Committee on Finance. - Rent Restrictions (No. 2) Bill, 1960 [ Seanad ]— Committee Stage (Resumed).
Debate resumed on amendment No. 42:
Before subsection (2), page 21, to insert the following subsection:
"(2) In considering whether it is reasonable to make an order for the recovery of possession of a controlled dwelling, the Court shall have regard to the extent, if any, to which the conduct of the landlord contributed to the existence of the grounds upon which he relies in support of his application for recovery of possession."—(Minister for Justice).
Arising out of the points which I made during the debate on the last occasion in regard to landlords creating a situation in so far as they practised various methods to get rid of tenants, one is refusing to take rents. It is because of that point that the Parliamentary Secretary has included the subsection in the Bill. The Parliamentary Secretary should go a little further. On the last occasion he mentioned that where the landlord refused to take rent the tenant should send the rent by postal order. I know of one tenant who regularly sends his rent by postal order. He has to undergo the expense of sending it by registered post and also to the expense of having duplicates typed which describe the purpose of the postal order. He has to do that because the landlord is an unscrupulous person. The total cost to the tenant is approximately 3/- per week and he was sending a postal order for several years.
Could the Minister add to the section a provision that where a tenant had to incur expenses or costs resulting from the landlord's action, he could recoup these costs from the landlord? It is possible that a tenant may have to go to a solicitor for advice resulting from the landlord's refusal to take the rent, particularly in cases where an unscrupulous landlord thinks that by some form of blackmail, he may get the tenant to accept something ridiculous. The tenant should then be entitled to recover his solicitor's cost.
I am aware of a case where a landlord who was seeking possession of a controlled office made the tenant a ridiculous offer of about one-tenth of its value. Because the tenant refused the offer, not only did the landlord refuse to accept the rent but he also went to the extent of blackmail by threatening to go to court with some story that the tenant had been in court for an immoral offence on some previous occasion. Not satisfied with not taking the rent, he tried to use blackmail to force the tenant to accept a ridiculous offer. The Parliamentary Secretary should realise that there are some landlords who are specialists in corruption and who believe, as I saw in an English paper recently, that there is one way to succeed, that is, to be unscrupulous and to have no heart. There are gentlemen of the landlord type who are most unscrupulous. That is why I ask the Parliamentary Secretary to go further in this section.
If the landlord thought that he would have to pay the costs incurred by the tenant due to his own action, he might be slow to threaten the tenant. As matters stand, what has he to lose? He will chance his arm and not take the rent and will go to court then and look for possession, saying to himself that even if he does not get possession, he will lose nothing and that the whole thing is worth a try. If the landlord knew he might have to pay certain expenses undertaken by the tenant, it might act as a deterrent.
The landlord is a gentleman who is well advised and who knows the law. I heard of a case this morning in which some builder sold property and did not carry out his end of the bargain. He asked the tenants to form a society to which they were all to subscribe £1. When he did not carry out his contract and when one of the tenants brought him to court, he was able to say that this was a utility society, that the tenant was a member of it and that therefore he could not sue himself. There is no end to what some of these gentlemen will do.
This morning a lady came to me outside the City Hall asking what she was to do. The landlord had refused to carry out repairs and for that reason her rent had not been accepted for five weeks because she had complained to the Corporation of his refusal to do the repairs. He had collected the rent from the other tenants but had refused to accept hers, saying that if she wanted to pay it, she could bring it to his house. He was going to force her to travel the three miles back and forth once a week because that was his way of putting on the squeeze. There are rogues of the first order amongst the landlord community.
I want this subsection to provide more protection for the tenant. I have so much experience of those gentlemen that, even if the Parliamentary Secretary says that there are only a few who are bad, I reply to him that it takes only a few to upset a world. It took only Hitler, Mussolini and Stalin to upset this world. A few unscrupulous landlords can cause an awful amount of hardship. That is why I urge the Parliamentary Secretary to ensure that if these people have no hearts, they will not be allowed to get away with it. I am satisfied with the subsection but it does not go far enough.
I am afraid that Deputy Sherwin is a little less than gracious in this matter. This amendment had been inserted by me to meet a certain situation which he described to us on the Second Stage, to try to close a loophole that would be available to unscrupulous landlords. I think it should be sufficient to achieve what Deputy Sherwin wants, particularly if he would do as I suggested when we were discussing a somewhat similar point before, that is, indicate to tenants what their rights are. I think he was exaggerating a little in the matter of the postal order. The expense of sending the rent by postal order is quite neligible. The tenant would retain the counterfoil as evidence that he had remitted the rent. I think that would completely meet the case. Of course, the safest way for the tenant is to save the rent and have it available.
That is not possible for poor people.
Of course it is. If he has to have it available every week for the landlord, there should be no insuperable difficulty in putting it by. I am satisfied that in this amendment we are going as far as we possibly can. To suggest that the cost of consulting a solicitor should be recouped from the landlord is not practical and is wrong in principle. If I take legal advice no one would suggest that I should recover the cost from another person. If I take the case to court, it is within the competence of the court to award me all the costs it likes and to award damages, if necessary. I think Deputy Sherwin is looking a gift horse in the mouth. We have dealt with the situation as far as we can and it is reasonable to assume that the tenants will be adequately protected.
Deputy Sherwin seems to think that unscrupulous landlords can get away with anything they like. They can, if people are not sufficiently vigilant to look after their own rights. If they are not, there is very little we can do to help them. We place all the protection of these Rent Acts on the Statute Book. Further than that we cannot go. We cannot compel them to avail themselves of the rights we give them.
Sometimes it is too expensive to avail of the rights.
Under the provisions of these Acts it need never be.
If you go to a solicitor at all it will cost you money, and the landlord knows that.
Even for the very poorest type of tenant Part III of the Bill provides a simple, inexpensive procedure. Such tenants need not go near a solicitor at all but can go straight to the District Court Office.
Amendment agreed to.
Section 29, as amended, agreed to.
Section 30 agreed to.
I move amendment No. 43:—
In subsection (3), page 22, to delete lines 9 to 18 and substitute:
"dies leaving him surviving his wife or any member of his family who was bona fide residing with him at the time of his death and either—
(i) in the case of an intestacy, the tenancy of the non-statutory tenant terminates before administration is granted in respect of his estate or during administration of his estate, or
(ii) in any other case, the tenancy of the non-statutory tenant terminates while the executor is not in occupation of the dwelling."
The object of this amendment is to extend the protection against eviction given to the widow and family of a deceased non-statutory tenant in a case where the administrator of the deceased is in occupation of the dwelling or where the executor of the deceased is not in occupation. These extensions were suggested by Deputy Declan Costello on Second Reading.
I think it can now safely be said that the spouse and family of a deceased non-statutory tenant have been placed in exactly the same position, so far as the right to remain in possession is concerned, as the spouse and family of a deceased statutory tenant.
As amendment No. 44 is related to amendment No. 43, the two may be discussed together.
I welcome these amendments. The position had been that, due to the interpretation of the 1946 Act in the Irish Courts, following similar interpretations of similar legislation in the English Courts, certain anomalies and discrepancies had grown up between the rights of persons, when the tenant died intestate and when the tenant left a will or when the deceased tenant left an administrator who was in occupation of the premises when he had administered the estate. In these circumstances it was most desirable that the anomalies should be cleared up. It appears to me that the amendments that have been proposed will now bring a degree of uniformity into the position and enable tenants to know exactly their rights on the death of a non-statutory tenant. It appears to me that these amendments should be passed.
