Before the House proceeds with the Report Stage of this Bill, may I say that it has been agreed—I think Senator Hearne will bear me out in this—that the Bill should be recommitted for the purpose of taking the amendments tabled, but not in respect of the sections?
Rent Restrictions Bill, 1944—Report (Recommittal).
Question proposed—"That the Bill be recommitted for the purpose of taking the amendments"—put and agreed to.
I move amendment No. 1:—
In page 5, Section 2, sub-section (1), lines 43 and 44, to delete the words "and which are or would but for any Act be chargeable" and to insert in lieu thereof the following words "and which by any Act are, or but for any Act would be, chargeable."
This was merely a drafting amendment which I introduced on the Committee Stage of the Bill and withdrew because I thought it could be better drafted. Since then I have had an opportunity of consulting a number of people as to the alternative method which I considered introducing, but as that apparently would have difficulties, I am now resubmitting the amendment to the House as a drafting amendment. The original draft was a little bit obscure because it suggested that the incidence of rates on the tenant was imposed otherwise than by an Act. All that this amendment does is to make it clear that, where the rates have been imposed by virtue of the Local Government Act of 1898, or were transferred by reason of any other Act, the tenant is to be liable for them.
I am accepting the amendment.
Amendment agreed to.
Government Amendment No. 2:—
In page 5, Section 2, sub-section (1), to delete lines 50 and 51, and insert in lieu thereof the following:—
the expression "statutory tenant" means a person being either—
(a) a person who retains possession of any controlled premises after his contractual tenancy therein (not being a tenancy to which Section 45 of this Act applies) has terminated, or
(b) a person who retains possesssion of any controlled premises under sub-section (2) or sub-section (3) of Section 39 of this Act, or
(c) a person who retains possession of any controlled premises under Section 58 of this Act;
This amendment deals with the expression "statutory tenant". I am proposing to delete lines 50 and 51, and to insert in lieu thereof three new paragraphs. The amendment is practically the same as one that was moved on the Committee Stage, and that, after a good deal of discussion, was withdrawn. On the Committee Stage I said that I would bring forward an amendment on Report which would give a more satisfactory definition of "statutory tenant". I am doing that in this amendment. The three new paragraphs in the amendment define the expression "statutory tenant". The only change, I think, compared with the former amendment is in regard to the words "by virtue of this Act", taken out of paragraph (a). It was felt that, as Senator Ryan said, to leave these words in would be to beg the question. I think that the House will agree that this is an improvement.
Amendment put and agreed to.
I move amendment No. 3:—
In page 5, Section 2, sub-section (1), to delete lines 50 and 51, and substitute therefor the following words:—
the expression "statutory tenant" means a tenant against whom an ejectment for recovery of possession of the premises was issued by the landlord and on the hearing thereof an order for possession was refused by the court on the ground that he was entitled to retain possession of the premises by virtue of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, or of any Act thereby repealed, the Increase of Rent and Mortgage Interest (Restrictions) Decree, 1921, the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, and in respect of whom a similar Order shall be made under Section 39 of this Act and also a sub-tenant retaining possession after the interest of the tenant shall be terminated by the court.
The object of my amendment was to confine the expression "statutory tenant" to cases in which an ejectment was being brought by the landlord and refused because of the Acts, or the Order of 1921. There was a decree of Dáil Eireann of 1921, of which I have a copy. However, the Minister, apparently, is not prepared to accept my amendment. My contention was that once you make a tenant a statutory tenant you destroy his title, and if the amendment were accepted it would do away with a lot of the amendments that we have under Section 40 of this Bill, and would confine the wording down to a very narrow meaning. The definition in the Acts, and as it was first in this Bill, simply had to do with a person who retains possession "by virtue of this Act". That was a very indefinite way of putting it. The courts—judges— have held that it meant anybody whose rent was increased or reduced, and that every such tenant was a statutory tenant, and even under the Act of 1926 it was declared that no notice to quit was necessary at all. Of course, if the Minister does not see his way to accept my amendment, I shall have to withdraw it.
Of course, I think the Senator will agree that his amendment had really to do with business premises.
Well, yes, it had.
Well, we hope, within the next 12 months, to bring in an amendment of the Landlord and Tenant Act in order to make that position right, but I think that if this amendment were to be accepted now it would lead to a lot of trouble.
Yes, to a flood of wholly unnecessary legal proceedings.
Yes, I am afraid so.
No. It would mean that they could come under the Landlord and Tenant Act of 1931.
Only in an odd case.
Well, with the consent of the House, I shall withdraw the amendment.
Amendment No. 3, by leave, withdrawn.
I move amendment No. 4:—
In page 5, Section 2, sub-section (1), after line 55, to insert the following words:—
the word "lawfully" means—
(a) in relation to the subletting of any premises let in accordance with the terms of a written contract or agreement which includes clauses governing the sub-letting of the whole or any part of such premises that such subletting is or has been made in accordance with the relevant clauses of the contract or agreement,
(b) in relation to a subletting made under a parole agreement that such subletting is or has been made on notice in writing to the landlord of not less than 28 days and the landlord has either—
(i) given his consent in writing to the proposed subletting on or prior to the expiration of the notice of subletting, or
(ii) not taken any action in relation to the notice of sub-letting given by the tenant:
Provided that nothing contained in the foregoing definition shall affect the right of any tenant or sub-tenant to retain possession of a tenement held by him on the operative date.
I have suggested an amendment to Sections 38 and 39, the effect of which would be to define the word "lawfully", used in these sections. I have pointed out already, that there is a certain amount of doubt at present as to what is meant by the term "lawful", and I think it would be desirable to clear that matter up and have this Act self-contained. If that were done, the necessity of referring to other Acts or, as some Senators said, to other legal dictionaries, would be avoided. One argument in favour of this amendment is that all well-organised offices conducted on behalf of or owned by landlords insist upon having letting agreements in connection with their tenancies. Now, that applies to rich landlords. They have all the necessary organisation at their disposal, and in the normal course of events they would not dream of letting a house without some written document governing the question of letting or subletting, but I have spoken on previous occasions here on behalf of the poor type of landlord. I know many poor landlords—many of them have approached me for help from time to time in connection with the difficulties they meet with day after day. These people very often do not realise what is involved in letting a place without setting forth in writing the conditions that should be attached. Some concern was expressed by one or two Senators on a previous occasion on the fact that many people do not know the law. That is quite true. Many people do not know the law, and amongst these people may be a number of the poorer classes of landlord, such as widows and so on. They do not know the law, and very often do not know what they are letting themselves in for it they set a house without some written condition governing the question of subletting. The intention of the law is that subletting should not be allowed without the written consent of the landlord and I think it would do no harm if we put the onus partly on the landlord and partly on the tenant of ensuring that that is carried out. When such a condition is not carried out, the landlord sometimes suffers very grievous wrongs: the house can be sub-let again and again and become, in a sense, a type of human rabbit-warren, and that is not good for the people concerned or for the State, because it creates social evils of a very serious type.
Taking the present condition of education and the general spread of knowledge into account, I think it would be right for a law, which purports to be a benevolent one, to throw a little of its mantle over the poorer type of landlords that I have in mind and give them some form of protection in the way suggested in the amendment.
The suggestion has been made that these various Rent Restrictions Acts would probably stop all private building, and I am afraid that the tendency will be more and more in that direction. Of course, a lot depends on the various ideologies of the people concerned. Some people might think that that is a good thing, while other people may think that it is entirely a matter of the absolute ownership of private property. However, there are different schools of thought on that question, and I think that anything that would induce people to build houses by private enterprise should get every encouragement from this House. This would not alter the law as it stands, but it would give a little help to the poorer type of landlord. I suggest that it will not change matters in the slightest, and, therefore, I hope the House will accept the amendment.
While sympathising with the point of view of the Senator, I think there is no necessity for this amendment, because, as the law stands, premises are not lawfully sublet if they are sublet in breach of an agreement in the lease or other contract of tenancy under which the lessor holds. That would apply even if they were let by parole and the parole letting were a breach of such agreement. It is perfectly true that by the Landlord and Tenant Act the consent of the lessor cannot be unreasonably withheld, but it is equally well established in law that the consent of the lessor to such a subletting must be demanded first of all, and if it is not demanded, even though the refusal would have been unreasonable, yet the sub-letting is void.
I wish to oppose this amendment. I do not think that it is an amendment designed to express more clearly what the legislature means by the word "lawfully" as set out in Section 39 of the Bill. It is an indirect way of restraining the sub-letting of a house which at the present time may be sublet lawfully. If there is agreement between the landlord and tenant, whether in writing or by parole, which does not contain any restriction upon subletting then the tenant may sublet and such subletting is lawful. If there is provision in a tenancy agreement between landlord and tenant restricting or prohibiting sub-letting without the consent of the landlord any breach renders the subletting void. Section 39 of the Bill, sub-section (2), applies to premises that have been lawfully sublet, that is, premises let by a landlord to a tenant without any breach of the tenant's agreement with his head landlord.
Senator O'Reilly's amendment in my mind is designed to introduce a parole agreement between landlord and tenant, so to speak, a provision dealing with subletting which is not already in the original agreement. The second part of his amendment provides for the position where there is a parole agreement. Now at the present time a tenant is quite free to sublet but this amendment imposes a restriction upon the tenant. He must give notice in writing to his landlord, 28 days notice, before making a subletting. That is a restriction of the right of the tenant under the existing law in cases where there is no provision in the agreement with the head landlord. It is, therefore, unnecessary for the purposes of this Bill that the word "lawful" should be defined in this manner. As I said, it is an indirect way of restraining a subletting that is legal. In fact I think it would create a good deal of confusion later on as to whether premises were lawfully sublet in accordance with the provisions of the amendment.
I oppose this amendment also on the same lines, practically. If this amendment is carried it will result in a provision being inserted that is contrary to some of the amendments that the Minister has down with reference to Section 40. As Senator Ryan said, if premises are let by parole there is nothing to prevent subletting but if this clause is put in such subletting would be prevented. As I said before, and I think I was misquoted in the reports, a seven-year agreement from 1826 to 1833 (the date was misquoted as 100 years later) allows subletting or assignment. If this is carried it will upset all the law.
I do not think I can add anything to what the last three speakers said. I do not think there is any need for me to say anything further. For the reasons they gave the amendment is not acceptable.
There were one or two statements made by Senator Ryan and indeed by the three legal Senators that have surprised me. I agree that the first part of my amendment may not be necessary but the second is the important part. It has been stated correctly that in the absence of an agreement a tenant has the right to sublet. That is the position. Everyone knows that. But that is the reason why I submit the amendment. If landlords who are often in poorer circumstances than their tenants knew the law, knew their rights, there would be no parole agreement. If we are so concerned for the tenants we should be equally concerned for the owners who are very often in worse circumstances than the tenants. A bigger issue is that this position lends itself to great social abuses because tenants can sublet without authority. A great deal of the abuses that arise from the subletting of flats can be avoided, I suggest, by the adoption of this amendment. The landlords of these premises very often get practically nothing out of them. To show how legal opinion may differ, here is a letter I got to-day from a person who has more knowledge of the position than anyone present in this House. It reads:—
"Your suggestion to define the word ‘lawfully', as used in relation to subletting would, especially in the case of verbal agreements, be of great assistance in preventing a tenant having full power to create a lot of sub-lettings and so deprive the landlord of the rights of recovering his property when a tenant is leaving."
