Amendments Nos. 1 and 158 are related and may be taken together.
Residential Tenancies Bill 2003: Report Stage.
Minister of State at the Department of the Environment, Heritage and Local Government (Mr. N. Ahern)
I move amendment No. 1:
In page 15, line 18, after "AS" to insert "AN BORD UM THIONÓNTACHTAÍ CÓNAITHE PRÍOBHÁIDEACHA OR, IN THE ENGLISH LANGUAGE,".
I accepted two amendments which were made by Deputy Gilmore on Committee Stage, subject to checking the wording. These amendments are very similar but are in my own name with a slight change. Deputy Gilmore's point is now included.
I welcome this amendment although I cannot find the correction. I am not sure there is one. I would like to think that the form of Irish I used on Committee Stage is correct.
I am sure the Deputy's Irish is better than mine. I was told that there is a very slight modification of the wording used by the Deputy. The point he made is accepted.
It is probably my Connacht Irish.
Amendment agreed to.
I move amendment No. 2:
In page 15, line 31, after "on" to insert the following:
"the day of its passing save insofar as it involves a charge or a potential charge on public funds, in which case it shall to that extent come into operation on".
This is an important amendment as stated by my party leader on the Order of Business. The Bill to provide some minimal rights for tenants in the private rented sector has been in gestation since 1999. The commission on the private rented sector recommended that there should be legislation along the lines of what is provided for in this Bill. We waited a long time for the legislation to be published in the first place. The Bill was not published until May 2003, four years after the publication of the report on the private rented sector. Throughout that period we were repeatedly told that the drafting of the Bill was complicated and that there were all kinds of legal issues involved in it. While the Bill is comprehensive and lengthy, it does not appear to me that such legal issues were as complicated as we were led to believe.
The reality is that granting rights to 150,000 tenants in the private rented sector was not a priority for Government. That has been confirmed by the manner in which the Government has handled the Bill since its publication. There was no Second Stage debate until the autumn, Committee Stage took place after Christmas and we are now only starting Report Stage. It is obvious that the Government is dragging its feet in giving rights to tenants. It has made a conscious decision to place itself on the side of landlords and to delay this for as long as possible.
There is a further delay built into the legislation. It states that, under section 2, the Act should "come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions". At a later stage in the Bill, it is quite clear that provisions relating to the Private Residential Tenancies Board cannot come into operation until that board has put in place the new system of registration. We do not know how up to date the board is with that system. Even though this Bill may be enacted, tenants may have to wait a considerable time for its provisions to come into operation.
I propose in my amendment that the rights which this Bill gives to tenants should come into operation immediately on enactment of the Bill. I accept that there are administrative arrangements that must be put in place, particularly for the Private Residential Tenancies Board. It may take time for that to happen and that the commencement orders may take a little time. At the very least, the right that the Bill grants to tenants, such as the right to a four-year tenancy, should come into operation immediately once the Bill is enacted. If the Private Residential Tenancies Board is not established or the administrative arrangements are not yet in place, there may be some gap in time between the tenant acquiring the right and being able to assert it before the board. We have been a long time waiting for this legislation and many tenants have been evicted since the commission on the private rented tenancies board reported.
We are now in a situation where there will be two standards on rents. This Bill provides a regime whereby the initial rent will be the market rent and only one increase in rent per year will be allowed. If a tenant believes that the rent is in excess of the market rent, he or she can go to the Private Residential Tenancies Board and seek to have the rent reduced. That is one set of circumstances.
Unfortunately, the Minister for Social and Family Affairs has introduced a different regime for rent allowances. She has put a cap on rent allowances which is related to the limits which applied in health boards two years ago. She has also introduced a regulation under which if the rent exceeds the cap set by the health board, the tenant may lose the rent allowance entirely.
We have two standards or State regulations on private rents which will operate in parallel. One will provide that, under this legislation, the rate should be the market rent. The other will provide that, under the rent allowance regulations, rents should be linked to limits that applied two years ago.
Perhaps I might give a practical example. If a tenant has been denied rent allowance because his or her landlord increased the rent beyond the limit set by the health board, that person could lose the rent allowance or be denied an increase. If this legislation were enacted and came into operation immediately, that tenant could at least go to the residential tenancies board and argue that the rent set by the landlord was in excess of the market norm. I have several such cases in my constituency where, since the new regulations for rent allowances came in, I believe landlords have increased the rent to beyond the market rent. In some cases tenants with several years' tenancy have no way of having their rent re-examined with reference to the market. However, they would be able to do so if this Act came into operation immediately.
The amendment that I propose is that the provisions of the Act, other than those which require financial or other resources for their operation, should come into effect immediately. Where tenants have either lost or are at risk of losing their rent allowance, they could at least use the provisions of this Act to establish that their rents were now in excess of the market norm. This amendment is important. We divided on this amendment on Committee Stage, something that emphasises the importance that we attach to it. We have been waiting for a long time for legislation to give some rights to tenants. They cannot wait any longer. While they have been waiting a long time for the legislation to be enacted, it is unreasonable that they should have to wait for a further period thereafter until the Minister gets around to making an order bringing it into operation.
This Report Stage is being taken against the backdrop of the rental sector increasing from about 8% of all households in the 1990s to 12% today. It is climbing because of the Government's appalling record on housing. Since 1997, house prices have trebled. We have over 100,000 people on local authority waiting lists. We have an insufficient supply to meet the appalling level of demand because people are being forced either onto the local authority waiting list or into the private rented sector, which remains fairly unregulated. This amendment is important in that context.