Amendment agreed to.
I move amendment No. 44:—
In subsection (3), page 22, to delete "intestate" in line 37 and to delete lines 41 to 47 and substitute:
"(i) in the case of an intestacy, the tenancy of the non-statutory tenant terminates before administration is granted in respect of her estate or during administration of estate, or,
(ii) in any other case, the tenancy of the non-statutory tenant terminates while the executor is not in occupation of the dwelling,".
Amendment agreed to.
I move amendment No. 45:
In subsection (5), page 23, to delete lines 19 to 29 and substitute the following paragraphs:
"(b) a person adopted under the Adoption Act, 1952, shall be considered the legitimate offspring of the adopter or adopters,
(c) subject to the foregoing paragraph, an illegitimate person shall be considered the legitimate offspring of his mother and reputed father, and
(d) unless the relevant bona fide residence with the tenant was a residence which began less than six years before the tenant's death, a person in loco parentis to another shall be considered the parent of that other.”
This amendment deals with adopted and illegitimate children who are members of the family of a deceased tenant. The object of this amendment is to delete the requirement that an adopted child or an illegitimate child must be living with the tenant for a period of six years before the death of the tenant. The necessity for this amendment arose in this way. At the time the Conroy Commission reported the Adoption Act of 1952 had not been passed. Since that Act it has been settled policy to treat adopted children exactly the same as if they were the natural children of their adopters. It would be inconsistent with that policy to require any residence qualification for adopted children. Therefore, we propose to delete that six years' residence qualification, and I think it is only proper that we should delete it in the case of illegitimate children also. If the House adopts this amendment the position will be that the six years' residence qualification will apply only where the tenant was in loco parentis to the person concerned.
Amendment agreed to.
Section 31, as amended, agreed to.
Question proposed: "That Section 32 stand part of the Bill."
This is exactly the same as the previous Act?
Question put and agreed to.
Sections 33 to 36, inclusive, agreed to.
Question proposed: "That Section 37 stand part of the Bill."
There is one type of tenant those of us connected with local authorities must have met, and that is the old person who is not able to pay the rent of a new house and who is, therefore, in a somewhat peculiar position. I think almost every local authority from time to time, when it comes to considering the rehousing of the people in any area, meets the case of the old person who is just not able to pay the rent of the new houses being built in that area. I should like to try and find some way of meeting that type of case without cutting across the whole spirit of the Bill and the difficulties of achieving uniformity in it. The Parliamentary Secretary has to some extent come somewhere near that aim when, in Section 37 (b), there is reference to "a temporary necessity of the landlord or the tenant." But I do not think you could describe a case that will arise for the remainder of an old person's life as being "a temporary necessity."
Houses which would not be by any means suitable, or even possible, for an ordinary family might be a possible means of meeting the case I have in mind if we excluded them only for the period in which they were occupied by the old person. But, quite clearly, if you just did that simpliciter in the Bill, you would open a wide field for evasion that would be quite impossible to cover. However, I think we could put a stop on that evasion and, at the same time, do what we want by providing that that type of letting for an old person, purely for the life of that old person —you can define “old person” if you like—would be outside the scope of the Bill if, but only if, at the time the arrangement was made the housing officer of the local authority certified that in his opinion it was desirable that there would be this type of special accommodation for the old person concerned.
Every local authority that I know meets with, and has trouble in trying to solve, this type of housing problem. I cannot see how, if the consent of the housing officer is required at the time the letting is made, evasion would take place. I think there is a possibility of being able to ensure in that way that something would be done to meet the case of the old age pensioner who perhaps has no family to whom he can turn in his old age and who has to live in certain circumstances on his own. I think it would ease the difficulties of the landlord. The fact that the consent of the housing officer is necessary would also prevent evasion and there would be quite definite chances of being able to bridge a difficult gap by something on those lines.
I listened with interest to what Deputy Sweetman has said. I do not know what happens in other parts of the country but we have dealt with this problem in Dublin by introducing differential rents.
Even with differential rents, a single old age pensioner cannot cope.
We were able to deal with it. Deputy Sweetman talks about old persons. That is a case we understand but the matter does not begin or end there because you also have the infirm person who is not necessarily old but is otherwise in exactly the same position.
But for natural reasons it is more temporary perhaps in the case of the old person.
Possibly he will not live so long.
We do not know that we can estimate the life span even of old persons. Even among old persons the life span is gradually increasing; we know that from our statistics in the city here. We have introduced differential rents which meet—as far as we can see—all cases of hardship, temporary or otherwise. You have the breadwinner or head of the house, for instance, killed in an accident and his family left unprovided for. In that case there is the same position of helplessness as with the old person from the point of view of rent commitments and again we allow the differential rent arrangement to apply. There is a certain minimum, beyond which the rent cannot go, fixed for each particular thing.
I hesitate to say this to the gentlemen of the legal fraternity but one of the problems that would be created— as far as I am advised—is that if you had statutory rents on controlled houses and if you varied those even out of the greatest generosity, you afterwards leave yourself open to the new rent——
That is the point. I say it should be excluded.
I know, but I should like this Bill to be as simple as possible. I believe the way to approach the problem about which Deputy Sweetman speaks is for another Minister to deal with it through what we might call social welfare, through an approach to local authorities, but if you are going to fill an Act with saving clauses for every possible situation you will not have a workable Rent Restrictions Act.
I am attracted to what Deputy Sweetman has suggested. I appreciate what Deputy Briscoe said as far as Dublin Corporation is concerned but I do not think that is a full answer because Deputy Sweetman mentioned the problem that local authorities have in dealing with certain types of individuals, maybe a single person or perhaps an elderly couple, who would not in the ordinary sense qualify for a local authority house. They do not qualify unless they happen to be living in a house or area that is being condemned or is to be cleared. They do not qualify on normal grounds of overcrowding.
The ordinary local authority dwelling, of course, is not affected by the Rent Acts but there are a number of dwellings that are, as Deputy Briscoe will know as a member of a local authority, subject to closing orders or which are condemned as dwellings unfit for the ordinary family of three, four, five or six but which at the same time the local authority would agree would be suitable to house a single person or an elderly couple. I think that is the kind of dwelling in respect to which Deputy Sweetman's suggestion could prove very helpful. You will come across cases where the local health authority feel that possibly a basement dwelling, or a cottage with two rooms that the health authority consider to be too small, or for some reason decide should not be relet for the purposes of a dwelling——
The Deputy is talking now of their own property?
No, I am not, but of ordinary property, not local authority property, but property——
Their own property is excluded.
——which the local authority enter into as the health or sanitary authority and they decide that the place is not fit to house a family of four, five or six.
Rent will cease to accrue then.
I am not really concerned with rent at the moment. I am at a slightly different tangent from Deputy Briscoe's. I am discussing the matter from the point of view of the dwelling and possibly of relieving local authorities.
Is the Deputy's case where the local authority has taken a tenant out of the house?
No, but possibly where the local authority takes a tenant out and says to the landlord: "You are not to relet that." But the local authority will very often be quite satisfied to relet, provided it is to a single person or an elderly person or couple. The difficulty the landlord is in is that if he does that, if he makes the letting to an elderly couple——
It is either condemned or it is not.