Surely that is a fact we all know. I quoted a case recently in which a landlord could not obtain full possession of his premises because a tiny portion of the premises was occupied by a sub-tenant. The tenant of the greater portion of the premises wanted to buy and the landlord wanted to sell, but, because one small corner was sublet, the sale fell through. If it would add to the law, I should not dream of putting forward this amendment. It is merely intended to give the benefit of the law to people who do not know that it is the law. I am putting the onus on the tenant as well as the landlord to give notice regarding subletting. That would do away with a great deal of the social injustice with which we are all familiar and it would do no serious harm to anybody because, if anybody puts the owner wise to what is happening, he can insist on a written agreement and stop it in that way. So that no injustice may be done to persons holding tenancies at present, or on the operative date, I suggest that my amendment apply only from now onwards. With the spread of education, we may hope that the need for this provision will become less and less as time goes on. I am backed up in my attitude by what I consider to be very sound legal opinion. I bow to the great knowledge possessed by Senator Kingsmill Moore, Senator Ryan and Senator O'Dea, but the opinion I have quoted is from a man who can be placed on an equality with any of these gentlemen in his knowledge of the actual working of the rent restrictions law.
Amendment, by leave, withdrawn.
I move amendment No. 5:—
In page 6, Section 3, sub-section (2), lines 17 to 20, to delete paragraph (c).
This amendment deals with flats which were included in the exclusion section. I am removing the exclusion by this amendment. Other amendments will deal with the proposals I have to make.
Amendment agreed to.
I move amendment No. 6:—
In page 6, Section 3, sub-section (2), to delete line 30, and insert in lieu thereof the words "(otherwise than for breach of a term of the tenancy) must".
Perhaps we could deal with amendments Nos. 6 and 7 at the same time. Therefore, I move amendment No. 7:—
In page 6, Section 3, sub-section (2), paragraph (f), to delete lines 30 and 31, and insert in lieu thereof the following:—
"must be a notice of not less than three months".
Both of these amendments have substantially the same object. My amendment goes a little bit further than the Government amendment. Yearly tenancies of business premises were not within the protection of the Bill, as originally drafted. That followed the provisions of the 1923 Act, the idea being that yearly tenancies of business premises were adequately protected by the Town Tenants Act, 1906, in the first place, and by the Landlord and Tenant Act, 1931, in the second place. As was remarked and explained on the Committee Stage, owing to the production in the Dáil of a freak agreement, in which a yearly tenancy was capable of being determined by only one week's notice, an amendment was put in by the Dáil seeking to prevent the use of an agreement of that nature, which was not only a freak agreement but one which would, obviously, be grossly unfair to any tenant who would be foolish enough to sign it. As this House substantially agreed on Committee Stage, the amendment introduced in the Dáil, which was not very fully considered, went too far and produced results which were neither anticipated nor, I think, intended.
Accordingly, the Minister intimated then that he would consider the matter with a view to securing time for the tenant to look about himself and, at the same time, to keep the yearly premises out of the provisions of the Act. The effect of the Minister's amendment is that yearly premises— by that I mean premises let to a tenant from year to year or as a yearly tenancy—where they are determinable by six months' notice on either side, and where they are let for business purposes, are to be outside the scope of the Bill. My amendment is the same as that of the Minister, with this difference—that where yearly premises are let with a clause that they be determinable on three months' notice, given by either side, they are outside the Bill. The question whether a draftsman inserts, in a written agreement for a yearly tenancy, a provision that it is to be determinable on six months' notice by either side or on three months' notice by either side, is, more or less, a question of taste. On the whole, I think that I have seen just as many agreements for yearly tenancies with the provision that they be determinable by three months' notice on either side, as I have seen agreements providing that they are to be determinable by six months' notice on either side. The question as to which provision goes in may well depend on whether the draftsman has had the gizzard or the liver wing for his dinner. It seems to be very unfair that if a draftsman happens to have made provision that a tenancy from year to year be determinable by six months' notice on either side, that tenancy should be outside the Act, whereas, if he has provided that it be determinable by three months' notice on either side, it will be inside the Act. You are then deciding the question whether or not the tenant shall have protection by the whims or habits of the individual draftsman or by the precedent he happens to have before him, if he is using a precedent. Therefore, I suggest that, whereas it is desirable to take out short freak notices for a month or a week, which no responsible draftsman would dream of inserting in a provision for a yearly tenancy, you should not make any distinction between the two periods for determination which are quite well recognised and will be introduced by responsible draftsman. Otherwise, you are providing an absolutely chance rule to decide whether a tenant shall be inside or outside the protection of the Act.
As Senator Kingsmill Moore has said, there is not very much difference, so far as the practical working of these amendments is concerned, between the Minister's amendment and his own. Personally, I regret very much that the provision in the Bill, as introduced in the Dáil, was not allowed to remain as it was. When this Bill was introduced in the Dáil, sub-section (2) (f) provided that the Act should not apply to business premises let from year to year or any term of years. That was the same wording as in the Emergency Powers Order (No. 313) of 1944. It was provided that the Order should not apply to business premises let from year to year or for any term of years.
It appears that during the course of the debates in the Dáil, an agreement, which has been well described by Senator Kingsmill Moore as a freak agreement, was produced, under which it was provided that a yearly tenancy, a tenancy created as a yearly tenancy, should be determined by one week's notice to quit. The general idea, prior to the introduction of this Bill in the Dáil, was that houses which were protected by the Rent Restrictions Acts were not protected by the Landlord and Tenant Act, and houses which were protected by the Landlord and Tenant Act, 1931, were not protected by the Rent Restrictions Acts.
Business premises let under tenancies less than tenancies for a year were protected by the Rent Restrictions Acts, and premises let from year to year were protected by the Landlord and Tenant Act of 1931. So, as far as practical working was concerned, no difficulty arose. By reason of the freak agreement in the Dáil and the introduction of this change, there will be overlapping between the two Acts. Now, Senator Kingsmill Moore's amendment is designed to restrict that overlapping as much as possible. It seems to have been forgotten in the Dáil debates that these premises held under yearly tenancies, subject to a week's notice to quit, are in fact protected by the 1931 Act, provided, of course, that business had been carried on for three years or more. Under the 1931 Act, even if a week's notice were given to terminate the tenancy, the tenant would be entitled, from one week from the service of the notice to quit, to serve a notice claiming relief under the 1931 Act, and he would have obtained it.
I suppose we cannot go back to the provision as it was in the Dáil, and, therefore, we must make the best of the position. I think a great deal of difficulty will arise by reason of the overlapping which has been caused by the provision now in the Bill, and I would submit, at all events, in order to minimise that overlapping, that Senator Kingsmill Moore's amendment should be accepted by the Minister. It will achieve the object which the amendment introduced in the Dáil was intended to achieve by countering this freak agreement produced in the Dáil, which, in my opinion, resulted in a freak amendment to this Bill.
One thing has been omitted from the statements to which we have listened in connection with this amendment. No attention has been directed to the provisions as they stand. One would imagine it is a question of whether we are referring to tenancies determined by a three or six months' notice. That is not the position. We have before us in paragraph (f) of sub-section (2) of Section 3, protection for a very considerable number of tenants, not merely protection against eviction, but protection in respect of the rentals payable for these tenancies. I should say first that the form of the paragraph makes it exclusive. It excludes from the provisions of this Bill business premises which are let for a term of years or business premises let from year to year under a tenancy, notice to determine which must expire at the end of some year of the tenancy, and there must be a six months' notice. These are the two provisions of the paragraph of the Bill as it stands before us, the notice to terminate must be for at least six months and it must determine at the end of a year.
If a tenancy runs from June 1 to May 31 of the following year, there must be six months' notice, as the Bill stands, to terminate the tenancy, and it must expire on the 31st May. What the Minister is doing with this amendment is to ignore the provision that the notice must expire at the end of some particular year. So long as there is six months' notice it does not matter when it expires if we accept the Minister's amendment. If we accept the amendment of Senator Kingsmill Moore, it does not matter when the notice expires. So long as there is a three months' notice, the tenancies of business premises are outside the Bill altogether.
I would ask the House to reflect carefully before they accept the amendment of Senator Kingsmill Moore, and to reflect also before they accept the Minister's amendment. It is not correct to say, with all due respect to the members of the legal profession, that business premises which are excluded from this Bill are covered by the Landlord and Tenant Act. To come within the Landlord and Tenant Act, premises must be in a town. This Bill is not confined to premises in towns.
In urban districts.
With all respect, Sir, it is common ground that this Bill does embrace business premises outside an area to which the Landlord and Tenant Act would apply.
It may be that, in the Dáil, the freak agreement was produced, but have we any guarantee that there are not hundreds of freak agreements? The gentleman who drafted the agreement providing for a week's notice to terminate a yearly tenancy must have had a model before him, or, if not, he was creating one for the future. We have made no inquiries, and nobody speaking in this debate has suggested that an inquiry has been made to ascertain whether there are not other agreements of a similar kind to the one introduced in the Dáil. The fact that there was such an agreement produced is evidence that those who are concerned with protecting the interests of the occupiers of business premises were conscious of the malpractice of which the agreement was evidence. I would strongly urge on the Minister that he should not disturb the provisions in the Bill as they stand in relation to that paragraph. A case was made to him to strengthen the protection afforded in the Bill. It was discussed in the Dáil, and, as a result of the representations made to him, the Minister introduced this proposal. It did not come merely from some members sitting on the back benches. It came from the Minister himself. It is his amendment, and was inserted in the Dáil at his request, after due consideration.
I would like to hear a strong case made, apart from the pressure applied in this House, for the change of mind expressed in the amendment which the Minister has submitted to-day. It is not good enough to be told that, as a result of representations made to him in the Dáil, the Minister altered the Bill which he had introduced, and inserted this paragraph with which we are now concerned — paragraph (f) in sub-section (2) of Section 3—and then come along and say that something else has happened, and that he is going to mend his hand again. That is not convincing to me, and I hope the House will make it clear that it is not prepared to accept either of the two amendments.
So far as the Minister's amendment is concerned, there are certain words in it which are not in the amendment moved by Senator Kingsmill Moore. These words which are within brackets "(otherwise than for breach of a term of the tenancy)" are, in my opinion, absolutely necessary. My reason for saying so is that, very often, agreements provide that where a tenant has failed to pay his rent, or has broken a specific term of the agreement itself, then a shorter notice can determine the tenancy than would be the case if the tenant were fulfilling his due obligations. So far as that is concerned, I do not think any member of the House will object to a provision to ensure that a tenant cannot avail, in an unfair way, of some overt act that he himself has committed in breach of the agreement that he has made. I think, therefore—though I am inclined to the view that Senator Kingsmill Moore has mentioned—that it is perhaps a little bit unfair that a mere question of drafting should operate as to whether the premises came within or without the Act. I do think that it would be absolutely essential to have the words in brackets in the Minister's amendment included in Senator Kingsmill Moore's amendment if it were to be accepted.