The Government has dillied and dallied for four years in the making and one year in the passing of this Bill, which first came before the Dáil in June 2003. We are still at it and are now dealing with Report Stage in a piecemeal fashion. Next week it will be guillotined because we will not be able to deal with all the important amendments, of which there are many.
In the meantime, the Government, with all the houses being built and all the people trying to buy, has abolished the first-time buyer's grant and increased the tax take from each house to about 45% of its price. In other words, on a €300,000 house, the Government is getting between €130,000 and €140,000 in tax. There is stamp duty and there have been VAT increases. At the same time, the Government has abolished the first-time buyer's grant. It is therefore no wonder that the private rented sector has increased from 8% to 12% and will continue to grow.
Housing poverty is an issue. Like Deputy Gilmore, I come across examples of it every week at my clinics where people are being forced out and have to vacate their rented accommodation within the month because the landlord wishes to refurbish the property. They are being told on the other hand that, owing to Government actions, they must get out because the house they are renting is too big for the size of their family and their rent allowance will therefore be reduced. People are caught in a terrible dilemma. They cannot buy and find themselves unprotected in their agreements with their landlords. On the other hand, some are being squeezed by health boards. Of those living in the rented sector, at least one third are in receipt of supplementary welfare allowance and live in the poorest-quality Victorian-style accommodation, with Victorian-style agreements with landlords.
Recently I tabled a question to the Minister, the answer to which set alarm bells ringing. I asked the Minister if he had contact with local authorities regarding landlords complying with regulations on the registration of rented dwellings and if the number of houses registered as rented dwellings with local authorities was in line with the number established by the last census. The response was both interesting and alarming. The registration regulations as operated by the Minister's local authorities are a disgrace.
Local authorities are not complying with the regulations or ensuring that rented dwellings are being registered. Neither are they doing anything about hunting those who continue to offer Dickensian accommodation at the highest possible rents, thereby sucking funding out of the health boards and the Department of Social and Family Affairs for appalling accommodation. Local authorities stand idly by. There are 26,982 units registered by 17,445 landlords with local authorities. According to the 2002 census, there were over 141,459 private rented dwellings in the State. As Deputy Rabbitte said on the Order of Business, the rate of registration by landlords with local authorities is less than 20%. Local authorities have been doing very little about that.
The alarming aspect was in the next paragraph of the Minister's response, where he said he would be abolishing the 1996 registration regulations. I am now coming to the very point of the amendment. When the Residential Tenancies Bill 2003 is enacted, the 1996 registration regulations will be repealed and landlords will be required to register details of their tenancies with a private residential tenancies board. Is the Minister of State really serious about what he is saying? Does he expect a centralised board to ensure that dwellings are registered when local authorities in every part of the country are attaining a success rate of less than 20%? Is he merely throwing the floodgates open?
I acknowledge that he says that, if there is a dispute between a landlord and a tenant, the landlord will be unable to enjoy the privilege of going to the residential tenancies board to adjudicate on it and that there will be penalties if he or she does not register. However, the penalties provide for a fine of up to €3,000 or imprisonment for a term of up to six months. In all seriousness, does the Minister of State believe that the centralised residential tenancies board will be able to take a firm hand in the case of unregistered accommodation? I do not believe that and will oppose the abolition of the 1996 registration regulations. The Minister of State should beef it up along with other areas of enforcement in local authorities. He should give them the resources to police the violation or contravention of planning laws and enforce the registration regulations.
On Mr. Gilmore's point, the registration regulations are to be abolished, but when is the residential tenancies board to be set up? No firm date has been given. Is there to be a free for all in the area of quality of accommodation and as regards conditions to be imposed on tenants? This amendment is important and should be accepted.
I support the amendment. Unfortunately, because I am not a member of the Select Committee on Environment, Heritage and Local Government, I was not in a position to move amendments on Committee Stage. I say this because there was some criticism in the media of my party in the run-up to the election by a Deputy who stated in critical terms that Sinn Féin had not even attempted to amend this Bill. I have a number of important amendments here. I intend to address these briefly in an effort to try to get through as many of them as possible before this legislation is guillotined next week.
In general terms I support the thrust of what the two previous speakers have said. We can pass all the legislation we like, but if the Government chooses not to implement it, then we will have been wasting our time. The track record of the current Government speaks for itself. It has been deplorable in every aspect of housing. I hope this legislation — in an improved form on acceptance of a number of these amendments — will go same way towards alleviating the situation.
I accept this Bill has been a long time in gestation. Even since it was introduced in the House, matters have been slow. That was for a number of reasons. A large number of people wanted to speak on it and the fact that it was a big Bill meant that we lost our place in the queue from time to time because of urgent legislation from one Department or other — or legislation that had to be passed within a legal time limit.
However, section 2 is a standard commencement section such as we have in every Bill passed. It allows for the practical reality that it takes time for matters to be dealt with which can only be dealt with when the legislation is passed. There has to be an organised and strategic way for the board to do its business. The first thing to be done is to establish a board and have its members formally and legally appointed. An ad hoc board has been in place for some months, but the board has to be formally set up. The board will first concentrate on registration which is the database that will enable it to deal with so many other matters. It will not be able to handle or deal with complaints in an organised way until the registrations database is set up.