Quite. In a number of cases it will be condemned and to relet is a breach of the law. In the bulk of other cases—and I know some of them—the landlords may be estate managers who are co-operating with the local authority. They are not making lettings of houses which they have had inspected by the local authority and about which the local authority feel that, if there were to be further lettings, the powers to condemn premises might have to be invoked. These people are co-operating with the local authorities; they are not making the lettings but they know from the local authority that, if it could be arranged that the lettings would be to an elderly couple who would remain for the rest of their days and that there would be no danger of overcrowding, the local authority would withdraw their objection.
The position at the moment is this: they cannot make that letting to the elderly couple because the premises are controlled premises and if they do make a letting to an elderly couple that couple will acquire rights under this Act. If they try to put them out and serve them with a notice to quit, they will become the statutory tenants and when they become the statutory tenants——
Major de Valera
Does the Deputy mean a local authority or a private landlord?
I am talking of a private landlord.
If the landlord wants the tenants in, why would he want to put them out subsequently?
Because the local authority might require the property for slum clearance at a later date.
But that would be at a later date.
Once the person has been rehoused, it becomes the landlord's baby, so to speak.
The particular reason does not matter. If a letting is made, the letting becomes a controlled letting and, even under the old Act, the right of a member of the family residing there to take a tenancy exists. That is carried on in the present Bill.
The Deputy is dealing with the case of a premises which is not suitable for a large family but might conveniently be let to an elderly couple. If the landlord is a humane landlord who wants to make such a letting, why should he worry if the premises is controlled?
Not all landlords are hardhearted. Suppose there are premises which are not suitable for an ordinary family but would be suitable for a single individual or a family consisting of two or three. At the moment, some of these houses are condemned and the landlord can do nothing with them, but the local authority would have no objection if the landlord could find a single tenant or a family of two or three persons. There are such cases.
If the property is condemned, that situation could not arise.
It is condemned because it is not regarded as suitable.
The Deputy means the property is declared unsuitable for large families.
I will accept that. The property is declared unsuitable for large families. As far as the landlord is concerned, those premises must lie there idle. Let me give an actual instance. There is not a declaration such as Deputy Briscoe speaks of and there is no order condemning the premises, but an order might come if the landlord were to relet. On the other hand, he could make a letting to a small family, or a single individual, in the knowledge that whenever the local authority felt the letting should end because the place might deteriorate further——
He does not have to worry about that. Once the local authority want to do that, they can do it.
I agree they can condemn the premises any time they like.
And they would rehouse the old couple, and that would be that.
Suppose the old couple have brought in some children —not their own children, but in loco parentis.
Major de Valera
The local authority would cater for them, too.
But is that not all wrong? It is because the housing authority will not have that that they will not permit property to be let to a large family.
Major de Valera
That is the kernel of the position.
That is where the two things run together. You have the point of view of the local authority and the point of view of the landlord who owns the premises and could make use of them. The argument is there on both sides from both points of view. Deputy Sweetman has suggested that such houses should also be excluded from control under Section 37. That would help the local authority, and it would also enable the landlord to continue to make lettings of a suitable character. I agree with the Parliamentary Secretary that it might be necessary to introduce a provision under some of the Housing Acts to meet that position. I do not think there should be anything insuperable in doing that. A start would have to be made here in order to exclude such dwellings from the provisions governing control in this Bill.
Major de Valera
I was in some difficulty in understanding what Deputy Sweetman was driving at in the first instance. It seems to be a matter for the local government code. As far as I understand the point now, it is that there may be a landlord who is co-operating with a local authority. He knows the houses will be condemned or that permission will not be given for lettings to families. But there is an interim period and, during that interim period, he would have permission from the local authority to make suitable lettings. That is a matter to be dealt with under the local government code because clearly the position must be either that the local authority condemn and take definite action or else the landlord has a perfect right to let for his own temporary convenience. He can put the local authority to the jump, can he not?
It does not suit him to do that.
Major de Valera
Why not? Why should he have it both ways? He is definitely entitled to make a letting. I had some difficulty in grasping the point in the beginning, but surely if it is a matter which is of specific reference to local authority housing, then the intervention of a local authority in the matter of housing is best dealt with specifically in the local authority housing code. It would complicate things very much to introduce a provision into this Bill. The general policy is to regulate the relations between landlord and tenant in the traditional way. We have two main codes. We have the 1931 Act and we have the Rent Acts. I take a different view in this matter. There may be substance in the point made by Deputies opposite. There probably is.
Probably it was not well expressed.
Major de Valera
Oh, no; I got the point. But I do not think it is a matter that can be dealt with here. The purpose of Section 37 is to exclude the application of Sections 28 and 29 to lettings for temporary convenience and lettings during employment.
Major de Valera
Sections 29 and 30. These are the sections which deal with the right to recover possession. These two sections give a statutory defence to any ejectment proceedings. This section still leaves it open to the landlord in principle. I have not compared the actual wording with the provisions in previous Acts, but I think it is practically the same. It is to cover the position of a letting which forms part of any office or employment, such as a gardener, who might have housing accommodation ancillary to his employment. The general basic idea was that the tenancy would cease if the employment ceased. If the employer wished to change the terms of employment in that way, he was at perfect liberty to do so. That is the purpose of subsection (a). Subsection (b) was to meet the bona fide temporary convenience of a landlord or tenant. Without going into details, we know that the latter part has been the subject of a considerable amount of litigation and was the subject of considerable judicial decision. I am not clear as to what the state of the law in that regard is at the moment but I think the general idea of temporary necessity or temporary convenience has been rather hedged in by a judicial decision, so that it is difficult enough to make a letting under these heads.
Instead of meeting this section as Deputy Sweetman has suggested, I rather ask the question: is it desirable under the heading subsection (b) to define more clearly at this stage what is meant by temporary necessity or temporary convenience having regard to the decisions already made? Would it be possible to limit more clearly the meaning of these two words? Certainly, as the law stands now, it does not mean just convenience or necessity in the ordinary conventional way of looking at it; there are certain tests, but, by and large, I would imagine the answer to that is that if you attempt to be more specific there, you will get into deeper water. On surveying the whole section, the wording there is probably the best one will get and there is no need, even in the light of decisions, to extend the exception here, nor is there any need to increase the protection which has been given by the earlier section which has been excluded by this section.
For these reasons, therefore, I do not think a case for amending this section arises and, frankly, I think Deputy Sweetman's point would be better referred to the Minister for Local Government.
We should be glad if the Parliamentary Secretary would refer it to the Minister for Local Government to take up.
Major de Valera
It is quite a good point.
Will the Parliamentary Secretary do that?
If I knew exactly what to refer to him, I should have no hesitation in doing it.
We will send him the verbatim report.
I think Deputy O'Higgins and Deputy Sweetman were on different points.
They were coming together—the same point approached from different angles.
One point was that we should remove the control.
When I referred to removing control, it was the control under sections 29 and 30, not the entire control.
Do not forget that section 38 clearly points out that "nothing in this Part shall prevent a local authority from obtaining possession of any controlled dwelling the possession of which is required by them for the purpose of exercising", and so on.
If that is not the point, we will leave it at that.
Question put and agreed to.
Question proposed: "That Section 38 stand part of the Bill."
This is more for the Housing Act, according to Deputy Briscoe and Deputy de Valera.
Major de Valera
That is just a little bit too smart. You want to be clear that this is designed to keep the difference between the two codes I spoke of.
Question put and agreed to.
Section 39 agreed to.
Question proposed: "That Section 40 stand part of the Bill."