I would agree to that.
The Senator, I see, appreciates the point I have made. As Senator Duffy has pointed out, this amendment was introduced by the Minister in the Dáil to meet the case of a freak agreement. It was introduced in an ad hoc manner to meet that particular case, not because the Minister felt that the agreement was widespread, but that there was the possibility that it might become widespread after public notice had been taken of it. If there was the slightest chance that the new amendment would not equally kill that type of freak agreement, I would not, in any circumstances, support it; but it appears clear to me that all that is being done in these new amendments is to ensure that a freak agreement cannot operate to bring premises outside the control of the Bill, and that at the same time control itself cannot operate in a freakish manner. If the words “expire at the end of the tenancy” were left in it would mean in effect that the only tenancies which were excluded from the control provided by this Bill would be those in which, in certain circumstances, it might be necessary to have notice of 18 months, because if the end of a tenancy was, say, the 25th February, and that on the 26th February it was desired to give notice, that notice could not then operate for one and a half years. It was to exclude that unfair discrimination in control that the Minister introduced this amendment.
Frankly, I think the Minister should accept the period of three months, because it is purely a matter of fortuitous drafting whether three or six months is inserted in nine-tenths of the agreements that are so drawn. I would press the Minister very strongly to retain the words, "otherwise than for a breach of a term of the tenancy." If the Minister were to give me a choice as to which I preferred, I would certainly prefer his amendment, with the period of six months and with the proviso I have just quoted in it, rather than Senator Kingsmill Moore's amendment of three months without that proviso.
On a point of order, I want to know whether it is premissible to suggest a new amendment on this stage of the Bill. Three weeks are allowed for the tabling of amendments, and I want to know if it is permissible to introduce a new amendment at this stage.
Not surely for the Recommittal Stage.
I want to have a ruling from the Chair as to whether it is permissible to introduce a new amendment on this, the Report Stage of the Bill?
This is the Recommittal Stage.
Will there be a Report Stage following this?
Yes.
Senator Sweetman has suggested a new amendment, and I want to know whether that is permissible.
I understand that the Bill has been recommitted and that we can discuss these amendments in Committee. Therefore, if it should be the view of the House that three months' notice should be provided for, and that the words "otherwise than for breach of a term of the tenancy" should be inserted in the Bill, surely both of these desirable provisions can be embodied in the Bill by means of an amendment when the Bill comes back to the House on Report. I am entirely in agreement with Senator Sweetman that the only reason why my amendment does not include the words "otherwise than for breach of a term of the tenancy" is that they would be merely repetition of what went on in the Committee Stage and that it was prepared before I got the Minister's amendment. If we discuss these two matters in Committee, it will surely be open to the Minister to circulate for the Report Stage an amendment embodying the two desirable portions of each of these amendments.
There is a further point that I want to make. I have before me to-day's Order Paper, and the first item on the Order Paper is the Rent Restrictions Bill, Report Stage. That means that there will be no further Report Stage, and that this is the end of the Bill, so far as amendments are concerned. I want a ruling on the matter. I am submitting that, according to the Order Paper before me, this is the Report Stage of the Bill, and that whatever is done now by the House cannot be undone. Accordingly, I am asking if it is permissible to introduce at this stage a new amendment which does not appear on the Order Paper.
Unless the House agrees to defer the Report Stage to a further date, an amendment can be introduced to-day, but I would point out to the Senator that this is not the Report Stage: that the Bill has been recommitted in respect of certain amendments.
The Cathaoirleach can take me as not agreeing to that procedure. I am not agreeing to the introduction of a new amendment now.
On a point of order. Might I point out that Senator Duffy is somewhat late? The House agreed to recommit the Bill to-day, and once it has agreed to recommit the Bill, it must come on to Report Stage later. If we have agreed to recommit the Bill, we are not dealing with the Report Stage now.
Yes, this is not the Report Stage.
On a point of order. May I take it that when we have completed all the amendments on the Order Paper we will have completed the Committee Stage of the Bill, and that then we come to the Report Stage, on which stage further amendments can be introduced?
Yes, that is so.
Because I should like to introduce on that Report Stage an amendment in respect to the matter with which these two amendments are concerned. I should like, if I am in order, to move an amendment on the Report Stage, that Clause 3 (2) (f) should be the same as it was when this Bill was introduced in the Dáil, namely, that this Bill does not apply to business premises let for a term of years or from year to year. I should like to know whether I would be in order in moving that amendment on the Report Stage and at the conclusion of the Committee Stage with which we are now dealing.
I want to submit that this is the Report Stage of the Bill, and that therefore there can be no other Report Stage.
The Senator was not here in time to-day.
Oh, yes, he was.
There will have to be a Report Stage when the present proceedings are concluded; in other words, when these amendments which have been recommitted have been considered.
I want to know what Standing Order that ruling comes under.
The Senator should understand that we are now concerned with the recommittal of amendments.
And I submit that the Bill was recommitted for the purpose of certain amendments only.
That is so, Senator.
Therefore, we cannot go line by line through the whole Bill, and the recommittal is only in respect of these amendments.
Agreed.
Well, I submit, therefore, that this is the Report Stage of the Bill, and that the question of discussing a matter at some length, or of speaking more than once, only comes in in respect of the amendments which have been recommitted.
I suggest that if this House clearly comes to a conclusion that a combination of two amendments is better than either of the amendments, it should be possible to do so, but the suggestion here seems to be that this House is powerless to do that.
My suggestion is that this House has no power to do anything outside its own Standing Orders.
Oh, no. That is an entirely erroneous idea. The House has absolute power to suspend its own Standing Orders and carry out its business in accordance with them.
Yes, on a motion.
Yes, but at the moment we are dealing with amendments which have been sent to Committee for consideration, and we are now dealing with the amendments under that procedure.
I want a ruling on one point: whether it is permissible to move another verbal amendment on this subject at this stage.
On a point of order. Arising out of that, surely it is contrary to all the practice of any legislative assembly to ask, in the middle of any debate, for a hypothetical ruling. Surely, if the Senator wants a ruling on that point, he would be correct in asking for a ruling, if and when such an amendment has been moved or is attempted to be moved. At the moment we are only discussing whether it would be desirable to move it or not, and I suggest that we are absolutely entitled to do so. If and when the amendment is put down, that would be the time to make the ruling for which the Senator is asking.
With all respect, the ruling I am asking for is not in connection with a hypothetical question. The discussion was proceeding on the basis that a new amendment would be submitted embracing certain features of amendments Nos. 6 and 7 which are before us. It is not a hypothetical question. The discussion has been proceeding on the basis that it is possible to move a new amendment which is not now on the Order Paper.
The Senator is entitled to put forward an amendment for consideration on the Report Stage.
Then I take it that the procedure is that there will be a Report Stage following these proceedings now?
Yes, there will.
And there will be ample time given?
They can only cover the sections before us now.
We are dealing with amendments now.
Either we have a Report Stage or we have not.
The point is that the Chair has already ruled that we are now in Committee and that there will be a Report Stage later.
Yes, I have so ruled.
I suggest that Senator Duffy should accept that.
That is not what I asked. I asked whether it is permissible at this stage to move a new amendment. That is the only question that I want decided now.
Not without notice, but it is permissible to introduce a further amendment on the Report Stage. The Senator says that we are dealing with the Report Stage now, but we are not; we are dealing with the recommittal in respect of certain amendments, and when the Report Stage is reached, if notice is given, the Senator can bring forward amendments and have them considered by the House on that stage.
Is not Senator Duffy's point that this Bill had a long Committee Stage: that there are 37 amendments on Report, and that the House, for its own convenience, is considering certain amendments in Committee?
Exactly.
Senator Duffy's point is that we have reached a stage at which we cannot have any more amendments.
That is the point.
If that is so, would it not be hampering the House, and would it not be contrary to procedure, if the House decides that it wants to have a bit of amendment No. 6 and a bit of amendment No. 7? I suggest that the Standing Orders should be so interpreted as to enable us to do our business easily and not to hamper our business. Accordingly, I think it should be possible to deal with this matter either now or on the Report Stage.
Personally, I am of opinion that it would be better to have it on the Report Stage.
I take it that we are in order now in discussing the merits of the amendments so that the House could consider whether it would be desirable on the Report Stage to introduce an amendment embodying the best points of the two amendments.
I do not know whether this agreement, which was shown to me, was a freak agreement or not. I was given to understand that there were several types of these agreements purporting to be for a yearly tenancy whereas, in fact, the people concerned had only a weekly tenancy. I was shown one of these agreements, but whether it was a freak agreement or not I cannot say. However, Senator P. J. O'Reilly has spoken of ignorant or innocent landlords, but there may be also ignorant or innocent tenants who may think that because the agreement was there they were all right. I am relying now on my memory—it seems to me to be in the dim past age that this Bill first came into the Dáil—but I seem to remember some Deputy telling me that he knew of several of these cases. I have asked my advisers to look up the debate but they have not been able to locate it so far. Definitely we did get one agreement which was supposed to be a yearly tenancy and it was subject to one week's notice. It looked as if it was an attempt to evade the Act. I think we can go a little bit too far. I admit I did not see the full significance of this at the time. I frankly admit I am not an expert on this complicated matter but when my attention was drawn to the possibility of 18 months' notice I said it was unreasonable. I think six months' notice is reasonable. Of course, if there is any breach of the terms of tenancy six months' notice will not hold. I think my amendment is better than Senator Kingsmill Moore's. If it is only as good why should I go to the trouble of putting in the amendment in the Dáil? I do think six months is reasonable. Three months is rather short. I understand a number of tenancies are for six months.
Most, I think.
I am not quite sure about that but, having regard to all the circumstances, I think my amendment is a better one than Senator Kingsmill Moore's, and I ask the House to agree to it.
I go with the Minister in saying that six months is more usual, but I want to make it perfectly clear that both six months and three months are quite usual periods for the determination of a tenancy. There is nothing out of the way or surprising to find either of them in a tenancy agreement. I want to emphasise that it is utterly unfair to leave the decision of what may or not constitute the effect of a tenancy to a draftsman and the particular mood he happens to be in. It seems to be an utterly insubstantial and frivolous method of determining who is going to have the protection and who is not going to have the protection of the Act by leaving it dependent on the whim of the particular gentleman by whom the agreement is drafted. I press this on the Minister. It is not a question of choosing between two amendments, one of which is as good as, if not a little better than, the other. I admit that the first part of the Minister's amendment is absolutely necessary. I would have included that if I had sent in my amendment after considering the Minister's. But I suggest that mine is also necessary. I agree with Senator Ryan that probably the original provisions of the Bill were the best, and that the Dáil was stampeded into altering them as the result of a freak agreement, but if there are freak agreements, I think it is necessary to introduce an amendment to prevent tenancies being affected by such freak agreements. I urge upon the Minister not to leave it to the whim of the draftsman to decide who comes within the Act and who does not.