The Bill has been a long time coming — three years or so from the time the commission sat. I am as anxious as everyone else here to get this up and running. I do not envisage any further delay once we get it through the Oireachtas. However, everything cannot be done on day one, much as we would like that to happen. Once the board is appointed and starts working on the registrations, I can see Part 4, which deals with security of tenure being dealt with within a couple of weeks. I hope all sections of the legislation will be fully in operation within four or five months. We have to approach matters in an organised way.
I do not want to spend the day talking about our housing record. If I was allowed to talk for an hour on that, I could. We will spend something like €1.88 billion this year. Some 5,000 local authority houses are being built and 1,700 voluntary houses. Admittedly there are people on the waiting lists. As we take people off the lists they are replaced by others, but the entire philosophy and policy of the Government is to encourage supply in the overall market. With 68,000 houses built last year, that has helped, and is has helped enormously in the rental market. I hear what Deputy Gilmore is saying about people on rent allowances which may or may not apply in his own constituency. However, in other parts of the Greater Dublin area, we are getting complaints that in many cases rent allowance guides are higher than the market rent, which is somewhat crazy. That relates more to full houses. The guidelines can appear to be tight for the single person and the situation can look totally different as regards the three-bedroom semi category.
I have heard anecdotally that in west Dublin, for example, while the market rent might be €950 a month, a rent allowance person can pay up to €1,100 or €1,200. If that is refused the tenant can win his or her case under the appeal system. As regards the rules and regulations the Minister for Social and Family Affairs, Deputy Coughlan, has introduced in recent years, it could be argued that instead of freezing rent allowances, there was a case for her to reduce them, in line with trends in the property market. When rents were going up we had to raise the allowances sharply and frequently. Equally, if rents are coming down — which everyone agrees they are in the private world — maybe she should have followed suit.
On Deputy Allen's point, I despair of local authorities in some ways, going back to my time on them. I remember when Deputy Gilmore's colleague, Deputy McManus was the Minister of State in charge of housing in the mid-1990s when the regulations about registration at local authority level were brought in. As a local authority member I recall welcoming this initiative as a fantastic new source of revenue for the council, equivalent to £40 a head. It was a question of getting people to register.
It was not set up to raise money. It was set up to protect the tenants.
There was money to be made on it, but I agree the figures are appalling. If one analyses them in more depth, some counties and local authorities are better than others. The one of which I was a member is not the worst by any means. It might not be that pro-active, but at least it reacts to complaints received. I have seen figures for one large tourism county where, I am told, only one or two houses are rented. That is a joke. We all know it is a joke. The landlords did not co-operate and there was threatened or actual litigation over the years. Some local authorities might have given up on the job.
There are two sides to the equation. That is why we are opting for the board where a carrot-and-stick approach will be taken. It will be up to the centralised board to work on its database and registrations. Presumably, if all these protections are being given to tenants, landlords will not necessarily reform overnight. There are bound to be a few disputes, both ways. There will be a legal compulsion on landlords now to register. That is why we have attempted to take a balanced approach to many of the issues in the Bill. We have tried not to go too far in one direction. We believe we have both sides on board, which is difficult to achieve.
I hope landlords will register but measures are being put in place to deal with them if they do not. If tenants have grievances about rent, conditions or anything else, they will go to the board. Landlords, who will be compelled to attend, will be found out and caught at that stage.
I assure the House that this amendment is a standard procedure. It is intended to implement the various parts of the Bill as quickly as possible. Many of its key elements will be implemented within a month or six weeks and the entire Bill should be implemented within four or five months. This is a standard provision.
Deputy Morgan's comments were based on remarks made by me about Sinn Féin's failure to table amendments to the Bill on Committee Stage. My remarks were made in the context of my general expression of surprise and disappointment at the performance of Sinn Féin Deputies on issues that affect the people.
We could not table amendments.
I wish to deal with this issue because it was raised by Deputy Morgan.
The Deputies knows that is true.
I did not intend to discuss the matter today. I had not planned to cross swords with Deputy Morgan in this way but I will respond to his comments. It is not the case that Deputies who are not members of a select committee cannot find a way to table amendments. Deputy Fiona O'Malley, who is a constituency colleague of mine, is not a member of the committee in question. She succeeded in tabling amendments on Committee Stage even though she sits on the Government side of the House. It is not the case that amendments cannot be tabled.
Deputy Morgan attends meetings of the committee on a regular basis and I usually appreciate his contributions. He is aware that I often agree with his arguments. I was disappointed by Sinn Féin's performance during most of the Committee Stage debate on the Residential Tenancies Bill which affects 150,000 tenants in private rented accommodation. I refer to people who are experiencing the worst housing poverty and a great deal of disadvantage and exploitation. I stand over my criticism of Sinn Féin Deputies for not being present for most of the Committee Stage debate.
A great deal of work has to be done by Members of the Dáil in the committees of the House. We have to roll up our sleeves and argue the case for those we represent. Such work often receives no coverage because it is done in the absence of media personnel in the gallery. It may be the subject of little excitement and may not attract photo opportunities. Deputies who are elected have to do such mundane day-to-day work on behalf of those they represent.
We all do it.
I repeat that I am disappointed. The ESRI report, which was published recently, established that private rental tenants are experiencing the worst housing poverty in this country. They are being exploited. They have been waiting for almost five years for legislation that will give them basic rights. Deputy Allen and I spent a great deal of time arguing about the detail of the Bill on Committee Stage. We discussed the rights of tenants and other issues with the Minister of State. Deputy Morgan may have made two cameo appearances during the debate. He may have understood that he was not entitled to table amendments.