I should like it to be clearly understood by Deputies what we are doing in Section 40. I strongly oppose it. One of the reasons we have been objecting to this Bill is that it is proposed as a result of this Bill to give increases of their rent to landlords irrespective of whether repairs are carried out by them, irrespective of whether they fulfil their obligations, and there is to be an increase in rent on practically all sitting tenants, no matter what the means of those sitting tenants are, no matter whether they are well-off or poor tenants.
It has been answered on the Government side that if a landlord does not carry out his obligations and does not repair the premises, the tenant has certain rights and that he can make the landlord do the repairs. The first answer to that suggestion is the one that has been given several times in the course of this debate, namely, that tenants do not know their rights, that tenants do not like going to law.
Ignorantia legis neminem excusat.
Tenants do not like consulting solicitors or barristers.
I do not blame them sometimes.
We should realise these facts. We are dealing with a great number of people who do not know their rights and who need protection by this Legislature.
May I point out to the House what the rights of tenants are under existing legislation? In the case of what were known as controlled 1923 Act premises, that is to say, by and large, old premises erected before 1919, with a poor law valuation of £30 or less, the tenant had two remedies where the premises were in disrepair. He could apply to the court to have the rent reduced or he could apply to the court to have a sum ordered by the court to be spent on the premises. These rights are inserted in this Bill but with an added exception in this Section 40 and subsection (2) of Section 40 of this Bill has carried into this code a provision that was in the Landlord and Tenant Act and which was not in the previous Bill and was not in the previous Rent Act.
This subsection (2) provides in effect that if a tenant applies to the court because the premises are in a bad state of repair and where the landlord has not carried out the repair, the landlord can get out of his difficulties and the court may refuse an order if it is satisfied that the cost of putting the premises into good repair would involve excessive expenditure, or if it could be put into repair only by rebuilding, reconstructing or structurally altering the premises to a substantial extent. In other words, we are now putting a new sub-clause into this Bill which will leave it open to landlords to escape their liability in those circumstances. I do not think we should put it in.
There are a number of objections to it. One of them is that we do not know what those words mean at the present time. They are at the present time the subject of interpretation by the Supreme Court in a matter which has been appealed to the Supreme Court and in which judgment has been reserved. The whole wording of this subsection has been gone into minutely in a case under the Landlord and Tenant Acts. There are a number of cases in the High Court depending on the decision of the Supreme Court in this matter and we do not know what the actual import of these words is.
Apart from that, I feel that we should not insert this subsection into Rent Acts. It is going to make it too easy for landlords in certain circumstances to escape their liabilities. Remember that we are giving an increase to landlords of 12½ per cent. We are giving them an increase because it is said the cost of repairs has gone up, and so it has. We on this side of the House have no objection to landlords getting an increase of their rent where they have carried out repairs and where they have improved their property, but we object to this uncovenanted increase whether or not the landlords carry out their obligations.
It is true that they can be forced in certain circumstances to carry out their responsibilities but in this subsection we are making it easier for them to evade those responsibilities. I would suggest that we should leave Section 40 as it was in the old Rent Restrictions Act and that we do not put in this subsection (2).
Subsection (2) is entirely permissive. It merely permits the court to do this, and then only in certain circumstances. We must not assume that the court will act irresponsibly. Subsection (2) specifically provides that the court may refuse to make an order under this section, if the landlord satisfies the court on all these various points. That is reasonably adequate protection. We are placing an onerous liability on the landlord to satisfy the court that the conditions specified in the subsection apply.
Let us not lose our sense of proportion about this. What does subsection (2) deal with? It is dealing with the case of a court awarding a sum of money to a tenant against the landlord to enable the tenant to carry out repairs. That is a very wide power to give to the court in the relationship between landlord and tenant. We are modifying that a little. We are saying, as any sensible man would say and any reasonable court would say: "If the sum of money that has to be expended on these premises is absurdly high, if it is such a sum of money that the corresponding rent the landlord would charge to the tenant would be out of proportion to what he could pay, then in that restricted, limited number of cases, we will refuse to award the sum."
In all this we have a clear-cut, fair recommendation from the Conroy Commission. The Conroy Commission examined the operation of Section 48 of the 1946 Act, the corresponding section to this one, and recommended that this proviso, this sensible proviso, be put into it: if the expenditure involved is of such a nature that it would obviously be absurd to incur it, then the court may, in its absolute discretion, refuse to award the sum. That is all we are doing. That does not impose any onerous burden on a tenant. It deals only with the case where the tenant is asking to be awarded a sum out of the landlord's pocket to enable him to carry out repairs. When that is borne in mind and when it is remembered that subsection (5) preserves all the other rights which are available to a tenant to make a landlord carry out repairs, it is evident that Deputy Costello is not being realistic in his approach. What is Deputy Costello asking us to do? He is asking us specifically to allow the court, in a case where the expenditure of the money would not be justified, to grant a tenant a sum of money to carry out the work.
Is that not the way it has been under the existing law?
That is the way it has been and the Conroy Commission, having examined the working of the section, said it was absurd and should be changed. We agree with the Conroy Commission in that, as would any sensible man.
Deputy Costello has referred to the fact that the increase of 12½ per cent. under Section 10 was being given to landlords, provided they were liable for repairs in whole or in part and it did not matter whether they did the repairs or not. We objected to that provision on the basis that the landlord, under the Bill as it stands, is not bound to do the repairs. What he is asked to do is to accept liability for them under his arrangment with the tenant. Every time that argument was made, the Parliamentary Secretary or some other Deputy referred us to Section 40.
Section 40 provides that the tenant will not suffer if the landlord does not carry out the repairs, because the tenant could force the landlord to do them or force payment from the landlord so that he could do the repairs himself. That is not necessarily so, and that is the argument Deputy Costello is putting up. The Parliamentary Secretary has argued all along—and in this he has followed the Conroy Commission Report—that the 12½ per cent. increase to the landlords is to compensate them for the cost of repairs over the past decade or so; in other words, this is money they are supposed to have spent already on the property for which they are being compensated.
And will be spending in the future.
We are talking about the landlord who has not spent a penny on his property. He will get his 12½ per cent. under Section 10 of the Bill and he will now be in a position, because of this new subsection incorporated in Section 40, to go into the court and make a case that the place is too far gone to do anything with it. He can pocket his 12½ per cent. increase and if the tenant brings him to court under Section 40, he can put up the case that the premises are too far gone.
I suggest seriously to the Parliamentary Secretary that if the court does refuse an order under subsection (2) of Section 40, the court should have authority under this Bill to order the landlord to refund to the tenant any increase in rent which was imposed by virtue of Section 10 of this Bill, because in such a case I do not believe there is any justification whatever for the 12½ per cent. increase being awarded.
Major de Valera
What is this 12½ per cent. being given for? It is to meet what one would call the cost of running repairs.
It is quite clear, and it has been stated, that it is to compensate the landlord for the repairs over the past 10 or 12 years.
In some cases, for the past 40 years.
And for future repairs too.
Major de Valera
That question of compensation in the past has been mentioned, but let us look at the situation in the present and for the future. Having regard to the actual value of rents and the costs of maintaining property, I think it will be found that the 12½ per cent. will go no further, and can go no further, than to maintain from the point of view of ordinary running repairs premises which are already in reasonable repair. Take the case of a landlord responsible for external repairs, the question of slates, gutters, storm damage, and so on. That 12½ per cent. would be quickly absorbed and we would still be left with two separate problems. There would be the problem of the premises which are already so far gone that they cannot be brought into a maintainable state of repair without the expenditure of a large sum. Without going any further, I ask the question: How will we cater for that case? In regard to a house or tenement which is already too far gone in the matter of substantial repair, there will be continuing running repairs, if I may use that expression, or what I may call normal repairs, to be expected.