I suggest to both Senator Kingsmill Moore and the Minister that they should withdraw their amendments. I intend to move an amendment on the Report Stage which will have the effect of reverting to the position as it was when the Bill was originally introduced in the Dáil.
I will not accept that.
Well, I think that is against the Minister's better judgment.
No, it is not.
Well, no sound reason has been given for departing from what has been set out in Emergency Powers Order No. 313, and what has been well described as a freak amendment. Whether a house is or is not controlled must depend on the form of the agreement under which it is held. If it is held under a yearly tenancy than it becomes a tenancy from year to year. A great number of yearly tenancies are agreed by parole. They are not in writing. They must be terminated by six months' notice to quite. There are other tenancies from year to year agreed in writing. The result will be that some tenancies from year to year will be controlled by the Act and other tenancies will not. When this Bill was introduced, the position was that all tenancies of business premises from year to year were outside its scope. Tenancies from year to year were protected by the Landlord and Tenant Act, provided business had been carried on for three years or there had been a seven-year occupation. No case has been made for departing from that position. In endeavouring to meet the case of the freak agreement—the termination of a yearly tenancy by a week's notice—we are taking a leap in the dark. There will be considerable difficulty in the working out of this provision because you may have two business premises side by side in the same street held under tenancies from year to year one of which will be within the Act and the other outside the Act simply because they may be held under agreements providing for different periods of notice for determination of the tenancies. I suggest to the Minister and to Senator Kingsmill Moore that they should withdraw their respective amendments.
It seems to me that this discussion is becoming very unreal. I have already recalled the process through which this Part of the Bill went in the Dáil and here. The majority of the proposals made in this House seem to be asking the Minister to retreat from one position after another. The Minister has retreated in many serious respects. I want to remind the House that, when we are finished with this Bill, the Minister will have to go back to Dáil Eireann, recommend these amendments to the other House and secure its approval of them.
I wonder if that will be a pleasant task, seeing that the Minister himself is responsible for some of those amendments having been brought in on Report Stage. They already have been discussed in principle on Committee Stage. I do not think that Senators who are asking that to be done are realists, having regard to the fact that this is the last week we have to make any alteration in the Bill. If there are to be further retreats in respect of the Bill, then I shall do anything in my power to prevent the House disposing of the Bill within the time allowed.
The time can be extended indefinitely.
I do not want to go into that question. I am reminding the House that it is not the last authority in regard to these amendments. I sincerely hope that, when the Bill is brought back to Dáil Eireann, that House will stand over the decision it made and not yield to proposals of this kind.
I hope I am a person who keeps an open mind. I do not claim that I have all the knowledge available on this question, nor do I claim that the Dáil has all such knowledge. This House must have some use. It has gone into this Bill in great detail. The proceedings have been wearisome but they have been instructive. To me, at all events, that has been the case. Even since I sat down previously, I have come to the conclusion that there is a great deal in what Senator Kingsmill Moore has said. I do not want to have one class of person who is under a yearly agreement included and another person of the same type excluded. That would seem to be ridiculous. I am inclined to retreat again but I should rather retreat and keep on retreating than have a closed mind.
It is the sign of a courageous man.
We are trying to make this Bill as water-tight and as satisfactory as possible. If something useful emerges in the debates here, I welcome it, whether it means a retreat or not. I have been told by other people that I have retreated. I do not mind that if, by having done so, I have improved this Bill. I do not know how long this Bill will take here and I do not care. Perhaps we could amend it in this regard by substituting three months for six months in my amendment. I would not agree with Senator Ryan to leave the position as it is under the present law. There are such agreements and people's ignorance might be taken advantage of. I have been impressed by the case made and I should be prepared at some stage to substitute "three months" for "six months."
If we both withdraw our amendments, the Minister can substitute his proposal.
My proposal would be to substitute "three" for "six" in my amendment.
I am glad that the Minister has decided to consider the amendment suggested by Senator Kingsmill Moore and the advice tendered by Senator Ryan. I am sure the lay members of the House are puzzled as to the difference between a yearly tenancy terminable by six months' notice and one terminable by three months' or one month's notice. Personally, I am not quite clear as to the difference. Under the 1931 Act, if the tenant of a business premises has been in possession for three years, in the case of a yearly tenancy, or for seven years in the case of other tenancies, then he automatically comes under the provisions of the Landlord and Tenant Act and it does not matter what the term of the notice is. In other words, the vast majority of people in the occupation of business premises are protected, irrespective of the length of notice. Even with this reduction from six months to three months, you will have a large number of anomalies. I am aware of a number of cases where these tenancies are subject to a month's notice and, so far as I know, the people concerned are protected by the Landlord and Tenant Act. The Minister will not, therefore, do any serious harm by reducing the term. I am glad he has accepted the advice given and agreed to consider this matter further.
The question of protection introduced into this discussion seems to ignore the fact that this is a rent restrictions Bill. It is not a question of preventing a person from being dispossessed, as is the case under the Landlord and Tenant Act. In the case of small premises, this Bill introduced a new method of having cases determined without much cost. These things are entirely unattended to in the Landlord and Tenant Act.
Senator Kingsmill Moore has stated that it depends on the wording of the agreement. There is a lot to be said for that view, and at present the law says that every agreement shall be drawn by the landlord's solicitor, and shall be paid for by the tenant's solicitor. That is the position.
Paid for by the tenant's solicitor, or by the tenant?
By the tenant, of course, but sometimes, unfortunately, if the tenant has a solicitor, he pays and waits for a long time before he gets it from the tenant, so that my remark is not so wrong after all. There is a danger that the tenant may not like to pay two sets of costs, and may not get a solicitor at all, and may not go into the wording of the agreement as carefully as he might do, and what must be borne in mind is that this clause includes yearly tenancies. There has been a great deal of talk about freak agreements, but a yearly agreement could be terminated by a week's notice.
I do not think one agreement would have influenced the Dáil very considerably, but what, perhaps, was in their minds was this: that an agreement may be drawn up which could be called a yearly agreement for the purpose of coming within this provision, or for the purpose of excluding the premises from this Bill, and it may contain a provision that a tenancy could be terminated on any gale day by a three-months' notice to quite. If there was such an agreement, although it may be called a yearly agreement, it would be really only a three-months' agreement, so that it would have the double purpose of giving the landlord the advantage and, at the same time, preventing the tenant from claiming the benefit of this Bill.
Now, there is another difficulty, and it is this—the landlord could go further. He could take very good care that he would terminate that agreement before the expiration of three years, and thereby prevent the tenant from coming under the Landlord and Tenant Act, 1931. He could exclude him from this Act by calling it a yearly tenancy when, in fact, it would be a three-months' tenancy, and he could also exclude him from the Landlord and Tenant Act of 1931, and terminate the agreement before three years.
Is the Senator talking about new tenancies to be created after the passing of this Act?
Yes, or it would apply to agreements made during the last year or two years. They would come into effect after the passing of this Act but they would not enable the tenant to get the three-years' period any time after this Bill is passed. Those things have to be borne in mind in the wording of those agreements. I would ask the Minister to keep them in mind in any amendment he would accept, and I would be against Senator Ryan's suggestion of leaving it as it was in the Dáil.
I suggest that there are many cases in Dublin, particularly in the poorer districts, in which a certain type of landlord owns property, property let to small shopkeepers. The agreement is usually made for three years, and I am informed that in very many cases since 1931 the landlord has given notice in order to terminate the agreement before the three years, so that in fact a large number of these hucksters' shops around Dublin are not protected by the Act because of the subterfuges adopted by the type of landlord concerned to keep them out of the Act. Under this Bill, it is proposed they shall not be protected for the purpose of rent restrictions.
An Leas-Chathaoirleach
We are taking amendment No. 6.
I am suggesting I withdraw my amendment when Senator Kingsmill Moore withdraws his, and I will bring up a new amendment on the Report Stage including part of mine and part of his.
Amendment No. 6, by leave, withdrawn.
An Leas-Chathaoirleach
No. 7 is also withdrawn.
Have we any assurance of that?
An Leas-Chathaoirleach
Senator Kingsmill Moore so intended, before he left the House. He said he was willing to withdraw his amendment if the Minister withdrew his.
Amendment No. 7, by leave, withdrawn.
I formally move amendment No. 8: —
In page 8, Section 9, to delete sub-sections (2) and (3) and insert in lieu thereof the following sub-sections:—
(2) The basic rent of premises to which this section applies shall be determined by the court and shall be a rent of such amount as the court considers reasonable, under any given contract of tenancy not being for more than a term of five years, having regard to the basic rents of other controlled premises and, in case evidence is forthcoming of both the following facts,—
(i) that the premises the basic rent whereof is to be determined were on the 3rd day of August, 1914, held by an occupying tenant thereof under a contract of tenancy not being for more than a term of five years, or that they were not so held but were last so held on a date not being more than three years before the 3rd day of August, 1914, and
(ii) the rent at which they were so held,
then, having regard also to the amount of the said rent.
(3) for the purpose of the determination by the court of the basic rent under this section the tenant shall be deemed to be responsible for the rates.
I move two amendments to amendment No. 8:—
In the proposed new sub-section (2), after the word "controlled" to insert the words, figures and brackets "(1923 Act)".
In the proposed new sub-section (2), paragraph (i), after the word "before" to insert "or three years after".
I deal first with the first amendment, which is an amendment to sub-section (2) as proposed by the Minister. The proposal here in the Minister's amendment regarding the first part of sub-section (2) is almost identical with the provisions in the Bill as they stand. Whether it is an oversight I do not know, but the words and figures which I have mentioned in this amendment "(1923 Act)" are, at the moment, in the Bill and were inserted by the Minister on amendment, the purpose being that when the court comes to fix a rent under Section 9 of the Bill, the rents fixed or applicable to similar houses should be taken into consideration.
Let us assume, for instance, that there is a house controlled under Section 8 in a particular street. The rent is £50 a year fixed by the court or by arbitration. Somebody in the same street goes to the court to have his rent fixed. No question arises whether the £50 rent was a reasonable rent or not. The property changes hands and the new landlord proposes to increase the rent very substantially. When the tenant goes into court, the court is required by the Bill, as it now stands, to have regard to rents fixed in respect of similar houses which are controlled under the 1923 Act. All this provision relates entirely to houses erected before April 2nd, 1919, the poor law valuation of which in the case of Dublin does not exceed £30, and outside Dublin £25.
When the matter was raised in the Dáil as to the standard by which the court would determine rents under Section 9, the Minister agreed to insert this provision that the standard was to be similar to 1923 controlled houses. In redrafting this proposal, the words "1923 Act" are omitted. If they are omitted by accident, very well.
I am obliged to the Senator for drawing my attention to it. It was an accident and I accept the amendment. I am much obliged to the Senator.
First amendment to amendment No. 8, agreed to.
The second amendment which I have moved to amendment No. 8 is different. You will observe in paragraph 1, of sub-section (2), that if there is evidence forthcoming on certain matters the court shall have regard to that evidence.
