of a statutory tenant's interests should hold the premises from the landlord. Briefly, the main object of the somewhat elaborate provisions of this new amendment is to secure that the assignee will not hold the premises on any better terms than were enjoyed by the tenant holding under the contract of tenancy which subsisted immediately before the statutory tenancy was created in the premises. Accordingly, in the case of business premises, sub-paragraph (i) of paragraph (a) provides that where the contract of tenancy had been a yearly tenancy or better, the assignee shall be deemed to hold the premises from the landlord on a tenancy from year to year, terminable on or after the expiration of the first year by two months' notice.

This latter provision will ensure, having regard to the provision of paragraph (f) of Section 3 (2), that the premises shall remain subject to control. If it was left to three months it would be outside control. Where the premises were not originally held under a yearly or better tenancy, sub-paragraph (ii) provides that the assignee shall be deemed to hold under a contract of tenancy of like duration as the original contract. Thus, if the original contract were a weekly tenancy, the assignee will hold as a weekly tenant. Sub-paragraph (iii) provides that, in any very exceptional case which might not be covered by the other two sub-paragraphs, the assignee shall hold the premises as a statutory tenant. Paragraph (b) deals with dwelling-houses and there, principally because of the fact that there can be no valuable consideration as a condition of the assignment of a statutory tenant's interest in such premises, it is simply provided that the assignee shall hold as a statutory tenant.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 28:—

In page 23, Section 45, line 39, after the word "let" the words "bona fide” inserted.

This is a minor amendment. It proposes the insertion of the words "bona fide” after the word “let” in line 39 of Section 45, which provides for the non-application of Sections 37 and 38 to lettings for temporary convenience. I think it was Deputy O'Sullivan who tried to get me to accept that here and he gave me a bit of a shock. In the other House Senator Duffy took up the cudgels.

It does not make any great difference—no difference whatever.

Mr. Boland

No, it does not, but, anyway, I accepted it.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 29:—

Section 49. The section deleted.

This deals with rates on unoccupied houses. The reason we had it in the Bill is because it was in the 1923 Act, but it was considered more appropriate to a Local Government Act and the Minister for Local Government is bringing in an amendment dealing with this aspect on the Report Stage of the Local Government Bill. That is why we are deleting this section.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 30:—

In page 25, Section 51, sub-section (1), line 8, the word "pecuniary" deleted and in lieu thereof the word "valuable" inserted.

This amendment proposes to widen the scope of the restriction which sub-section (1) of Section 51 places on the taking of a fine or premium as a condition of the grant or renewal of a tenancy or sub-tenancy of controlled premises by substituting the word "valuable" for the word "pecuniary". It was suggested that instead of giving money something like a piece of furniture at an enhanced price might be given and in order to prevent that we put in "valuable" instead of "pecuniary". It will tighten the thing up.

Question put and agreed to.

Mr. Boland

I move that the Committee agree with the Seanad in amendment No. 31:—

In page 26, Section 54, at the end of the section a new sub-section as follows added:—

(4) Every regulation made by the Minister under sub-section (1) of this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by either House of the Oireachtas within the next subsequent 21 days on which that House has sat after the regulation is laid before it annulling the regulation, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the regulation.

This applies to any regulation made by the Minister. It will be laid before the Dáil and the Seanad for the usual period of 21 sitting days.

Question put and agreed to.
Agreement with Seanad amendments Nos. 1 to 31 reported and report agreed to.
Seanad Éireann to be notified accordingly.
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