Should not they be dealt with under Section 10, apart from the 12½ per cent? They come under the other provisions of Section 10. The 12½ per cent. does not relate to them. They are also entitled to a percentage for putting their place into a reasonable state of repair and another percentage for improvements or structural alterations.
Major de Valera
Yes. The Deputy is slightly ahead of my argument. As I said earlier, this section is to some extent of benefit to the tenant, and many tenants wanted a provision of this nature. Let us take it the other way around. Suppose a landlord were compelled to put his place into a proper state of repair and the load would come back on the tenant? I can see it is extremely difficult to work out and extremely difficult to balance up here. I think it will work out in this way: where a landlord fails to keeps a house in a reasonable state of repair and to carry out his duty in the ordinary way, the court will compel him so to do and the tenant will be adequately safeguarded. The 12½ per cent. provision will actually strengthen the tenant's hand in that regard and will operate as an insurance in that, in the normal general run of cases, the premises will be kept in repair.
We come now to the type of case that is, I think, in Deputy O'Higgins's mind and about which Deputy Sherwin is thinking. What will be the position of tenants under bad housing conditions—tenants of tenements which are so substantially out of repair, through age, lack of care or anything else, that it would be uneconomic to put them back into repair? That is a very specific type of problem indeed, the answer to which is that it is simply outside our scope. It is a housing question, where the local authority comes in. I think when we get to this stage and are dealing with such tenants, we are very near the stage where the building should be condemned and I think that is how the courts would construe it. That being so, I think Section 40 is equitable and I leave it to the Parliamentary Secretary to give the other grounds he has in mind, such as the Conroy Report and other expert opinions.
Deputy Costello raised the question of interpretation. If in the light of the Supreme Court's interpretation, any major problem for the Legislature arises, amending legislation is always within the competence of this House, and I think that argument would be constraining, rather than a cause for rejecting the section.
I stated what my interest in this section is previously. On the last occasion we discussed rent legislation I said that there are 1,500 families in Dublin at the moment living in certified condemned dwellings. Since then, I have got further official information. Apart from those 1,500, there are 700 dwellings which the housing authority intend to condemn in the near future. That means that there are 2,200 condemned dwellings in Dublin, the landlords of which are aware that the local authority intends taking them over, and will not, therefore, spend one penny on them. Nevertheless, the landlords of these 2,200 dwellings will be entitled to ask for the increase of 12½ per cent., as has been stated here, where it is proved that it would be unreasonable to ask for any repairs to be carried out. Surely the landlords of these 2,200 dwellings can easily prove that because they will be able to prove that the Corporation will take over the premises in the next year or so——
That is not one of the grounds.
The fact is that the 12½ per cent. will be granted to these landlords, who, by right, should be fined, because if the properties are so bad, it is proof that they carried out no repairs for ten or 15 years.
The grounds on which the court may refuse to award a sum of money to the tenants are clearly set out in the section. It can be refused on those grounds only and on no other grounds.
Does the Parliamentary Secretary agree that the landlord can ask for an increase of 12½ per cent?
Even where he is not liable for repairs?
He must be liable for repairs in whole or in part.
I am not satisfied with the Parliamentary Secretary's explanation. I am satisfied that the landlord will get this 12½ per cent., that no repairs will be carried out, and that he will be able to plead that the premises are too far gone and get away with it.
It has been suggested that we are being unreasonable in asking for the deletion of this subsection. It has also been suggested that the court should have regard to the condition of the premises, and that if the premises are in a bad state of repair and would require the expenditure of an excessive amount of money to put them into good repair, the court should not grant the order directing the landlord to pay a sum of money to the tenant to carry out specified repairs. I think it should be pointed out that if it is reasonable to include that provision in Section 40, it should also be included in Section 15.
Under Section 15, if the premises are old, if they are pre-1919 with a poor law valuation of £30 or less, the tenant can get his rent reduced, even if the premises are in a very bad state of repair. Under this Bill, a tenant who is a tenant of old premises—pre-1919, with a poor law valuation of £30 or less—no matter what state of repair they are in, may bring application under Section 40 to ask the landlord to put the premises into good repair. If the court is satisfied that the expenditure would be excessive, the tenant would not get such an order, but then under Section 15, he can get his rent reduced. We are introducing a distinction in this Bill which I think is bad. If it is right for Section 40 to have such a subsection, I imagine it should be right for Section 15 also.
The two sets of circumstances are completely different. In one, the landlord is being ordered to pay a sum of money, and in the other the rent is being reduced. There is a big difference.
Do I understand that it is regarded as justifiable to have the rent of premises reduced if they are in a very bad state of repair and an excessive expenditure would be required to put them into a good state of repair, but inequitable to ask the landlord to put them into a good state of repair? I do not see that that distinction is a valid one. I am against this subsection. The fact remains that this will be availed of. It is put in to assist landlords, to ease the situation of landlords in certain circumstances. I do not think it should be put in.
The Parliamentary Secretary pointed out that this is merely a permissive clause. It was permissive, anyway, under Section 40 as it stood. It was not mandatory on the court to make an order. The court could take the various circumstances into consideration. Now the court, in interpreting this section, is bound to accede to the view that this subsection was not in the previous legislation, but the Oireachtas has now put it in. The court must take cognisance of this subsection. All that will be necessary now for the landlord to do will be to bring in a qualified architect. He will say that to put these premises into repair would cost £1,000. The roof has to be stripped; the slates have to come off. The bigger the job to be done, the better, so far as the landlord is concerned.
The court has to say to itself that the Oireachtas has put this in for some reason. It cannot ignore this subclause if the landlord is in a position to bring in evidence of that sort. Even though the premises are leaking, the slates defective and the whole premises is or should be condemned, the landlord can get out of his obligations to repair it, even though he has got his 12½ per cent. increase.
This is not airy-fairy talk. Deputy Sherwin gave examples of cases which came to his knowledge. I know of cases which came to my own knowledge of people living in old decrepit premises which should have been condemned long ago and which have not been condemned. They are the subject of order by the local authority to repair. The landlord has not repaired them and nothing has been done. The local authority may take action. It may take them a year during which time the rain enters the premises and the landlord is getting his 12½ per cent. increase. The tenant cannot come along because of this subsection to get the landlord to put a sum of money into repairs.
I think the courts applied the old Act reasonably. I know of cases where the tenants put up figures to show that a considerable sum was necessary to put a premises into repair. The court said that these were old premises and it did not consider that the landlord should be under an obligation to put a lot of money into the old premises and that it would be sufficient if a certain sum were spent to make the premises waterproof. I feel that the section under the old Act was interpreted in a very reasonable way by the courts in the past. We are now putting in a subclause which the courts must take cognisance of, if they are to interpret this section fairly.
Major de Valera
Deputy Costello is a very good advocate but I think he is pressing his case a little too far. Let us follow the subject in its sequence. We all agree that the problem of the tenement which has gone so far—the type of tenement to which Deputy Costello and Deputy Sherwin referred —exists. We should clearly keep two things in mind. The first is this: Is this provision fair to the rest of the tenants who are actually the majority? We all can agree it is. The case has been made solely on these near-condemned premises against this section. Is the case of the tenement which Deputy Costello has in mind sufficient to warrant our rejecting this section which is manifestly in line for all other tenants? Let us follow the argument a little further than Deputy Costello.