The evidence to which reference is made is to the effect that "the premises the basic rent whereof is to be determined were on the 3rd day of August, 1914, held by an occupying tenant", or "that they were not so held but were last so held on a date not being more than three years before the third day of August 1914". So that the court will consider what was the rent payable on the 3rd of August, 1914, if there is evidence available as to what the rent was. In certain cases that evidence will not be available now after such a lapse of years. In other cases, the evidence may be available. There may, in fact, be evidence that the house was not occupied at all on the 3rd of August, 1914.
The Minister is providing that, if it can be shown that it was occupied at any time between the 3rd August, 1911, and the 3rd August, 1914, and that the rent at which it was let is known, then that shall be the standard. I am trying to go further and deal with the case where the house was unoccupied between the 3rd August, 1911, and the 3rd August, 1914, and to take into consideration what the rent was, if it were occupied in the following three years, that is between the 3rd August, 1914, and the 3rd August, 1917. Actually, the second consideration might not be as favourable to the tenant. I think that, as a rule, it will not be as favourable to the tenant as it would be if the rent on the 3rd August, 1914, were known. But, taking the long view, I think it would probably be fairer to the present tenant to have regard to the rent which obtained between August, 1914, and August, 1917, than to leave him in mid-air, because if the matter is left unsettled then there will be no criterion by which the court can fix the rent of the house when asked to do so. I would strongly urge on the Minister that he should regard this as a helpful suggestion to the court: to find some measuring ground for the purpose of determining what the rent is in the case of a house not occupied on the 3rd August, 1914, or during the previous three years, or, alternatively, if it were occupied, and the rent at which it was let is not known, whereas, on the other hand, the rent may be known in respect of the following three years.
I cannot accept the Senator's amendment. The object of my amendment is to provide for cases where the 1914 rent is known, or in respect of which there is evidence of an agreement between a landlord and tenant. The object of the amendment is to ensure that the court will have regard to that. The first part of my amendment is taken from the 1923 Act. I believe there are a number of cases involved, but as they have not been decided by the court, they cannot be regarded as coming under Section 8 of the Bill. They would be Section 9 cases. In the future there might possibly be litigation about them when evidence was available and the rent is actually known. I am proposing in my amendment that, if there is satisfactory evidence available as to what the rent was in 1914, the court shall have regard to that. The Senator spoke about some cases where the rent is not known. I am speaking of cases where the rent is known, or where there is an agreement between the landlord and tenant, or evidence as to the rent that was paid for the three-year period before 1914. That portion of my amendment—Clause (i)—is taken from the 1923 Act.
Where that evidence is available and where there has been an agreement between the parties, I think the court should be able to fix a fair rent on the known facts. I think that my amendment is a satisfactory one. As I have said, Senator Duffy's amendment is not acceptable. It would widen the position too much. This matter was discussed very fully on the Committee Stage of the Bill in the Dáil, and I think that my amendment meets the situation.
I do not think that Senator Duffy wishes to alter the wording of the Minister's amendment. He would be satisfied if a figure were taken at any time in the three years previous to the 3rd August, 1914. He suggests, however, that if the premises were not let during those three years, but were let within a period of three years after the 4th August, 1914, that the rent so charged during that period ought to be taken as the rent. As well as my memory serves me, I think there is something in the 1923 Act which bears out that suggestion, something to the effect that where premises were not let in 1914, or before that, the first letting after that was to be taken as the standard rent. Perhaps the Minister would consider that between this and the Report Stage.
I do not think the Minister is quarrelling with what I am proposing, but thinks that what I have in mind is something that is not feasible. I would draw attention to this fact, that the words taken by the Minister from the 1923 Act did not originate then, but rather in an Act that was passed in 1915; an Act which, obviously, could not deal with any period except one prior to 1914. If some of us were able to influence those who drafted the 1923 Act, we might have tried to make some change in it, but what happened in 1923 was this, that the idea that was first accepted in 1915 was carried over. In effect, what it says is this: find out, if you can, what the rent was on the 3rd August, 1914, or, if the premises were not let on that date find out at what rent they were let at any time during the previous three years. That was a sensible enough thing in 1915, but it is not a sensible thing in 1946, and I am trying to make it possible for the court to take its guidance from any information that is available in respect of, not merely a period of three years, but of six years.
That is the simple issue. If a Section 9 case comes to the court—it is not likely that there will be very many such cases now, but should such a case come to the court—I am agreeing with the Minister that the court should have regard to the rent at which the premises were let at 3rd August, 1914, if they were let on that date. I further agree with the Minister that if it is impossible to ascertain the rent at which the house was let on 3rd August, 1914, you ought to have a look at the rent at which it was let at any period during the previous three years. I want to go a further step, however, and to say to the Minister now that if we cannot get any information as to the rent during these three years, from 1911 to 1914, we should try to get information about the next three years, 1914 to 1917. I think that that would make it easier for the court to determine what is a reasonable rent for that premises now, and it would give the judge an opportunity of looking, first, for the particular date mentioned, the 3rd August, 1914; failing that, looking for information in respect of the previous three years; and, failing that, looking for information in respect of the following three years. I do not think the Minister is quarrelling with the idea, and I would urge upon him strongly that the suggestion in this amendment is an improvement. It makes it easier for the court to determine a matter that is not easy to determine now after such a long period of years—a period of 30 years. I think that on reflection the Minister would probably agree that my amendment would be of some assistance in that determination.
This was only intended to meet a limited class of cases, where there was definite agreement as to what the rent was. The other cases referred to by Senator Duffy would have to be dealt with under Section 9. What I asked was to remove these people from the position of doubt in which they were as to the possibility of having their cases reopened even where there was a satisfactory agreement between the occupying tenant and the landlord on the basis of the known rent in 1914 and before it. The other cases can be dealt with under Section 9, but what I want to avoid is the reopening of all those cases, where there has been agreement.
I suggest that no case would be reopened under this, and that would come under Section 8.
Yes, I am well aware of that, where the court has decided that it would be a Section 8 case, but I am speaking of cases where for all those years there has been agreement between the parties concerned, and I want that position stabilised.
But it is stabilised. This section will only be invoked where one of the parties comes into court. All we are asking here is that, as far as possible, the rules will be clear when the case goes into court.
Could the Minister say whether, in connection with Rent Restrictions Acts in operation prior to 1920, the English Acts applied then?
Yes.
I was not quite clear whether we are dealing with the amendment to the amendment or the amendment itself.
We are dealing with both.
I was waiting until we came to the amendment proper. The amendment introduced by the Minister is to meet a point which was raised on the last stage by Senator Kingsmill Moore and myself, and it meets the point we have in mind in a perfectly fair and clear manner. The Bill was discussed at very great length in Committee, and it is going to be discussed at great length now, and I think it would be wrong if I did not take the opportunity, on the first amendment that the Minister has brought in to meet me, of saying that he has been most reasonable, and has met in a very fair manner every amendment that I personally introduced on the last stage. It is only right that, when one criticises strongly, and when one is met reasonably, that reasonableness should be acknowledged. I cannot see any violent objection to Senator Duffy's amendment to the amendment. It appears to me to cover such a minute number of cases that I do not think it really matters an awful lot— cases where premises were not let at the beginning of 1914 and were let up to 1917. The definiteness of the sub-section, as now drafted, must be clearly held, and all that it is going to mean is that in a case where the premises were not let from 1911 to 1914, they will also consider the question from 1914 to 1917. There is an objection there, I think, from the tenant's angle, but it is not for me to mention that objection.
That is true.
It appears to me that Senator Duffy is going to put a tenant in a slightly worse position. However, the number of such cases will be so small, in my opinion, that I do not think it is advisable or worth while discussing it.
I feel that I am responsible for the trouble that has arisen here, because the Minister's amendment arises out of a suggestion which I made on the Committee Stage. The only object of my suggestion was to prevent a flood of what I might call "chance-your-arm" applications. If you had a provision that a person could go to the courts and ask them to fix a new rent, purely having regard to other premises in the neighbourhood or premises of a similar nature, it was very possible that although the landlord and tenant had, for a matter of 20 years or more, been carrying on in the greatest amity, because all the facts were known which would enable them to fix the 1914 rent and the permitted increases, either the landlord or the tenant might consider that they could upset that state of equanimity and take a chance on the court fixing another rent, and that the court, in spite of the fact that there would be before them complete, certain and, in all respects, satisfactory evidence of what was the 1914 rent, might feel themselves coerced by the wording of the section to disregard that evidence. The amendment, as drafted, does not oblige the court to fix a new rent on the basis of the 1914 rent and the permitted increases. It does not oblige the court to fix it on the basis of the rents charged for similar tenements. It gives the court a free hand to do what it thinks right. No doubt if it finds that all the necessary evidence is before it to establish what the standard rent and the permitted increases should be, and that what the landlord and tenant acquiesced in has been fair, the court will have due regard to those things. The Minister's amendment carefully avoids a definite, an iron standard, but allows the court to take into consideration the standard rent and the permitted increases. They can legitimately take the facts into consideration.
I would urge the House to take the amendment as the Minister has drafted it, leaving it to the court to investigate both those standards where the evidence of these standards can be produced and leaving it to the court to fix the rent, having regard to both of these standards. I cannot see any reason for introducing any other standards. It would merely confuse the court and certainly prevent landlord and tenant from forming any pre-assessment of what the court might do. It was very necessary that both landlord and tenant should be able to make such a pre-assessment so as to avoid unnecessary and vexatious applications.
An Leas-Chathaoirleach
Is the amendment being withdrawn?
I think it is accepted.
Oh, no.
An Leas-Chathaoirleach
Is it being withdrawn?
No.
Second amendment to amendment No. 8 put and declared negatived.
Amendment No. 8, as amended, agreed to.
I move amendment No. 9:—
In page 8, Section 10, to add to the section a new sub-section as follows:—
(2) Sub-section (1) of this section shall not apply to premises the increase in the rateable valuation whereof arises from improvements or structural alterations carried out by the landlord while in possession of the whole of the premises.
This is another amendment brought in to meet a point raised on the last occasion. Senator Sweetman, I think, raised a point under Section 10 where a house comes into the vacant possession of the owner and he does certain structural alterations which bring the valuation above the 1923 standard. He suggested he should be allowed to increase the rent.
Yes, it covers the case of a landlord who does structural alterations and brings the house from one class to another.
Yes, it goes from Chapter 1 to Chapter 2 when, getting vacant possession, he does substantial alterations. I think Senator Sweetman stated when urging this amendment that if the owner was prevented from getting this advantage he would sell the house instead of letting it.
Amendment agreed to.
I move amendment No. 10:—
In page 8, to delete lines 35 to 40, inclusive (Section 10).