I was not entitled to table amendments.
I repeat that I was disappointed. When sleeves needed to be rolled up and work needed to be done on behalf of tenants who are being exploited, the Sinn Féin Deputies were not to be seen.
The problem mentioned by Deputy Gilmore will no longer exist after the next general election because Sinn Féin will have enough Deputies to cover all committees. I am looking forward to that day. I support this amendment as I have supported other amendments across party lines on many occasions, like other Deputies. It is disappointing that I cannot table amendments on Committee Stage because I am not a member of the relevant select committee. I tend not to copy amendments and I have not done so on this occasion. It is difficult for Sinn Féin to have a representative at all meetings because it has just five Deputies. After the next general election, it will have enough Deputies to cover all committees and all other business on a full-time basis rather than juggling as we currently do, and I look forward to that. I support amendment No. 2.
I confirm that we discussed this matter for many hours on Committee Stage. I appreciate the work being done by all Deputies. I will not get involved in a spat between Members on the Opposition side. The procedure under discussion is a standard one. When the Bill is passed, sections 7 and 8 will be enacted to provide for the establishment of the board. Section 1, which relates to interpretation, will be enacted almost immediately.
We will move on by concentrating quickly on implementing the registration provisions which provide a fundamental platform for adjudication. The board will not be able to resolve disputes between landlords and tenants until registration information is available to it. The registration database is the platform on which everything else will be done. It will be one of the first things to be done.
The Part 4 arrangements, which relate to security of tenure, will be put in place within a couple of weeks and the other sections will be implemented quickly thereafter. I expect the vast bulk of the Bill to be implemented within four or five months. On that basis, I hope Deputy Gilmore will not pursue this amendment. This section of the Bill provides for a standard procedure. There will not be any further delays. I recognise that we could have passed the Bill more quickly but there were a number of reasons for the delay.
I wish I could accept the Minister of State's statement that there will be no further delays. Our experience in respect of this Bill has been notable by the level of delay. Such delays would not have happened if legislation had been promised to any other section of Irish society. Would farmers have to wait for five years for the enactment of legislation relating to an agricultural matter? Would such legislation include a provision stating that they might have to wait for a further four or five months after it has been enacted? The Minister of State has said that we may have to wait for some months before it is all put in place. Would trade union members have to wait for five years for legislation relating to something that had been negotiated in the partnership programme? The commercial interests which are eyeing up our airports have not had to wait five years for the introduction of legislation on the break-up of Aer Rianta.
The Deputy should ask them. They might say they have been waiting 25 years.
We have a new caring Government.
I wish to refer to the ESRI's recent report on housing poverty. It was compiled by Dr. Tony Fahey who has done excellent work over the years to analyse the housing market and, in particular, the levels of housing poverty. The report showed that those suffering the worst housing poverty and who are worst affected by the housing crisis are tenants in private rented accommodation. For five years those tenants have been living on a promise of legislation to provide them with what will be very minimal rights. While the Bill contains many flaws at least it will represent an improvement for tenants.
The Bill was delayed in publication and has been delayed on each Stage in the House. We have waited since February for Report Stage to be taken. On the day when Report Stage is taken, half of the time originally allocated has been hived off for the Government's latest pet project, which will ultimately lead to the privatisation of the country's airports. Every time we get to discuss legal rights for tenants, the Government makes us wait. The response of the Minister of State today is not that the tenants will get these rights when the legislation is passed, but they might have to wait a further four to five months for all of the provisions in the Bill to become operational by way of ministerial order.
The Minister of State told us there would be no delay. There already has been a five-year delay in publishing the Bill and a five-month delay between completion of Committee Stage and the taking of Report Stage. With 150,000 tenants, many of whom are in poverty and with no legal protection, I am not prepared to accept further delay on their behalf. To echo Mr. de Valera who once said the Labour Party must wait, we have a new version that tenants must wait. Tenants cannot wait any longer for legal rights that are overdue.
The Minister of State stated that in some cases the market rents are less than the limits allowable for rent allowance. I agree and this is precisely the point I have been making. There is no point in that being the case if tenants cannot assert it. What happens to a tenant who is not paying the market rent or whose landlord is clearly charging more than the market rent? While it can be suggested that the tenant could move elsewhere, we are talking about people's homes. People may have children in school in the locality or other family commitments. They cannot simply up and go. The purpose of the legislation was to provide security of tenure for tenants and some kind of decent regime in the assessment of their rents.
We have waited long enough for this legislation. Tenants should not have to wait any longer for the legal rights they are due. On their behalf I am not prepared to wait for a further number of months at the pleasure of the Minister of State until he decides to make these provisions operational. The Government has shown no urgency in bringing this legislation to completion.
Amendment put.
The Dáil divided: Tá, 41; Níl, 56.
Tá
- Allen, Bernard.
- Breen, Pat.
- Broughan, Thomas P.
- Bruton, Richard.
- Burton, Joan.
- Connaughton, Paul.
- Coveney, Simon.
- Crowe, Seán.
- Cuffe, Ciarán.
- Deasy, John.
- Deenihan, Jimmy.
- Durkan, Bernard J.
- English, Damien.
- Gilmore, Eamon.