It will not apply to other tenants. It will apply only——
Major de Valera
Pardon me. It will apply generally but it will not work in this particular way in regard to the other tenants. It will apply generally and will be a very important one perhaps in the long term for other tenants. Let us keep to the type of tenement upon which this case is made. Assuming a landlord fails to keep such a tenement in repair and the tenant brings him to court to enforce his right—a tenant who is already paying him in regard to 12½ per cent. for ordinary repairs—the court will have regard to all these facts and will do one of two things.
It will either accede to the tenant's demand under the section and operate in favour of the tenant and the benefit of the tenant compelling a landlord to do his duty or if it finds that "the dwelling could be put into good and tenantable repair only by being rebuilt or reconstructed or structurally altered to a substantial extent", then it may decline the order.
Deputy Costello claims that is a hardship on the tenant. It would be but for the very Section 15 which Deputy Costello mentioned because at that stage, surely, if it can "be put into good and tenantable repair only by being rebuilt or reconstructed or structurally altered to a substantial extent," it comes within the terms of Section 15, which gives the tenant the right to a reduction in his rent. Section 15 (1) says "the tenant or the sanitary authority may at any time apply to the court on notice to the landlord for an order reducing the rent of any controlled dwelling... on the ground that the dwelling is not in all respects in good and tenantable repair".
Imagine the position of the court. The court is satisfied that it is not in good and tenantable repair, so much so that it refuses to make an order in favour of the tenant to compel a landlord to outlay a certain amount of money on large reconstruction. Surely that court is not going to hold against the tenant in an application under Section 15? The very fact that the tenant has been refused relief under Section 40 must be the grounds for a reduction in the rent, so that you have the interesting situation— and I think the logical one—that in the case of premises which are so far gone it is fair to the landlord not to compel an outlay that is altogether uncalled for as he is not expected to be a social service and on the other hand, it is fair to the tenant. If the premises are not what he should have, he should not be required to pay the full rent for it. It is equitable in that case that the rent should be reduced. All these things are provided for in the Bill. The end of the logical sequence is that the premises become uninhabitable and at some stage the local authority should step in. When one looks at it that way, can anyone propound a more equitable and logical approach to that problem? It is not quite the same thing as the 12½ per cent. The 12½ per cent. is really there for maintaining premises that can be maintained, on a normal basis, in repair.
Would the Deputy be prepared to cut it out so far as other premises go?
Major de Valera
What does the Deputy mean?
You say the 12½ per cent. is really there for premises which can be kept. Would you cut it out for the rest?
Major de Valera
The procedure I have talked of can cut it out if it is not in repair and the tenant applies under Section 15 to the court. He may get even more than 12½ per cent. off. He may get even 20 per cent. Section 15 is a much more effective remedy than merely limiting to 12½ per cent.
That section is permissive also.
Major de Valera
I like the word "also". Where the courts are exercising a discretion they have to work permissively. As Deputy Costello said the courts administer these matters very sensibly as far as the statute will permit them to do so. We all have experience of the lengths the courts have gone to, and advocates in the courts have gone to, so as to obtain fair considerations and applications. I want to pay a tribute to the administration of the law in that regard in the courts by both judges and advocates.
My point is that you have to take the whole system of the code as well as the individual section or subsection. I have tried to show that the logic of the case works out for the benefit of the tenant in the end, while being fair to the landlord. It is over-pleading on Deputy Costello's part to represent it as a case of the higher the better— that, if a landlord can demonstrate to the court that the cost is outlandish or show that the whole building is out of repair he gets away with it. That is not a fair picture. If the landlord does that, having regard to Section 15, the result must be that if the tenant does not get the repairs he gets a large corresponding reduction in rent. We know the fairminded attitude of the judges. If the landlord was not doing that, they would redress the matter on the other leg.
I come now to the interpretation of subsection (b):
the dwelling could be put into good and tenantable repair only by being rebuilt or reconstructed or structurally altered to a substantial extent.
This does not mean that if a landlord comes into court and says that to do this would require this, that and the other—and he can always bring architects to support him and the court has to accept that—he will succeed in evading his obligations. There are some slates off the roof and the roof is leaking in some flat. The landlord comes into court and brings in an architect to show that the roof has to be replaced. To do a good job the roof has to be replaced and there is a big cost and he hopes to get away on that section. I feel that the counsel or the tenant himself or the court, if he has not a solicitor, will ask: "Can I keep out the rain by putting on the slates and leaving the question of deterioration of the roof as a whole to another time?" The court will say that the landlord can do that and, therefore, that reasonable repair will be done and the section will not be evaded at all.
It is totally different with a dangerous building. It is a different line of country. It is just to meet that that that section is there. When one examines it in this way, there is a very strong case to be made for the tenant's interest and, in the tenant's interest as well as that of the landlord, from the point of view of equity, unanimity and consistency in the whole court there is a very strong case to be made for the insertion of this section.
Do we realise the type of tenant on whom this subsection will impinge? It is obvious that it is the slum-dweller, the tenement-dweller.
I feel it is a very poor solution to say to that type of person: "If you fail to get the landlord to put your dwelling into proper order and condition you can go back into the court again under section 15." That is completely unreal. Even if the unfortunate type of tenant to whom we have regard realised his rights in the matter, which he will not, he would not have the wherewithal to proceed on the lines suggested by Deputy de Valera.
Major de Valera
I think he can do it practically in the same procedure.
We all realise that in the cities particularly and in the larger towns a section of landlords, fortunately a small section, are extensive owners of slum property. By reading the reports of the courts every day we can see that they also appear to specialise in availing of every possible loophole in the law to rid themselves of their obligations and liabilities insofar as keeping the premises in which their tenants dwell in repair.
In this section we have a provision where the tenant can take the landlord into court to have the premises put into proper repair. If the cost of putting it into good and tenantable repair would involve an excessive expenditure the tenant cannot succeed. I can visualise that it would be quite easy for the landlord of this type of tenement slum property to succeed in court under this section. It is true to say that it would cost an excessive amount to put it into repair. Therefore, the landlord succeeds in court.
What does this Bill do? In spite of the fact that the landlord has gone to the court and proved that the property is in this state of disrepair, we are giving him an increase of 12½ per cent. in the rent. I am speaking now of extensive owners of property of that kind. An increase of 12½ per cent. is a fairly good bonus on property in respect of which they have gone into court to prove it is in a shocking state of repair. I cannot understand what justification the Parliamentary Secretary can put forward for an increase of 12½ per cent. in such a case. I seriously commend him to have a look at the suggestion by Deputy M.J. O'Higgins to incorporate somewhere in this section, or in the Bill, that where the landlord succeeds in proving to the court that the repair cannot be carried out except for an excessive sum——
That is not what is involved here.
——then the 12½ per cent. which he is getting under this Bill will not be applicable in the future and the 12½ per cent. which he already collected will be refunded to the tenant.
