Like my colleagues on this side I welcome the Bill, but I do so with reservations. I welcome the Bill because I regard it as a serious if belated effort to consolidate landlord and tenant law, an effort to clear up what has been a veritable jungle. It will be a boon not only to students but to practitioners. I welcome some of the amendments provided in this Bill to existing law and some of the new provisions introduced in it. This must of necessity create new problems and new difficulties. Unfortunately some of the most glaring and major difficulties in the 1931 Landlord and Tenant Act have been left untouched and, therefore, unresolved. I shall deal with these on Committee Stage.
I should like to remind the Minister now and the House of the genesis of this Bill. It was mooted three or four years ago and the Minister and his colleagues now introduce this Bill, after a long period of gestation, on the eve of a general election. It was presented with a great flourish, hailed and accepted by the Press and the other media as something wonderful, the Magna Carta of the tenants, the final remedy for all their ills. It is, of course, nothing of the kind. Unless the Minister, as was pointed out by Deputy Collins, accepts substantial amendments and changes in the Bill he will miss the opportunity he had of catering for tenants with long standing, genuine grievances, tenants who deserve to have their vexatious relationships between them and their landlords resolved. The great hopes these people have had for years are going to be dashed by the Minister. Initially the Press seemed to get the impression that this Bill would do away completely with ground rents. Nothing could be further from the truth. There is, in fact, a provision in this Bill for the creation of more and more ground rents. The Bill makes a provision for the State and local authorities to continue as landlords, in the worst sense of the word. The State and local authorities are the biggest landlords, if not actual speculators, and this Bill provides that they can continue to reserve the right to collect ground rents. I shall come back to that later.
My main criticism of this Bill is the fact that it transfers the whole of the administration of landlord and tenant law, in so far as councils are concerned with ground rents and the creation of new tenancies, from the Circuit Court to the county registrar. I believe this will create enormous problems. I believe it will make this Bill unworkable. The role of the county registrar will be enlarged. Indeed, his powers and functions have increased to such an extent that I believe he will not be able to deal with the new workload.
There is some doubt—it is a doubt I have and it is shared by many others —that the transfer of these judicial powers from a judge, who is duly appointed and sworn in in accordance with the provisions of the Constitution —Article 34, if I remember correctly —to a county registrar is unconstitutional. I do not want to embark on a constitutional debate with the Minister but I should like him to give us an assurance that this is not so. I would like him to assure us there is no constitutional objection to making the county registrar the arbiter in these matters. I believe, of course, that the difficulties the county registrar will encounter in this proposed new role will be so numerous and so complex as to make them almost insuperable. The powers proposed in section 12 are vast. The Minister is a legal practitioner and he knows well that the county registrar will have to deal at length with complex matters of both law and fact. I need not remind the Minister of how difficult these questions of law can be. Take, for example, tracing title. Very often it is a matter for experts who specialise in that branch of law. I find it difficult to visualise an unfortunate county registrar, with all the other burdens of his office, having the time and the opportunity to deal with complex matters of law and fact. Complex matters of fact will require the examination of witnesses and documents.
With all due respect to county registrars, and I am not one to reflect upon them, they have not got the experience, the training, the expertise or the disciplines that judges have in dealing with complex difficulties and involved matters of both law and fact. They are not trained for that. The county registrar is a quasi civil servant. He is not in touch with what one might describe as judicial functions. He does not even practise in the courts. He is out of touch with the rules of evidence, procedure and privilege, all of which require expertise to enable one to adjudicate correctly in these complex matters of law and fact, matters which could involve very important properties.
I am not casting any reflection on the ability or integrity of county registrars but it is too much to expect them to perform difficult duties for which they are not trained and which are properly the province of judges. I do not believe that the kind of adjudication which it is proposed to give to county registrars will be conducive to the standardisation and harmonisation of the law and of the provisions of this Bill. According to the Minister's proposals here, one county registrar will make up his mind on one matter while another may come to a different opinion on the same matter. The law will not be properly settled and fixed as is the case when a decision is made in the Circuit Court or in the High Court.
Apart from that, this adjudication of law behind closed doors is not proper in justice. In the matter of ground rents and leases with which this Bill is concerned not only should justice be done but it should be seen to be done in an open court adjudicated on by judges who are sworn in in accordance with the Constitution. They take a solemn oath to administer justice without fear or favour but county registrars do not give such a solemn undertaking. This slipshod method of dealing with the serious and sensitive problem of ground rents is not good enough. The people deserve better.
Apart from his own personal or professional limitations, the county registrar has not the staff to deal with the enormously increased workload which he will have to undertake if this Bill becomes law. This will be particularly the case if this Bill is as popular as the Minister thinks it will be and if it is availed of by as many people as we are led to believe will be the case. The county registrar has not the staff, accommodation or facilities to administer the provisions of the Bill.