- Gogarty, Paul.
- Gormley, John.
- Gregory, Tony.
- Harkin, Marian.
- Hayes, Tom.
- Kehoe, Paul.
- Lynch, Kathleen.
- McGinley, Dinny.
- McGrath, Finian.
- McHugh, Paddy.
- McManus, Liz.
- Mitchell, Olivia.
- Morgan, Arthur.
- Murphy, Gerard.
- Naughten, Denis.
- Neville, Dan.
- Ó Snodaigh, Aengus.
- O’Shea, Brian.
- O’Sullivan, Jan.
- Pattison, Seamus.
- Penrose, Willie.
- Rabbitte, Pat.
- Ring, Michael.
- Shortall, Róisín.
- Stanton, David.
- Timmins, Billy.
- Upton, Mary.
Níl
- Ahern, Noel.
- Ardagh, Seán.
- Aylward, Liam.
- Blaney, Niall.
- Brady, Johnny.
- Brady, Martin.
- Callanan, Joe.
- Callely, Ivor.
- Carey, Pat.
- Carty, John.
- Cassidy, Donie.
- Coughlan, Mary.
- Cregan, John.
- Cullen, Martin.
- Davern, Noel.
- de Valera, Síle.
- Dempsey, Tony.
- Devins, Jimmy.
- Ellis, John.
- Finneran, Michael.
- Fitzpatrick, Dermot.
- Fleming, Seán.
- Grealish, Noel.
- Hanafin, Mary.
- Haughey, Seán.
- Hoctor, Máire.
- Jacob, Joe.
- Kelleher, Billy.
- Kelly, Peter.
- Killeen, Tony.
- Kirk, Seamus.
- Lenihan, Brian.
- Lenihan, Conor.
- McCreevy, Charlie.
- McGuinness, John.
- Moloney, John.
- Moynihan, Donal.
- Moynihan, Michael.
- Mulcahy, Michael.
- Nolan, M.J.
- Ó Fearghaíl, Seán.
- O’Connor, Charlie.
- O’Dea, Willie.
- O’Donnell, Liz.
- O’Donoghue, John.
- O’Keeffe, Batt.
- O’Malley, Fiona.
- Parlon, Tom.
- Power, Peter.
- Roche, Dick.
- Sexton, Mae.
- Smith, Brendan.
- Smith, Michael.
- Treacy, Noel.
- Wallace, Dan.
- Wilkinson, Ollie.
Tellers: Tá, Deputies Broughan and Durkan; Níl, Deputies Hanafin and Kelleher.
Amendment declared lost.
Amendment No. 3 not moved.
Amendment No. 4 is in the name of the Minister of State. Amendments Nos. 5 to 7, inclusive, and amendment No. 12 are related. It is proposed to take amendments Nos. 4 to 7, inclusive, and amendment No. 12 together.
I move amendment No. 4:
In page 16, lines 19 to 21, to delete all words from and including "a" where it secondly occurs in line 19 down to and including "1980" in line 21 and substitute the following:
"acquire, under Part II of the Landlord and Tenant (Ground Rents) No. 2 Act 1978, the fee simple".
These amendments are linked. Basically, we are taking on board some of the amendments proposed on Committee Stage.
On amendments Nos. 4 to 12, the first of these amendments excludes from the scope of the Bill persons who are entitled to acquire the fee simple interest to their dwellings in section 3(2)(d). The second amendment relates to the exclusion of public authority accommodation. These are issues that were discussed on Committee Stage. The amendment also extends the definition of “public authority” to include an explicit reference to the Commissioners of Public Works. As I mentioned earlier, it has been proposed at the request of the Chief State Solicitor’s office which acts for the OPW. It specifically asked that the OPW be mentioned in this section.
The purpose of my amendment No. 5 is to ensure that this Act will not apply to properties where the occupier of a property is entitled to a fee simple which, in plain terms, is absolute ownership. That is the reason I tabled this amendment.
Is amendment No. 3 included in this grouping?
Amendment No. 3 is out of order as it involves a charge on the Exchequer. Amendments Nos. 4 to 7, inclusive, and 12 are being taken together.
Amendment No. 3, which was in order, proposed to delete the words, "a dwelling let by or to a public authority", from the list of exclusions. The Minister of State said he would exclude dwellings that were let by a public authority. People do rent dwellings from their employers such as the Office of Public Works, the Department of Defence and health boards. There are even cases where people rent dwellings from local authorities that are not covered under the Housing Act. To all intents and purposes, these fall into the private rented dwellings category but the landlord is a public body. Under the terms of the Bill, they would not enjoy the protection of the legislation. Instead, they would find themselves marooned between the Housing Act, of which they will not enjoy any protection, and this Bill, which would not define them as tenants. People who rent from public authorities other than local authorities under the Housing Act, will therefore find themselves with no rights at all. Will the Minister of State clarify if these cases are included in the Bill? I understood that these amendments intended to bring them within the scope of the legislation.
What are the implications of amendment No. 4 on the ground rents and fee simple issue?
With your permission, a Leas-Cheann Comhairle, I wish to speak to amendment No. 7. Amendment No. 7 seeks to ensure that the Bill does not apply to the properties in which the landlord also resides. It is designed to tighten up the drafting of the Bill and give certainty to the Minister of State's intention. I ask him to accept this amendment.