My intention was originally to delete this section entirely. It seemed to me logical that the house should remain within a certain category so far as valuation is concerned. Senator Sweetman's suggestion, which has been accepted by the Minister, improves the position very considerably, but we can also conceive of premises of this kind being improved by the tenant himself and the improvements tending to increase the valuation. It seems always illogical that, in spite of the valuation going up, the premises would remain controlled. As I said, the amendment moved by the Minister improved the position considerably, and since there are many other and possibly more contentious amendments to be dealt with, I will not detain the House. With your permission, A Leas-Chathaoirligh, I will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 11:—
In page 9, Section 11, sub-section (2), to delete lines 23 to 28, inclusive (paragraph (e)), and insert in lieu thereof the following paragraph:—
(e) in the case of premises to which Section 8 of this Act applies, if the landlord has, in the year 1922, expended an amount in excess of one-third of the standard rent, or has, during a period comprising the two years 1923 and 1924, or 1925 and 1926, or 1927 and 1928, expended an amount in excess of two-thirds of the standard rent, on putting the premises into a reasonable state of repair, a sum equal to 15 per cent. per annum of which excess or excesses of expenditure.
This is really a drafting amendment. We had referred to certain paragraphs in the Bill and the idea of this amendment is to state specifically what we referred to rather than refer to this section and that paragraph. There was one pair of years left out in this provision and I looked into it. Senator Sweetman wished to make provision for this pair of years, but I think it would not be right because a period of 20 years has elapsed since then and the tenants might not have been in occupation of the premises when the repairs were done. Even if the people were in the premises it would be very difficult to raise the rents 20 years later. I could not agree to do that. There is another amendment later dealing with the newer types of houses.
The Minister has left out the years 1926 and 1927?
Yes, for the reason I have given. I think that they were left out inadvertently at the time and the period would be too long to set matters right.
Amendment agreed to.
I move amendment No. 12:—
In page 9, Section 11, sub-section (2), to insert after paragraph (f) a new paragraph as follows:—
(g) in case the landlord, during a period comprising the two years 1945 and 1946, or 1946, and 1947, or 1947 and 1948, or 1948 and 1949, or 1949 and 1950, expends an amount in excess of two-thirds of the basic rent of the premises on putting the premises into a reasonable state of repair, a sum equal to 15 per cent. per annum of such excess or excesses of expenditure.
This amendment deals with the never type of houses.
Amendment agreed to.
I move amendment No. 13:—
In page 11, Section 15, to insert at the end of the section a new sub-section as follows:—
(3) If, on an application to the court under this sub-section by the landlord or tenant of premises to which Section 14 of this Act applies, the court is satisfied that the basic rent of the premises either exceeds, or falls short of by an amount exceeding one-fifth of the basic rent, the rent (in this sub-section referred to as the notional rent) which, if the premises were premises to which Section 16 of this Act applies, would be determined by the court as the basic rent thereof, the basic rent of the premises shall be determined by the court and shall be the amount which, in the opinion of the court, represents the notional rent, and thenceforth the premises shall, without prejudice to the previous application thereto of paragraph (a) of Section 23 of this Act, become premises to which Section 16 of this Act applies as if such determination had been made under that section.
This amendment is designed to meet the case where a person had a relative who paid too low or too high a rent.
Amendment agreed to.
I move amendment No. 14 and also amendment No. 17:—
Amendment No. 14:
In page 11, Section 16, to delete sub-section (2), and insert in lieu thereof the following sub-section:—
(2) The basic rent of premises to which this section applies shall be determined by the court as follows:—
(a) in the case of premises consisting of a seperate and self-contained flat or tenement forming part of any buildings which, after the 7th day of May, 1941, are or which at that date were being bona fide reconstructed by way of conversion into two or more such flats or tenements, the basic rent of the premises shall be the rent which, in the opinion of the court, the immediate landlord of an occupying tenant of the premises might, if the premises, as reconstructed, had been in existence in the year ending on the 7th day of May, 1941, reasonably have expected in that year under any given contract of tenancy not being for more than a term of five years;
(b) in any other case, the basic rent shall be the rent which, in the opinion of the court, the immediate landlord of the premises might, in the year ending on the 7th day of May, 1941, reasonably have expected under any given contract of tenancy not being for more than a term of five years.
Amendment No. 17:—
In page 12, Section 17, sub-section (2), to insert at the end of the sub-section a new paragraph as follows:—
(f) in the case of premises to which paragraph (a) of sub-section (2) of Section 16 of this Act applies, a sum equal to 8 per cent. per annum of such amount as bears to the total cost of the reconstruction of the buildings referred to in that paragraph the same proportion as the rateable valuation of the premises bears to the rateable valuation (or the total of the rateable valuations) of the said buildings as reconstructed.
These two amendments contain the provisions under which the lawful rents of newly-controlled flats will be determined and I suggest to the House that they may be conveniently discussed together.
The first amendment provides in paragraph (a) for that manner in which the basic rent of the flat will be determined. In effect all that is done is to extend the principle of the existing Section 16 by taking the year ending on the 7th May, 1941, as the period by reference to which the basic rent will be determined. On the assumption that the flat, as now reconstructed, was then in existence, the court will fix the basic rent as the rent which the landlord might in the year in question reasonably have expected to obtain from an occupying tenant in a letting for a term of not more than five years. This, I think is the fairest standard to apply for the determination of the basic rent and it fits in with the general scheme of Chapter 2 of Part II.
The more difficult part of this problem is to determine what addition to the notional fair 1941 rent should be allowed in view of the increased cost of reconstruction work as compared with the 1941 or pre-1941 cost of such work. In the second amendment we have tried to deal with this by providing that the landlord should be entitled to a lawful addition reckoned as eight per cent. per annum of the portion of the total cost of reconstruction which might be attributed to the particular flat. The amendment provides that, for this purpose, the total cost should be apportioned between the different flats in the proportions that the rateable valuation of each flat bears to the total rateable valuation of the building or buildings as reconstructed. This, I am advised, is the only fair and practicable way of apportioning the cost of reconstruction.
I do not think that an allowance of 8 per cent. of the cost of reconstruction can be described as excessively generous. Our object here is to prevent extortionate rents being exacted from tenants for these newly-created flats under the stress of the existing scarcity of accommodation for letting. It is, however, I am sure, the desire of none of us that the provision of new and much-needed accommodation through the reconstruction of the older and more obsolete type of house into seperate and self-contained flats should be prevented or discouraged. The speculative builder or investor who puts his money into a business of this kind is doing a useful work and he is entitled to a fair and reasonable return on his money and to some reward for his enterprise. I think that 8 per cent. is fair. It is not too much and it is not too little. People leave flats, I think, more frequently than they leave houses and, perhaps, they do not always pay their rents. The proposal I make is, I think, fair.
Amendments Nos. 14 and 17 agreed to.
Maidir le leasú a 15, táim sásta go bhfuil an cheist so sacraithe faoi alt (d) agus ba mhaith liom an leasú do tharraing siar.
It appears to me that this amendment is extremely sound. It deals with the question of houses and sub-section (2), as originally drafted, was perfectly in order because then the date was to be the 7th May, 1941, so far as I can see.
Paragraph (d) covers my point.
I beg the Senator's pardon.
Amendment, by leave, withdrawn.
I move amendment No. 16:—
In page 12, Section 17, sub-section (2) to insert after paragraph (d) a new paragraph as follows:—
(e) In case the landlord, during a period comprising the two years 1945 and 1946, or 1946 and 1947, or 1947 and 1948, or 1948 and 1949, or 1949 and 1950, expends an amount in excess of two-thirds of the basic rent of the premises on putting the premises into a reasonable state of repair, a sum equal to fifteen per cent. per annum of such excess or excesses of expenditure.
Amendment agreed to.
I move amendment No. 18:—
In page 13, Section 19, to add to the section two new sub-sections as follows:—
(2) There shall be implied in every contract, made on or after the operative date, for the sale of any interest in controlled premises (if not already expressly included) a provision binding the vendor to give to the purchaser any information in the vendor's possession or procurement requisite to enable the purchaser to determine the basic rent of the premises or any part thereof.
(3) Every stipulation in a contract for the sale of controlled premises, whereby the purchaser is precluded from making requisitions as to the matters mentioned in sub-section (2) of this section, shall be void.
This amendment is introduced to meet the point raised by Senator Sweetman, that the vendor should give any information which would enable the rent to be fixed.
Amendment agreed to.
I move amendment No. 19:—
In page 14, Section 20, sub-section (5), line 31, to delete "or (f)" and insert in lieu thereof the following: "(f) or (g)"; and in line 32 to delete "or (d)" and insert in lieu thereof the following "(d) or (e)".
This amendment is consequential on amendments Nos. 12 and 16.
Amendment agreed to.
I move amendment No. 20:—
In page 15, Section 22, sub-section (2), lines 2 and 3, to delete the words "by the production of a certificate of the sanitary authority or other evidence".
Amendment agreed to.
I move amendment No. 21:—
In page 15, Section 22, after sub-section (2) to insert a new sub-section as follows:—
(3) In any application under this section, a certificate of the sanitary authority that the premises to which the application relates are not in all respects in good and tenantable repair shall be prima facie evidence of the facts so certified.
Amendment agreed to.
I move amendment No. 22:—
In page 15, Section 22, sub-section (4), lines 31 and 32, to delete the words "if the authority as the result of such application issues a certificate" and insert in lieu thereof the words "on an application made to the court under this section the court may order that".
Amendment agreed to.
I move amendment No. 23:—
In page 17, Section 28, sub-section (4), to insert after the word "reward" in line 8 the words "or is remunerated directly or indirectly out of the funds of any body corporate or unincorporated body of persons of which the tenant is or was a member or to the funds of which he has been a subscriber".
This is to deal with the chancers, where you have a sort of bogus society established.
A very unfair description of the gentlemen in question.
Amendment agreed to.
I move amendment No. 24:—
In page 17, Section 30, sub-section (1), line 56, to delete the words "without prejudice to any other manner of service" and at the end of the sub-section to add the words "under the rules of the District Court for the time being".
Amendment agreed to.
I move amendment No. 25:—
In page 20, Section 37, to delete line 45 and insert the following:—
"(e) In the case of a dwelling the occupier of which has been in occupation for not less than 20 years—
(i) the dwelling is reasonably required by the landlord for occupation as a residence for himself or for any person bona fide residing with him and
(I) in the opinion of the court greater hardship would, owing to the special circumstances of the case, be caused by refusing the order for possession than by granting it, and
(II) the court is satisfied that alternative accommodation, reasonably equivalent as regards rent and suitability in all respects, is available, or
(f) in the case of any other dwelling—"
On the last occasion, I endeavoured to get an amplification of Section 27, and I am afraid I was not successful. I had in mind paragraph (e) of sub-section (1). The sub-section provides that an Order for the recovery of possession of controlled premises shall not be made by the court unless the court considers it reasonable to make the order and other named conditions follow. In the case of a dwelling, the order may be made if the dwelling is reasonably required by the landlord for the occupation of himself or any person bona fide residing with him or about to reside with him, and either of two conditions apply, that is the condition of greater hardship and the condition of alternative accommodation.
If these conditions are reasonable, that is to say, if they are sufficiently good grounds on which the court may base an order for possession in the normal case, I doubt if they are sufficiently strong grounds in the case of a person who was for a very considerable time residing in a particular dwellinghouse. What I am endeavouring to do in this amendment is to make a distinction between a person who was residing for 20 years or more in his dwellinghouse and the person residing there for the last four or five years.