Deputy Enright said that this would not present any difficulties in Laois-Offaly but I can assure the Minister it will present enormous difficulties in the county and city of Cork and I speak with some experience and authority on the situation there. I am sure the Minister is aware of the greatly increased burden of work put on county registrars under the Juries Act of last year. In the county registrar's area of Cork city and county juries have to be called for four criminal sittings each year and usually they last for three weeks apiece. During that time a jury panel of about 600 has to be called every day. The High Court also sits in Cork city three times yearly usually for a period of two weeks. Each sitting lasts a fortnight and the same number of jurors have to be called. That means there are at least seven sittings a year and on each occasion the panel numbers between 600 to 700 jurors. That works out at something in the region of 6,000 jurors per annum all of whom have to be notified by the county registrar. Those who want to be excused have to be dealt with and this involves lengthy correspondence with them and with others. This happens to such an extent that county registrars in busy areas such as Cork, Dublin and Limerick are inundated with work of this kind.
In addition to catering for juries, the county registrar has to deal with a revision court once a year. In the Cork area such a court dealing with electoral lists lasts for four to six weeks. Now that persons of 18 years can vote the workload of the county registrars is increased further. In view of this I doubt if county registrars could deal seriously with the difficult judicial matter of arbitrating on the issues dealt with in this Bill.
The Minister has claimed that the transfer of administration of this legislation to the county registrars will be an economy but I do not think that will be the case. It means that a county registrar in Cork will have to leave the city and travel to Glengarriff and Bere Island, which is 90 miles from Cork city, and he will have to take his staff with him. Parties may have to travel from Cork city to a place 60 or 70 miles away with their witnesses and legal representatives. Apart from the inconvenience of making these journeys it would involve them in enormous expense. Alternatively the parties may have to travel from Glengarriff or Bere Island to Cork city. Then there is the matter of adjournments for one reason or another when the parties may have to return to the venue of the first sitting. Either way it would involve trouble and expense.
Instead of making the county registrars the arbitrators in these matters the Minister should consider using circuit judges who sit in most large towns and who are trained and have experience of all these matters. Alternatively the Minister could consider transferring this jurisdiction to District Courts, making each district justice responsible for the administration of this kind of law in his own area. The district justice has the premises, the staff and the experience. He is au fait with all the developments, has experience in rent restrictions and would be in a better position to deal with this matter than the county registrar. I should like the Minister to give us a good reason why the administration of the proposals in the Bill could not be carried out effectively by a district justice.
My second objection to the Bill is that it does not remove the defects contained in the Landlord and Tenant Act, 1931. In particular I refer to the mechanism which is used by landlords to prevent tenants from acquiring rights to which they are entitled under the Landlord and Tenant Act, 1931. The Minister must know of many cases of unscrupulous landlords employing these devices to evade the provisions of the Act and who will continue to do so under the provisions of this Bill. Instead of leasing a premises landlords use the device of leasing equipment in premises such as machinery and counters. Deputy Enright spoke about the renting or hiring of equipment in a fish and chip shop. The landlord uses the device of making a hiring agreement instead of a letting, of not giving a lease but giving a licence to the occupier for the use of the equipment on the premises or for the use of waste space at the back of the premises for an exorbitant rent and giving the premises itself free of rent. The written agreement is binding upon the occupier of the premises.
The occupier has free premises but has to pay an exorbitant rent for some convenience such as a counter or some other piece of equipment. The conditions remain good during the period of the hiring. By that means the occupier could never acquire any rights under the Landlord and Tenant Act, 1931. That device is still used by unscrupulous landlords who will continue to use it under this Bill. The device prevents tenants from acquiring the rights to which they are entitled, such as the right to a new tenancy, to compensation for disturbance and so on. When one hiring agreement is terminated the landlord may make a more onerous one.
The people being deprived of their rights are an essential part of the community. They are the self-employed—fitters, carpenters, electricians and others who enter into hiring agreements with unscrupulous landlords. They build up a trade and at the end of the hiring or licensing period must surrender the premises to the landlord. These are usually people of initiative and courage who build up goodwill in their business during the currency of the letting. They get married and build a house in the neighbourhood and are paying ground rent as well. At the end of this agreement they are faced with either destitution or a substitute agreement with more onerous terms, with a higher rent, or else they get out. In the meantime the landlord has the benefit of the goodwill which has been built up in respect of his premises, also the enhanced value of the premises and perhaps fittings that have been put in by the occupant. All that can still go on under this Bill.
The most typical example of this is the case where the petrol companies hire the petrol pump and perhaps some other equipment to the occupier for a rent of £30, £40, £60, £70 a week or maybe more depending on the situation of the petrol station. They let him go into occupation of the petrol station or the garage free of rent and of course he is debarred from gaining any rights under the Landlord and Tenant Act, 1931, and under this Bill as well.
Another mean device which is used by unscrupulous landlords and which will prevent a tenant, in this case a real tenant, not an occupier, from acquiring any rights under the Landlord and Tenant Act, 1931 or under this Bill, is that whereby the landlord refuses to give the tenant a lease for three years or more, three years being the statutory period under the 1931 Act to entitle a tenant to certain rights. He can let the premises for a period of three years less one day, or one month, and after the termination of that period the landlord takes a formal surrender of the premises. He usually demands the key, which terminates completely the tenancy of two years and nine months or whatever period less than three years it happens to be. During that period no benefits or rights have accrued to the tenant. On the following day the landlord can make a similar agreement, and so it can go on ad infinitum. The period of the second, third or fourth lease can never count along with the period of the first lease. There must be a full three-year period before he is entitled to any rights and a large number of periods of less than three years are useless.