On Committee State, Deputy Gilmore asked for a reconsideration of some of the exclusions from the scope of the Bill deriving from the definition of public authority. Many Departments and State agencies were subsequently contacted and much information was gathered on the issue. In such cases, tenants were in receipt of more favourable terms of rent and security of tenure than would apply under the provisions of the Bill. As such, it was felt to be inappropriate to enforce their inclusion.
This Bill seeks to regulate the private rented sector, as defined in section 152(4) as, "the sector of commercial activity in the State consisting of the letting of dwellings". The exclusion of non-commercial dwellings where the tenant receives more favourable treatment from a public sector landlord, and the strict criteria governing eligibility to occupy such accommodation, are entirely appropriate. It is also necessary to exclude accommodation to which the State Property Act 1954 applies. Unless I receive a specific request from a State body for inclusion within the Bill, I do not consider an amendment to include such accommodation to be warranted.
The Office of Public Works lately requested that the definition of public authority be amended in section 4 to include a specific reference to the Commissioners of Public Works. This was to put beyond doubt that the Bill did not apply to accommodation owned by them. In cases of employment-related accommodation, the terms and conditions for the tenants are much more favourable than what the Bill proposes.
I accept the substance of Deputy Allen's amendment No. 5 that deals with the issue of fee simple. Amendment No. 4, therefore, proposes to exclude dwellings occupied by persons entitled to acquire the fee simple interest. The new provision is in substitution for the reference to reversionary leaseholders.
I do not accept the proposal in amendment No. 7 to exclude accommodation where the landlord resides in the building. Section 25 contains a provision enabling a landlord of a rented unit in a building that originally consisted of one dwelling and was converted in two units to bring the letting outside of the application of Part 4 where the landlord resides in the other unit. This is an adequate exemption. The effect of Deputy Allen's amendment would be to exclude from all provisions all rented units in an apartment block where a landlord resides in the same block. The same block could contain both rented and privately-owned units.
Point taken.
Regarding amendment No. 6, the legislation will only affect tenancies of six months or longer. However, is there a definition for "holiday" in the Bill? For example, on the west coast, many tenants rent holiday homes over the winter but are told to get out when the holiday season arrives. This could be resolved if the period was reduced from six months to three.
I do not accept that as the Bill applies to the private rented sector and not the holiday home industry. The Bill is inappropriate to the occupation of a dwelling for the purpose of a holiday. There is no established need for the provisions of this Bill to apply to holiday lettings. A normal holiday period is two to four weeks and a holiday home is a place where one goes away from one's normal place of residence. If someone living in a house in, for example, Carlingford, for six months, rents it out as a holiday home during the holiday season, it still remains his or her main place of residence. As it is not technically a holiday home, the provisions of the Bill apply. If an individual was renting a holiday home for nine months, he or she would have the right to a four-year lease.
I accept that explanation. I am glad it is on the record. However, could we put that definition in the legislation?
The explanation stands to reason.
Amendment agreed to.
Amendments Nos. 5 to 7, inclusive, not moved.
Amendments Nos. 8 and 11 are related and may be discussed together.
I move amendment No. 8:
In page 16, between lines 35 and 36, to insert the following:
"(3) For the avoidance of doubt, a ‘bedsit' shall constitute a dwelling under this Act.".
Though this is essentially a technical amendment it is vital that we clarify this point regarding a bedsit constituting a dwelling. It should be made clear whether this Bill covers bedsits. Many people in Dublin city and across the country occupy what have become commonly known as bedsits and these people ought to be afforded the same level of protection under the Act as any other tenant. This amendment will copperfasten these people's rights under the Residential Tenancies Act when it becomes law.
I agree with Deputy Allen's point. We had a debate on this matter on Committee Stage, when the Minister undertook to consider the arguments we made with a view to addressing them on Report Stage. I cannot find a ministerial amendment which addresses this point, so I hope he will accept either Deputy Allen's formula or the one I proposed.
The basic point is valid. Many people live in what are commonly called bedsits which to all intents and purposes are self contained, but which often share bathrooms or kitchens with other bedsits in the same building. It is important that people in such accommodation are covered by the legislation. I had hoped the Minister would have his own amendment arising from the discussion on Committee Stage but cannot find it on the list. Perhaps I have simply not spotted it. If there is no such amendment from the Minister, I propose he accept either of the two amendments I and Deputy Allen tabled.
We were happy with they way the Bill was originally worded but as people had expressed some concern, on Committee Stage we inserted an amendment which I thought resolved the matter. Consequently these two amendments are superfluous. The definition of dwelling in section 4(1) refers to a self-contained residential unit. That in turn is defined as including bedsit accommodation.
So bedsits are in?
Yes. They were always in but on foot of an amendment on Committee Stage they are now specifically included. The definition of dwelling now refers to a self-contained residential unit rather than house-share, so to speak. That in turn is defined as including bedsit accommodation. That was covered by the amendment we tabled.
Where is the reference?
It is in section 4(1). We clarified the issue on Committee Stage and it is quite clear.
Amendment, by leave, withdrawn.
Amendments Nos. 9, 10, 153, 154, 164 and 165 may be taken together by agreement.
I move amendment No. 9:
In page 16, between lines 40 and 41, to insert the following:
"‘child' includes a person who is no longer a minor and cognate words shall be construed accordingly;".