The effect of the amendment would be that if the landlord applied for possession his application will be refused unless it is shown that the dwelling is reasonably required by the landlord for occupation as a residence for himself or any person bona fide residing with him. It omits to add the provision which states that possession might be given if the premises are required by a person who was about to reside with the landlord if in the opinion of the court greater hardship would be inflicted by granting than by refusing the application and if it were granted that alternative accommodation is available.
I think the House will agree that there should be very substantial grounds upon which the court would base an order for possession in the case of a person who has been residing for probably half a life-time in a particular house. Usually what would happen is this: the landlord comes into court and claims possession because he wants the dwellinghouse for his own use or for a member of his family or for some relation or for some person who is not a relation who is residing with him or is about to reside with him.
The court will have to be convinced that the application is not unreasonable. Before forming a judgment whether it is reasonable or not, the court would have regard to the Act and with all these indications such as I have enumerated I think the court is almost bound to say that if the landlord can show he wants the premises, no matter how long they may have been occupied by the tenant, for his own use, or the use of a relative or the use of somebody residing with him or about to reside with him and that there is reasonable accommodation available somewhere else, the court will grant the application. Bear this in mind, the landlord in this case applying for possession may be somebody who bought the premises three or six or 12 months ago. He may, indeed, show very good reasons why the court may let him have some premises somewhere. He may need them, but I think it is a matter for consideration by this House whether the greatest protection possible should not be afforded to a person who has been in occupation for the last 20 or 30 or 40 years.
I think it should be made clear to the court that this House believes that in that case a landlord shall not get possession unless certain onerous conditions are fulfilled, and, consequently, in the amendment I am putting up here, conditions are more onerous, before the court can be satisfied and give possession. The conditions are considerably more onerous than they would be in the case of a tenant who is residing for only a short period in the house in respect of which possession is sought.
If the members of this House will reflect on instances known to themselves, because I am sure they must be known to every member of this House, they will agree with me that in the past, under the existing law, hardships have been inflicted on families who have been forced to give up possession where the premises are claimed by a landlord on certain stated grounds. I have known of a case where a man with his family had been in possession of a house for a long period, 15 to 20 years. The premises were sold, and the person who bought the premises had also a large and a young family and he resided in a rather small house. No doubt, he required the use of the premises he had purchased, and of course he was in this fortunate position as compared with the tenant, that he had money and the tenant had none. He sought to get possession of the premises. The case was heard in the Dublin Circuit Court, when the Circuit Court judge refused the application. He considered it would be a greater hardship to dispossess the tenant, and refused the order. A year later the landlord renewed his application and succeeded in getting possession. I am not at all denying the fact that, in this case, the landlord required the house very badly, but he required it no more than did the tenant who occupied it and who had been there for 15, 20 or 25 years.
The landlord had two advantages over the tenant. First of all, as I have said, he had sufficient money to be able to go to court as often as he liked, and, in the second place, he had a house to live in. It may not have been as well appointed as the house that he purchased, but at least he had a house of reasonable size in which to live. The tenant who was being dispossessed had no house, and was unable to get one for a very long time. His family and himself had to live in two rooms. I think he had a family of eight or nine children, so that all of them had to live in two rooms in a side street in Dublin for a period of 18 months. So long as social conditions are as they are now, it will be utterly impossible to avoid hardship being inflicted on many classes in the community, but we ought to be able to do something to prevent hardship being inflicted except to the minimum extent. My proposal in this amendment is not an unreasonable one. I am endeavouring to say that, if a man, with his wife and family, have been living in a particular house, paying their rent and observing all the conditions of the tenancy for a period of 20 years or more, that they should not be dispossessed except in very exceptional circumstances and that these exceptional circumstances should be clearly written into our legislation.
This is a very human amendment, and though it may not be completely logical or fit, with great nicety, into the framework of the Bill, it does seem to me to be one which the House might consider. Twenty years is a long time, almost a generation, and in that period the family circle will have widened. The children will have grown up and the house will have become not merely a machine for providing shelter and warmth but something more than that: something in the nature of a living symbol to that particular family. The inanimate walls and the human beings will have interpenetrated each other. They will have become part of each other, and I do feel that, in cases like that, the tenant is entitled to greater consideration before he is severed from something which means more to him than a mere dwelling-house, something which is going to occupy in his life a position which it is hard to define in words, but which has, in certain cases, almost an element of the sacramental in it. I have always felt that where a family has been able to pay rent and live in a house so that it becomes part of their lives, that there is a queer kind of equity arising from that which entitles these people to rather exceptional consideration.
For that reason the principle of the amendment appeals to me. I think the wording of it will have to be altered a bit, but I would ask the Minister to consider whether the principle of the amendment, and the feeling that lies behind it, are not worthy of careful consideration, and, if possible, incorporating both in slightly different words in the Bill.
From the way the amendment is worded it would, I think, cause some rather strange implications in the Act. The section provides that no order for possession should be given unless, etc. Senator Duffy proposes that, in the case of a tenant who has been a tenant of the house for 20 years, the position shall be so and so. If the Bill were changed in that way it would appear to me that a tenant who had been in possession for 20 years or over could be put out, but that a tenant in possession for a lesser period could not. In my opinion, the present section in the Bill should be left unaltered. A new section might be inserted relating to tenants who had been in possession for 20 years and upwards. That is the only way, I think, in which the object aimed at by the Senator could be achieved. I was wondering if Senator Duffy, in his amendment, was thinking of an Order that was made by Dáil Eireann in 1921. That Order said that a landlord who had possession for a certain number of years, or who was an owner for a certain number of years, was in a certain position. In other words, the effect of the Order was that a new landlord coming in could not take the benefit of the Order at all. The object was to prevent a landlord buying a house over the head of a tenant. That was a very good provision, and I would like to see a similar one in this Bill—one to prevent a man buying a house over the head of a tenant and then putting the tenant out.
I think that Section 37, as it stands, is restrictive enough. Under paragraph (e), that deals with getting possession, the landlord has to satisfy the court on the question of the greater hardship in refusing him possession or that there is alternative accommodation. Under sub-clause (ii) of paragraph (e) the court has to be satisfied that "alternative accommodation, reasonably equivalent as regards rent and suitability in all respects, is available". After all, if there is anything at all in owing a house, something is to be said for the man who wants it for a relation of his own and is able to offer alternative accommodation. He has to show that there will be a greater hardship imposed on him by refusing him possession.
Under this restrictive clause the court has to consider whether it will be reasonable to make the order. I think that the rights of occupying tenants are very well safeguarded, and that landlords are sufficiently restricted under Section 37. After a long debate in the Dáil, that section was amended, and I do not think that we should add any further restrictions. I would imagine that the fact that a family has for 20 years been in the house would be one of the circumstances that the court would consider before making an order. I think that the court would be bound to have regard to that. I am not prepared to make the section more restrictive than it is. I think that the position of occupying tenants is, as I have said, very well safeguarded in the section as it stands.
I have received a letter from a lady living in Bray in which she discusses a number of things concerning this Bill. As regards some of the matters she mentions, she flatly contradicts many of the statements made by the Minister and published in the Press. I will read just one extract from her letter in which she says:—
"My daughter and I had a large boarding house where we resided for more than 20 years. The owner sold the house and, of course, we had to get out. The new owner wanted it for a friend, a wealthy relative who came over from England. That was 15 months ago. The relative is now, I believe, paying a much increased rent. For the past 15 months we are continually moving from room to room. I paid £5 a month for a two room flat, but now I am informed I must get out again."
Now, there is a statement of fact, written by a person who has had experience of these things.
Did the lady suggest that the court said that she could be put out, or did she go to the court?
No.
There you are. That is the position. If people will not take steps on their own behalf what can we do?
I take it that she must have consulted a solicitor. At any rate she wrote to the Minister and he advised her to consult a solicitor.
What else could I do?
But the Minister is now refusing to take the power which, by this amendment, I am giving him the opportunity to take. The lady says that the Minister had advised her to consult a solicitor, and I am assuming that she did so, and while all solicitors may not be so familiar with the Rent Restrictions Acts as, I assume, Senator Sweetman is, still Dublin is a very large city and there must be a very large number of solicitors who are acquainted with the various changes in the law, and who could have advised this lady as to whatever rights she had under the Acts. The deduction that I draw, however, is that this lady must have resisted the claim of the landlord to get possession, or that if she did not resist it she must have been advised by a competent solicitor not to do so. At any rate, she is now out of the house which, she says, was a very large boarding house, and I assume that that was her only means of livelihood during all those years, but the new owner had possession and had a friend who came over from England to reside in Bray. That friend is residing there, and, according to this lady's information, is paying a very much increased rent. All these things may seem to be so fantastic and so at variance with the good intentions that we have in passing this legislation, that one hesitates to mention them, but I have no doubt whatever that the story I have recited is typical of hundreds of cases that are occuring throughout this country. When we come to draw up an outline of legislation in this House, it seems that we ignore all the failings and all the weaknesses of human nature, and we draw up a scheme of legislation intended for archangels, knowing, as we must know, that much of it will never be operated because we have not taken the steps that would enable us to draft a scheme which would give protection to the weak against the strong.
Of course, if the Senator's facts are correct, that this friend of the new owner was coming over from England to reside in the house, it is perfectly clear that under paragraph (e) of sub-section (1) as drafted, that lady could not be put out of her house because the dwelling was not then reasonably required by the landlord for occupation as a residence for himself or for any person bona fide residing with him.
Or about to reside with him.
If the case is made that that man was coming over here and required a large house of the type the Senator suggests, I cannot conceive of any court giving such a judgment as the Senator has implied, and I am perfectly certain of one thing, and that is that if such a decision were given by a court it would be considered so extraordinary that it would certainly be reported in the Law Reports and I can assure the Senator that I read that report fairly carefully each week, and such a decision has not been reported.
Question—"That amendment No. 25 be agreed to"—put and declared negatived.
I move amendment No. 26:—
In page 21, Section 37, to delete sub-section (2), lines 17 to 25, inclusive.
I do not know if the Minister has considered this amendment. I probably should have moved to have the words "entire premises" inserted rather than to have this portion of the sub-section deleted. I know that the decisions so far have been to the effect that a tenant can sublet portion of a premises and that the landlord is not entitled to eject him, but those are decisions that may be varied from day to day, and I wonder would the Minister consider inserting the words "the entire premises".
An Leas-Chathaoirleach
Is this on amendment No. 26?
Yes, Sir, No. 26. I am moving for the deletion of certain words. I daresay that the Minister would not agree to that, but would he agree to insert, on the Report Stage, the words "entire premises"?
An Leas-Chathaoirleach
Where does that come in?
It would then read: "Nothing in sub-section (1) of this section shall affect the right of the landlord to obtain an order against a tenant for the recovery of possession of any controlled premises where the tenant has sublet the entire premises, otherwise than for temporary convenience to a sub-tenant." If the word "entire" were inserted there before the word "premises", it would meet my fears in the matter, because my fears are that at any time the courts may change their views of what is a premises or part of a premises, and the tenant could be evicted.