Another variation on that theme is used by others in that at the end of the tenancy they compel the tenants to convert themselves into a company. They give them a lease for less than three years as individuals. Then they are turned into a company, and then perhaps on the next occasion they become another company under a different name and so on again ad infinitum. The tenancy of the company is different from that of the individual. At no time will the individual be the predecessor in title, as the legal phrase goes, of the company; nor will the company be the predecessor in title of the individual. The combined leases or tenancies can never benefit the tenant. There are various tunes which can be played on that instrument.
The same social ills and hardships follow from these arrangements. A man sets up a home and a family and has to face destitution or unemployment or else submit again to the landlord's demands for a new tenancy on new and more onerous terms. Again the section of the community which is affected are those people of some consequence and significance, people with courage and initiative. They are the people who suffer most under this insidious system. Nothing has been done by the Minister to rectify that situation. I am not suggesting this is done wholesale but it is done too often.
If a person is entitled to own his home he should not be debarred from owning his working premises where very often he spends a lifetime. The Minister tries to distinguish between premises which constitute the family home and premises connected with the person's occupation. He tries to justify the fact that he is doing nothing for those by saying that people are not so sensitive about occupation tenancies as they are about their homes. In other words, they are entitled to have their homes without any snags like ground rent, but the Minister would appear to think that they are not sensitive to the situation in regard to their working premises and that they do not need to be in full, freehold possession of premises in which they make their living.
I do not accept that thesis at all. The individual has a moral right and should be given a statutory right to purchase outright the premises in which he makes a living, be those premises a chip shop, a garage or anything else. These licences are only a subterfuge to enable the landlord to prevent people from having those rights. The courts are not allowed look behind the words in a written agreement to see what is the real meaning intended. There should be some provision in this Bill to deal with this situation.
The sort of people who are denied these rights are carpenters, fitters and so on. These are the people who, more than any others, help to keep the economy going. They should be catered for in this Bill. The legislation in this regard is so farcical as to bring into disrepute the whole law of the land. This Bill affects everybody, either directly or indirectly, but I suggest that it will be administered inadequately by county registrars through no fault of their own but because this new additional burden is being foisted on them. The Minister should consider seriously transferring the administration of this legislation either to the District Court or to the Circuit Court.
There is a provision in this Bill which renders the State and local authorities immune in respect of the purchase of freeholds. This is understandable in so far as certain types of local authority housing are concerned —for example, where a local authority would retain their hold on these dwellings so as to be able to cater for certain groups of people or for an ad hoc situation. However that is not so in the average case. What happens is that the local authority sell sites fully serviced to people such as civil servants, gardaí, and solicitors.
These people would not qualify now for local authority loans, but at a time when they did so qualify, provision was made in the mortgage for repayment during a period of 20 or 25 years. On the expiration of the term of the loan the mortgagee should have been entitled to full ownership of the property. People like to own their properties in full and without snags but in these cases the local authority insist on retaining ground rent rights for the further period of the lease which was either 74 or 79 years.
That situation is unjustified. Why should local authorities be above the law? Much emphasis is being placed on the provision in this Bill to prevent further ground rents being created and for the purchase of those that exist but why is there specific provision for the perpetuation of ground rent in some cases? Deputy Enright mentioned the necessity for a continuance of the situation in parts of the country. In some areas such covenants are necessary and desirable in order to prevent the despoiling of the countryside or of premises, but there is ample provision for local authorities under the planning laws to enable them to interfere in order to prevent any such despoliation.
The Minister must be aware that there is much dissatisfaction in relation to this provision. I trust that when he is replying he will be able to indicate a change of mind or at least to be able to assure us that there is justification for it.
There are some other matters in the Minister's brief to which I had intended to refer but I shall leave them for the moment as they may be more appropriate to the next Stage. Deputy Collins reminded us that in recent times there have been very few demands for ground rents in cases where the rents had been paid down through the years.
It was well known that many so-called agents have been collecting ground rents for years for landlords who do not exist and who have not existed for many years and they are pocketing the ground rents. The Minister should make a provision for the prohibition of that malpractice. Some onus should be placed on the agent or landlord to show his entitlement to a ground rent before making the demand.
This is a consolidating Bill but there are no reforms at all. The big snags which are seen in the 1931 Act are still there. The law can be abused and exploited by unscrupulous landlords. Unless the Bill is substantially amended it will not serve the purpose for which it was intended. Good legislation, especially legislation such as this which is social legislation, should reflect the spirit of the times, should reflect the problems, the desires and the consensus of the citizens. This Bill does not do that. The philosophy of the Just Society which we heard so much about some years ago is not reflected in this Bill. Unless the Minister makes substantial changes in this Bill he will fail to deliver the new deal which he and the Government promised to the tenants of this country.