On Committee Stage we discussed the definition of "child" and whether it should include "adult offspring". The first of these technical amendments inserts a definition of "child" into the interpretation section. The effect of this is to provide that the term "child" unless the context otherwise requires, includes an adult offspring. The term "child" is used in the definition of "family member" in section 35 and also in amendment No. 76, which I propose as an amendment to section 39, to enable a Part 4 tenancy to continue in the case of a family where the family member who is the sole tenant dies. We had an in-depth discussion on this. In both cases the term refers to adult children of the tenant.
The remaining four amendments listed are all technical, relating to the citation of the Companies Act. Some of those amendments relate to the issues raised by Deputy Gilmore. A further Companies Act was enacted at the end of 2003 so the phraseology now relates to the Companies Acts 1963 to 2003 rather than to 2001. We have tried to deal with the issues raised on Committee Stage and I trust Deputy Gilmore considers that sufficient.
Amendment agreed to.
I move amendment No. 10:
In page 16, line 42, to delete "2001" and substitute "2003".
Amendment agreed to.
Amendment No. 11 not moved.
I move amendment No. 12:
In page 17, between lines 34 and 35, to insert the following:
"(b) the Commissioners of Public Works in Ireland,”.
Amendment agreed to.
Amendments Nos. 13 to 16, inclusive, may be taken together by agreement.
I move amendment No. 13:
In page 18, line 29, before "in" to insert "(whether in the singular or plural form)".
These grouped amendments are technical amendments to include references to the apartment complex provisions which were notified on Committee Stage.
Amendment agreed to.
I move amendment No. 14:
In page 18, between lines 29 and 30, to insert the following:
"(a) the second of the references in section 12(1)(h),”.
Amendment agreed to.
I move amendment No. 15:
In page 18, line 37, to delete "section 25.” and substitute “section 25, and”.
Amendment agreed to.
I move amendment No. 16:
In page 18, between lines 37 and 38, to insert the following:
"(d) the second of the references in sections 136(h), 187(1) and 188(1).”.
Amendment agreed to.
I move amendment No. 17:
In page 19, between lines 27 and 28, to insert the following:
"(3) Subject to subsection (4), in this Act ‘costs’, in relation to a matter being dealt with by the Board, a mediator, an adjudicator or the Tribunal or a determination or direction made or given by it or him or her, does not include—
(a) legal costs or expenses, or
(b) costs or expenses of any other professional kind or of employing any person with technical expertise that are connected wholly or mainly with the provision of evidence for, or the presentation of one or more issues at, the proceedings.
(4) Despite subsection (3), the Board or, with the consent of the Board, a mediator, an adjudicator or the Tribunal may if, in its or his or her opinion the exceptional circumstances of the matter so warrant, determine that any element of costs the subject of a determination or direction made or given by it or him or her shall include costs referred to in paragraph (a) or (b) of that subsection.”.
The amendment inserts two new subsections into section 5 to define "costs", as referred to in different sections dealing with disputes, that may be referred to the board and the redress that may be included in the board's determination order to exclude generally professional and legal representation costs. We are trying to exclude legal advisers and the resultant costs. We hope that the operation of the board will not result in tenants or landlords going in with a gaggle of legal representatives
Subsection (4) allows for the award of legal and professional costs incurred in dispute resolution proceedings where the board considers that exceptional circumstances apply. The intention, however, is that legal costs would not normally be awarded by the board because the practice of routinely awarding costs would likely result in an undesirable outcome of parties automatically using legal representatives. We want to exclude it except where the board considers the matter exceptional and allows it for whatever reasons. If we do otherwise, the whole system will be too legalistic from day one.
I agree with the general objective that the board should operate without recourse to huge legal costs. Looking at similar boards, we can see that was always the original intention. When the Employment Appeals Tribunal was established, one rarely found legal representatives appearing before it. In the course of time, however, particularly as cases were appealed from the tribunal into the courts, it became more common. Now legal representatives of both employers and employees regularly appear before the Employment Appeals Tribunal. The intention is that people will appear individually before the board but we can expect in the course of time that, as issues end up being appealed in the courts, lawyers will start appearing at the board.
I am also concerned that there are provisions elsewhere in the Bill under which the board, in certain circumstances, can award costs against a tenant but there is no provision to award costs to a tenant.
The board has extensive powers but we are trying to exclude the awarding of costs. I hear the argument about what might happen over time but subsection (4) allows for the awarding of legal and professional costs where the board considers that exceptional circumstances apply. It may be that in time the board takes a more lenient approach and there are many exceptional circumstances but it must have the power to award costs. That practice may become more common but we hope it will not. This amendment is necessary to lay down what we hope will apply.
The Deputy is talking about section 115 of the Bill. It will make clear that a determination ordered by the board may award costs as well as damages to any of the parties to a dispute. "Damages" means compensation in money for a non-monetary loss suffered by a person as distinct from costs incurred. The absence of a reference to costs was inconsistent but later amendments to section 115 will clarify the points raised by the Deputy. We are giving the board the authority to award legal costs in special circumstances but we hope they will not arise too often.
Amendment agreed to.
I move amendment No. 18:
In page 19, line 36, after "by" where it secondly occurs to insert "registered".
This is a sensible amendment to address the delivery of notices and I hope the Minister of State will accept it. Post sent to a multiple unit building can go astray and might never reach the person it is intended to reach. By insisting notices are sent by registered post, there is a safeguard for the recipient of the communication.