The over-riding consideration in this section is to preserve a fairly considerable asset of old but repairable houses. I am not concerned with tenements very much because the whole tendency of our building schemes is to get rid of slum dwellings as quickly as possible. In every city and town there are a fairly considerable number of good houses which are structurally sound but which need repairs. The purpose of this section is to try to get them repaired without prohibitive cost. When they are repaired the important part about it is this: some of those may be 8/- a week and some may be 16/- a week. Twelve and a half per cent. is added to the 8/- which becomes 9/- and to the 16/- which becomes 18/-. That is for the tenant who in most cases does not want to leave that house. It suits him. The locality suits him and the schools and churches are near him and, even with the 12½ per cent., it will be pounds cheaper than going into a modern house which becomes available. It is to my mind a great advantage to get these houses repaired. Some of them when repaired may not be up to modern standards and may only suit old people. That is one thing we are working towards in the cities and towns, to try to get small houses for old people to live in.
Hear, hear. It is a pity the Deputy did not support me earlier.
That is my viewpoint on the matter. This section is designed with that aim and consequently it has its merits. Undoubtedly it is reasonable to object to every increase but if the purpose is good and it attains its end, preserves a national asset and eliminates the expenditure of a good deal of money on new houses, where old houses may be needed and may be useful, I think it should be supported.
First of all, let me deal with the argument put forward by Deputy Declan Costello that he knows what happens under the working of Rent Acts, that he has seen Section 48 of the 1946 Act work in practice and that he, from his own personal knowledge, is satisfied that it works well. The only thing I can offer in rebuttal of that argument is his own expert commission, the Conroy Commission. I am prepared to take their judgment and their knowledge of the situation in preference to Deputy Costello's. The Conroy Commission, which on the Second Stage Deputy Costello unequivocally praised and enthused over as an expert commission, made this clear-cut recommendation and we are following them exactly in what they recommended. I prefer to accept the view of the Conroy Commission, based on their wide experience and authoritative knowledge, rather than Deputy Costello's.
The argument has been put up here by Deputy Casey that this section will operate entirely on tenement dwellings. Of course it will not.
The Deputy's opening remarks were that this section would impinge on tenement dwellings.
And I gathered that the implication of the Deputy's remarks was that it will——
The people who will suffer most will be tenement dwellers.
In practice this section will have very little bearing on tenement dwellings. Deputy Casey went on to say that he could not see any justification for the section. If he cannot see any justification for the section, he must not understand what it is all about. I can understand his objecting to the subsection——
Even then he must not understand the subsection too clearly because in relation to the subsection he mentioned the carrying out of repairs. The provisions of the subsection do not deal with the carrying out of repairs by the landlord. In subsection (4) a sum of money——
That is what we are concerned with in——
Of course the tenant would not go to court unless the landlord failed to do the repairs.
Naturally he would not. Let us be clear whether we are talking about the section or the subsection and exactly what we are talking about. The insertion of this subsection in Section 40 does not in any way invalidate my argument that landlords liable for repairs can be compelled to carry them out. Section 40, in 90 per cent. of cases, will operate to compel landlords liable for repairs to carry them out. The very fact that it is there at all will have that effect.
Ninety per cent.? And the other ten per cent. will have to pay the 12½ per cent. although their houses will not be repaired.
The other ten per cent., if it is ten per cent., admittedly will have to pay the 12½ per cent. increased but they can still compel the landlord to carry out the repairs because Section 40 is not the only remedy a tenant has. As already pointed out, there is Section 15 of the Bill, Section 61 of the Landlord and Tenant Act, 1931, and the common law rights. It creates a false impression to try to maintain that Section 40 is the only remedy available to a tenant to compel a landlord to carry out the repairs for which he is liable.
I have already enunciated the other remedies available three or four times during this debate and I think it is either obtuse or unfair to try to argue at this stage that Section 40 is the only remedy available. As I say, Section 40 will be fully effective in 90 per cent. of cases. The cases in which it will not operate will be cases which most reasonably-minded people would not expect it to operate, namely, cases where the expenditure would be of such a nature as to be obviously unjustified because the expenditure in itself would be so large—and the special lawful addition arising out of it so large—that the court would decide the tenant would not be in a position to pay it. To that extent it is in relief of the tenants themselves.
Would the Parliamentary Secretary permit me? Why should there be 12½ per cent. in that particular case?
The last category which the Parliamentary Secretary mentioned.
The case of houses too far gone? Because the value of those houses when repaired would be such that it would be unreasonable to expect landlords to spend that amount on putting them into good repair.
Why allow the 12½ per cent. increase on rent on the house which it would not be reasonable to expect the landlord to repair?
When I say "reasonable to expect" I am talking about this excessive type of repair. I am not talking about running repairs. The 12½ per cent. will apply because even though the landlord does not do this major repair he will be liable to carry out running repairs and to the other sanctions of the law in this respect, such as Section 61 of the Landlord and Tenant Act and so on.
That is not the argument advanced for the 12½ per cent. increase. It was not for running repairs.
Of course it was. The 12½ per cent. increase has been justified all along on the ground that it is to meet normal repairs. We have always had a provision in the Rent Acts to deal with extraordinary or special repairs. As I asked before, let us be realistic about this. What are we doing? We are merely rounding off this section, merely saying that in a case where the expenditure would be absurd, having regard to the type of house involved, the court is permitted—and only permitted, there is nothing obligatory about it—to refuse to grant payment of this sum of money to the tenant. The tenant by virtue of subsection (5) still has all the other rights available to him.
Question put and agreed to.
Sections 41 to 44, inclusive, agreed to.
I move amendment No. 46:
In subsection (2), page 27, line 54, to delete "passing" and substitute "commencement".
It is consequential on Nos. 1 and 2.
It deals with the change of date.
Amendment agreed to.
Section 45, as amended, agreed to.
I move amendment No. 47:
In subsection (1), page 28, line 3, to delete "passing" and substitute "commencement".
Again it is consequential.
Amendment agreed to.
I move amendment No. 48:
In subsection (2), page 28, line 15, to delete "passing" and substitute "commencement".
Amendment agreed to.
I move amendment No. 49:
To add to the section the following subsection:
"(4) There shall be implied in every contract made after the commencement of this Act for the sale of any interest in a controlled dwelling a provision (if not already expressly included) binding the vendor to give to the purchaser any information in the vendor's possession or procurement regarding any deposit made after such commencement by a tenant of the dwelling as security for payment of the rent."
I am introducing this amendment to meet the case mentioned by Deputy O'Higgins on the Second Stage. The House will recollect that we were talking about the case of the tenant who made a deposit with the landlord as a security for rent and we were providing that, where there was a change of landlord, the tenant would still be entitled to procure the refund of the deposit from whoever was landlord at the appropriate time. Deputy O'Higgins was worried about that because he felt that the landlord at the time might not know of the existence of such a deposit. I pointed out that it would be a simple matter to make it another requisition in title. He suggested that we go a little further and make it a condition of the contract that the vendor would be required to make the existence of such a deposit known to the purchaser. This amendment is intended to ensure that every vendor will be compelled to disclose the existence of such a deposit to the purchaser.
I think the Parliamentary Secretary has met the point I made and, if anything, he went a little bit further. I suggested that there should be a provision to make it illegal to exclude a requisition. The Parliamentary Secretary makes it a positive duty on the vendor to give any necessary information. I am not opposing the amendment but it appears to me that, when the new section is being put in this form, it might be convenient to stipulate in some way how the information should be given and possibly the Parliamentary Secretary would like to consider that point.