We discussed this on Committee Stage and my attitude has not changed. This may have been a good idea 20 years ago but the use of registered post for service of notices has changed in recent legislation because it is unsatisfactory. If the addressee is not at home to accept delivery, the postman will leave a note to inform that person to contact the main office. If he does not want to get the registered letter, he will avoid it. Registered post is fine in theory but not in practice. People will not go to the main office to collect a letter they know they do not want. It has turned around from what was intended and people are using this device.
How do they know what they are getting until they get it?
They know. The use of registered post for service of notices has been deliberately excluded from much recent legislation because it does not work.
Whoever is excluding it is out of touch with the reality because people who say they have sent a communication can be contradicted by the person who was supposed to receive it. Whom do we believe? This offers a level of protection for the intended recipient. It is a minor amendment but it is fundamental to the realities of life. I had assumed the Minister of State would accept this.
We discussed it on Committee Stage and, if I thought it was meaningful, I would accept the amendment. We have considered the issue and we must have regard for what is happening generally. The use of registered post for service of notices has been deliberately excluded from the Bill and other recent legislation on the grounds that it does not work satisfactorily. If the addressee does not happen to be at home to accept delivery, the postman leaves a note saying the item is available for collection within the next seven days at the relevant delivery office, often not the local post office but the sorting office, so to speak. It has not worked out. It is being dropped as it is not what it used to be.
Does the Minister of State think An Post should cease offering a registered letters service?
It is not for me to advise An Post.
That seems to be the Minister of State's thinking.
The system whereby a letter is delivered and somebody signs for it is not as foolproof as it used to be and has not had the results we would like. This is particularly so if people know or think they know what is in the letter. People can be selective about the post they accept.
I am pressing the amendment. I am amazed the Minister of State will not accept it.
Amendment put and declared lost.
I move amendment No. 19:
In page 20, line 46, to delete "€250" and substitute "€500".
This amendment is to increase the daily fine from €250 to €500. The €500 daily fine is in line with some of the more recent legislation which has come from the same Department, for example, the Licensing of Indoor Events Act 2003 has a daily fine of €500.
Ditto.
I am not inclined to accept the amendment. My legal advice is that there is no particular standard for daily fines. The amount in the Bill, up to €250 per day, is in line with much other legislation, although cases can be found where it is higher. However, of more significance is the specific fine on summary conviction of up to €3,000 or up to six months' imprisonment or both a fine and imprisonment, which should provide a significant deterrent against offences under the Bill. We think it sufficient. It might not be the highest fine but it is equivalent to others.
I know the legislation provides for a fine of €3,000 on summary conviction or a prison sentence of six months. Somehow, I cannot see a landlord being sent to prison for non-compliance with the terms of this legislation. If, for example, tactics such as the switching off of water or electricity are used by landlords, as they sometimes are, the daily fine is a more meaningful and potent remedy.
It is a question of judgement. The fine is up to €250 per day and a court might impose a daily fine which is considerably less than that. The purpose of the maximum daily fine is to signal to the courts and the Judiciary the intent of the Legislature and to underline the seriousness of the legislation where somebody has been found in breach of the legislation to a sufficient extent that it was necessary to take him or her to court to establish the facts. The amount of the daily fine should indicate this. I reiterate that it is a matter of judgement but I feel that a sum of €500 would concentrate the mind better for a landlord neglecting a property, not carrying out essential repairs or not providing essential services.
The Minister of State should accept the amendment, which would focus the mind and stimulate action where it was required.
We have considered this and think the Bill sufficient in this regard and in line with much other general legislation. Members should consider that a fine of €250 per day works out at a fine of €1,750 per week, which is a significant sum.
Amendment put and declared lost.
Amendments Nos. 20, 25, 49 and 50 are related and may be taken together by agreement.
I move amendment No. 20:
In page 21, line 21, after "under" to insert "a tenancy agreement or".
This is an amendment to ensure that the obligations of landlords which are set down in the Bill are in addition to whatever additional obligations may be imposed by the tenancy agreement.
This was discussed previously. While I do not consider that the amendments were necessary, I undertook to reconsider the operation of section 18 to see whether it required amendment to achieve the same objective as was being put forward. On foot of that consideration, I propose amendment No. 49 to section 18(3) to delete the words "every other part of". This will clarify that the imposition of additional obligations on a tenant by means of a lease or tenancy agreement may only be done if consistent with the Bill. This, in conjunction with subsection (1), means that a landlord may not transfer onto the tenant any of his or her statutory obligations under the Bill. This goes a long way towards satisfying the Deputy's requirement and I hope he will consider withdrawing his amendment.
Given the Minister of State's response, I withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 21, 22, 24, 26 and 27 are related and may be taken together by agreement.
I move amendment No. 21:
In page 21, line 22, after "enactment" to insert "(including in particular an enactment relating to standards)".
This is an amendment suggested by Threshold which drew attention to the continuing need to comply with the 1992 Act and the 1993 standards regulations. We had a discussion on this on Committee Stage and I hope the Minister of State will be able to respond positively to that discussion.
Amendment No. 24 is designed to ensure that landlords no longer offer hovels to tenants. In the absence of an effective rented dwellings register, local authorities have for different reasons failed in their responsibilities to inspect rented dwellings. In light of a survey carried out last year of student accommodation in Dublin which suggested that a significant percentage of the accommodation surveyed was in breach of building, fire and safety regulations, an amendment such as this is necessary. I ask the Minister of State to accept it.
Debate adjourned.