I do not want to say anything more on this amendment and I am not sure if I am in order in referring to a matter in connection with the section now or later. It relates to the question of the deposit and I think it is relevant at this point. In subsection (2) of this section, it is set out that where, during the tenancy of a controlled dwelling, a deposit is made which is not an approved deposit that deposit will be recoverable on demand. It seems to me that there is a loophole there which the Parliamentary Secretary would be able to plug. What I have in mind is the case where you may have a non-approved deposit insisted on by the landlord before the tenancy.
I think it is covered by the section.
If the Parliamentary Secretary is satisfied, I shall not pursue the matter.
I agree that the Parliamentary Secretary was wiser to go the little bit further that has been mentioned by Deputy O'Higgins, but I should like him to go further still. It seems to me that, even with this subsection added, the whole sale would be closed and the purchaser might be faced with the refund of a deposit which was paid to a vendor who may have gone away. We should try to make it impossible for a vendor to do that. I think that the Parliamentary Secretary should try to provide that the information as to such a deposit should be given by way of statutory declaration. There is a complete analogy in the statutory declaration which is required under Section 47 of the 1891 Local Registration of Title (Ireland) Act.
In this case it could quite easily be done by adding the words "give, if so required, to the purchaser any information in the vendor's possession". One of the normal requisitions would be that when a purchaser was buying rented property, he would be given a statutory declaration as to whether or not there were any deposits. If the vendor had to complete a statutory declaration to that effect he would not lightly give the answer: "not to the knowledge of the vendor". If the Parliamentary Secretary wishes, he can look up the position under Section 47 of the 1891 Act and he will find the analogy there. It is standard practice for a solicitor and counsel to require such a declaration and I think it should be provided for in this Bill.
There would then be no chance of its slipping through by accident. Otherwise, I am afraid that it will slip through on occasion by accident and the purchaser will be liable to pay the tenant's deposit and will have a technical right against the vendor which will be very difficult to enforce. It should be made reasonably certain that the vendor will properly apply his mind to the answer he is giving before he gives it.
We are getting very much into practitioners' territory here. I felt that I was going fairly far in this matter. I do not know whether I could be pushed to go much further but generally, on this subsection, we are doing exactly what we are doing in Section 12 of the Bill. Subsection (4) of that section deals with the same type of situation. It deals with the question of persons giving information as to the basic rent. Our objective was to keep this section in line with subsection (4) of Section 12. It was really a question of being consistent in the two sections.
But in this case you are making the man actually liable to repay money he has never received?
You are going a bit further, and I would say correctly.
The fact that this provision is here, such as it is, will afford adequate protection with competent solicitors. I wonder should I be compelled to legislate for practitioners who are not all they might be?
Some vendors act on their own behalf.
Amendment agreed to.
Question proposed: "That Section 46, as amended, stand part of the Bill."
I should have put down an amendment to this. Subsection (3) of Section 46 provides the definition of an "approved deposit". It is very often actually not in the agreement itself that there is a reference to the deposit but in an endorsement on that agreement. I do not think the words set out in that agreement would cover a deposit to which reference was made in an endorsement. I think that should be covered. I do not think there is anything in it at all from the point of view of principle.
Secondly, in relation to the case where there is not a written agreement, the Parliamentary Secretary has provided that the deposit must be entered in the rent book at the time it is made, but it must be carried forward into succeeding rent books if one rent book gets used up. Otherwise, it will be in it merely at the time it is made and until that rent book is finished.
We are concerned only with having a record made.
I think the record should be there so that anybody inspecting the rent book at any time will know that there was in fact a deposit.
All the details will be copied from one into the other.
No; that is not the usual way. If the Parliamentary Secretary means Paragraph (b) to do that, I do not think it does it.
There are two things. First, the old rent book will be kept by a judicious tenant, particularly if he has paid a deposit.
I am thinking of something more than that. I am thinking of the new owner when he comes to give his first receipt—when the tenant comes to produce his rent book and to take his receipt. The owner need not necessarily be the owner on a purchase but may be the owner on an intestacy or a bequest. The first time the tenant comes to make his payment, it should be patent to the person collecting the rent that there is a deposit in that case. That is desirable and can be met quite simply by adding the words "is carried forward in every subsequent rent book". I shall put down those two small drafting amendments for the next Stage.
Question put and agreed to.
Sections 47 to 50, inclusive, agreed to.
I move amendment No. 50:
To delete subsection (2).
Subsection (2) provides that any proceedings which are pending under subsection (1) of Section 22 of the 1946 Act shall continue and be treated as if they were proceedings under subsection (1) of Section 15 of the Bill. These would be proceedings by a tenant or a sanitary authority to secure a reduction of rent on the ground that the premises are not in good repair.
As there may be other matters the subject of legal proceedings when the Act comes into operation, it is considered better to have a general provision, such as that contained in the new subsection, so that any pending proceedings under any provision of the 1946 Act will be dealt with under the corresponding provision of this Act.
Amendment agreed to.
I move amendment No. 51:
To add to the section the following subsection:
"(3) Where, immediately before the operative date, any proceedings, other than proceedings referred to in the foregoing subsections of this section, stood pending under the Act of 1946, the proceedings shall continue and shall be treated as if they were proceedings under the corresponding provisions of this Act."
Amendment No. 50 deletes the old subsection and this amendment puts in the new one. They more or less go together.
Amendment agreed to.
Section 51, as amended, agreed to.
Sections 52 and 53 agreed to.
I move amendment No. 52:
To delete subsection (1) and substitute the following subsection:
"(1) This section applies to premises which, immediately before the operative date, were—
(a) controlled premises, within the meaning of the Act of 1946 and business premises within that meaning, and
(b) premises the letting of which was not—
(i) a letting made and expressed to be made for the temporary convenience of the landlord or of the tenant and (if made after the 22nd day of December, 1931) stating the nature of such temporary convenience, or
(ii) a letting made for or dependent on the continuance of the tenant in any office, employment or appointment."
The object of Section 54 is to enable tenants of purely business premises which become decontrolled as a result of the provisions of this Bill to have immediate access to the provisions of the Landlord and Tenant Act, 1931. It has come to our notice that the provisions of the Landlord and Tenant Act never applied to a certain type of tenancy, that is, lettings for temporary convenience. As Section 54 stands at the moment, it would grant access to the provisions of the Landlord and Tenant Act to that type of tenant. The amendment is to rectify that situation; in other words, to exclude temporary convenience lettings while giving protection to all other types of premises which become decontrolled.
There is provision in the Landlord and Tenant Act in the case of a letting which will end through the effluxion of time whereby notice must be given three months before the end of tenancy. There is a similar provision in regard to the period within which an application must be brought where there is a notice to quit. But, unless there is a specific provision in this Bill importing into the Landlord and Tenant Act a period after determination of the tenancy, will the tenant not be barred by the provisions already in the Landlord and Tenant Act? I admit I have not got the Landlord and Tenant Act here but I should like the Parliamentary Secretary to check that, quite apart from the intentions, the mechanics of the application under the Landlord and Tenant Act are not to be stopped by the time stipulation.
That is the Parliamentary Secretary's responsibility. Once the Parliamentary Secretary says they are not——
No, the Parliamentary Secretary's own responsibility.
All right. I accept that.
Amendment agreed to.
Section 54, as amended, agreed to.
First and Second Schedules agreed to.
Title agreed to.
Bill reported with amendments.
When will the Report Stage amendments be circulated ?
Report Stage ordered for Wednesday, 7th December, 1960.