Who could be evicted —the sub-tenant?
The tenant. I suggest that if "entire premises" were inserted it would bring the Act into conformity with the decisions that have already been given, because there were cases where part of the premises was sublet and the landlord brought the case into court, and the decision was that you cannot eject a tenant because he sublets part of the premises.
Does that decision not depend on the wording of his agreement?
No, on the Act. There are similar words in the 1923 Act. If the Minister will consider the point between now and the Report Stage, I shall withdraw the amendment.
I want, first of all, to say that if the Minister is going to introduce such an amendment on Report, I shall oppose it, because it appears to me that this sub-section is reasonably clear as it is at present, and if the agreement contains the ordinary proviso, that the tenant shall not sublet the premises or part thereof, then I fail to understand why Senator O'Dea should wish to alter the terms of the contract. It appears to me that the terms of the contract should be left as they are.
It would be illegal.
Then I must have missed Senator O'Dea's point.
The section to which the amendment refers is exactly the same as in Article 11 of the Emergency Powers Orders. It is a kind of safeguard for the sub-tenant. I am not quite able to follow Senator O'Dea's reason for deleting it.
Amendment, by leave, withdrawn.
I move amendment No. 27:—
In page 21, Section 37, to add to sub-section (2) a new paragraph as follows:—
(c) any tenant of controlled premises who may be entitled to a new tenancy under the Landlord and Tenant Act, 1931 (No. 55 of 1931) may at any time apply to the landlord for a new tenancy under that Act and on the refusal or neglect of the landlord to give such new tenancy may apply to the court for such new tenancy under that Act in the same manner as if he had been served with a notice to quite within the previous month.
The reason I put down this amendment was because of the arguments in the House on a previous occasion. I was told then that I had forgotten that the cases to which I referred came within the provisions of the Landlord and Tenant Act, 1931. I pointed out that they did not and could not come within the provisions of the 1931 Act. The only two ways the tenant can come within the provisions of the Act are by getting notice to quit or when his lease is due to expire. The Minister stated that he contemplates amending the Landlord and Tenant Act, 1931, and probably his amendment will be wider than what I have put down here. If it is wider it will have a great effect. Senator O Buachalla has shown me a letter. I will not mention the party's name or the town from which it came. It shows that a man has a house let to him and the measurements are 18 feet by 12. The rent is £156 per year. This tenant does not come within the Landlord and Tenant Act because he would not get notice to quit from his landlord. On account of the Minister's statement that he intends amending the Landlord and Tenant Act, I withdraw the amendment, with the permission of the House.
Amendment, by leave, withdrawn.
I move amendment No. 28:—
In page 21, Section 39, sub-section (2), to delete line 46, and insert in lieu thereof the words "entitled to retain possession of the premises and to hold from the landlord on the".
This is simply a drafting amendment rendered necessary by the new definition of statutory tenant. No change of substance is proposed in the sub-section.
Amendment agreed to.
Business suspended at 6 p.m. and resumed at 7 p.m.
It was agreed to discuss amendments Nos. 29, 30, 31 and 32 together:—
29. In page 22, Section 40, to delete sub-section (3), lines 22 to 33, inclusive.—(Senator O'Dea.)
30. In page 33, Section 40, sub-section (3), in the new paragraph (a) (inserted in Committee of the Seanad) to delete the words "assignment or" and also the words "or any part thereof" and to add to that paragraph the following words:—
"unless for an assignment made with the consent of the landlord or made without such consent when the court shall have determined or shall determine that the witholding of such consent was unreasonable. On the lawful assignment of a statutory tenancy for valuable consideration the assignee shall be deemed to be a contractual and non-statutory tenant."—(Senator O'Dea.)
Government amendment. 31. In page 22, Section 40, sub-section (3), to insert at the end of the sub-section a new paragraph as follows:—
(d) Paragraph (a) of this sub-section shall not apply to premises lawfully used wholly or in part for the purposes of any business, trade or profession.
32. In page 22, Section 40, after sub-section (3), to insert a new sub-section as follows:—
(4) Sub-section (3) of this section shall not apply to any premises part of which is used for the purposes of any any business, trade or profession. —(Senator O'Dea.)
Sub-section (3) of Section 40 provided that "a statutory tenant shall not as a condition of giving up possession"—there an amendment was introduced by Senator Kingsmill Moore, "or assignment"—"of controlled premises"—"or any part thereof" was inserted as an amendment—"ask or receive any sum, or any other consideration, by any person other than the landlord". My first amendment was to delete that sub-section. I explained on other occasions the effect of making a person a statutory tenant. He might have a very valuable premises. The law said that he could assign unless there was a condition in the agreement which would prevent him from so doing. Even if there was such a condition in the agreement, the Landlord and Tenant Act, 1931, provided that the landlord could not withhold his consent unreasonably. In other words, the Landlord and Tenant Act, 1931, changed all agreements that prevented assignment or subletting by adding the words "provided, however, that such consent shall not be unreasonably withheld". The Increase of Rent Acts, passed from 1930 onwards, including the 1923 Act, contained a provision exactly similar to sub-section (3) of Section 40 of this Bill. Now, Senator Kingsmill Moore has made that much worse by inserting the words "or assignment" and by adding the words, after the word "premises", "or any part thereof". If those words are allowed to remain in the Bill, it will mean that a man will not be able to part with any portion of his premises or sublet them even by way of a flat or as rooms. Those rooms would be part of the premises and he could not receive any rent in respect of them because that would be a consideration. That would put a burden on the tenants that would be very unfortunate. It would also be unfortunate for persons badly in need of a house who could not get rooms because of that condition but who could get them if the condition were not there. The sub-section changes the law as it existed up to 1920. This clause was taken from the other Acts and it was the one blot of a serious nature I saw in the Bill. It particularly affected houses in which a business or trade or a profession was being carried on and in which the tenant would reside. Such a house is often very valuable. The majority of shopkeepers live in, or on, their business premises. All such are controlled under this Bill if the valuation is less than £40, in the country, and £60, in the City of Dublin. Very few houses in the country would have a valuation of £40, so that one may say that every business house in the towns would come within the terms of the Bill. Such a premises might be worth from £2,000 to £10,000. According to this sub-section, a man could get no money whatever for assigning his interest in such premises if at any time his rent had been increased or reduced under any of the Acts passed from 1915 onwards.
I am anxious, therefore, that this sub-section should be deleted, and I am particularly anxious that the amendment made on the last occasion should be deleted and a clause added. The Minister has very kindly met my point of view in the amendment he has proposed and I am sure it will be accepted without any difficulty in this House, but I do believe there are other dwellinghouses—some of them occupied for 30, 40 or 50 years—which are regarded as the homes of the tenants, and as Senator Kingsmill Moore stated, a man who has such a house regards it with a good deal of sacredness.
He may have improved that house from a poor four walls to a beautiful residence, and money may have gone into that for many years. Yet if its rental was ever increased or reduced, he cannot get one penny for his interest in that house. If the Landlord and Tenant Act is amended, he may be entitled to claim a new tenancy, but there will have to be very serious amendments because sub-section (2) of this section provides that the tenant of a statutory tenancy is not entitled to have notice to quit and therefore cannot come within the Landlord and Tenant Act unless it is so amended as to allow him to come within that Act.
I have no business proposing that the sub-section be deleted—I do not think the Minister would agree to that —so I come down to a proposition that the words "assignment or" and also "or any part thereof" be deleted from that section and that the following words be added:—
"unless for an assignment made with the consent of the landlord or made without such consent when the court shall have determined or shall determine that the withholding of such consent was unreasonable."
The next sentence I put in is:—
"On the lawful assignment of a statutory tenancy for valuable consideration the assignee shall be deemed to be a contractual and non-statutory tenant."
The reason I put that in is that even if the assignment shall be made subsequently, paragraph (a) of this sub-section shall not apply to premises lawfully used wholly or in part for the purposes of any business, trade or profession. Even if that amendment itself is accepted, it will not carry us very far because a statutory tenant would be a person whose tenancy was determined on his death if he left no wife or child who was living in the house with him at the time of his death.
A statutory tenancy is, very often, a tenancy for life only, and the only thing that a purchaser would get would be the interest of that tenant for life which might not last one day. There was an amendment suggested by the Minister, and Senator Sweetman has an amendment to the Minister's amendment, to make the person have only the interest the assignor had Suppose John Brown is a statutory tenant. A young man anxious to start business comes to John Brown and says: "I will give you £4,000 for your premises" and they make a deal. The purchaser goes to his solicitor and says: "I have bought John Brown's premises for £4,000." The solicitor would say: "You are a young man and you have no wife and no child. If you died to-morrow, that house goes back to the landlord so therefore your £4,000 is gone away and you are in very great danger."
The Minister has an amendment which covers that, and for that reason I will not have to propose one of my amendments on that section, but I do think that the amendment I have proposed in No. 30 ought also to be accepted because it would cover houses other than business houses. As I say, there may be cases where the landlord has a very good tenant who has spent a lot of money on improvements. Senator O'Reilly drew my attention to the fact a few minutes ago that very often a man would spend a lot of money on improvements and be put out of his house without getting any compensation whatever. It would cover a case of that nature and I suggest that that amendment should be adopted. I take it for granted that the Minister's amendment will be adopted. I also take it for granted that Senator Sweetman's amendment will not be adopted. That is the amendment to the Minister's amendment.
What number is that?
Number 35 is the Minister's amendment, and then there is an amendment to amendment No. 35.
Senator Sweetman is not going to move that and he has authorised me to say that to the House.
I am glad of that. There will be no trouble about it, so I would ask the Minister to accept amendment No. 30 and if he does not accept it, as he has met me so fairly on the other matter, I will not press it against his wishes.
I wonder if the House would agree to take amendment No. 33, standing in my name, because it more or less bears on the other amendments. I had a suggestion to make, if I am allowed to speak on this now, which might help to get over some of the difficulties which have been mentioned by Senator O'Dea. May I proceed?
What amendments are we discussing now?
Nos. 29, 30, 31 and 32. Senator O'Reilly is making a reference to No. 33 which, he says, has a bearing on the previous amendment.
If I am allowed to speak on it; it has a bearing on them.
I think it would be better to dispose of the other amendments and then you could deal with No. 33. It is a separate amendment.
And to a different sub-section.
It is to the same section.
I do not desire to proceed unless the House wants me to.
I am not and do not claim to be an expert. I find a considerable amount of difficulty in following Senator O'Dea, but it does seem to me, and I hope I am not misrepresenting him — I am sure I have no intention of doing it—that he has a different idea from that held by me, and quite a number of members of the House, with regard to what should be done in the five-year duration of the Rent Restrictions Acts. It seems to me to be fundamentally wrong to give a monetary value under the Rent Restrictions Acts to a tenant which he did not have under previous legislation or under his lease. To do that would lead to all kinds of anomalies and would be wrong. What would happen at the end of five years, I do not know, but it seems to me that the whole object of the Rent Restrictions Acts is to see that persons are not forced unreasonably to pay inflated rents which they cannot afford and to see that they are not removed from their premises. It is not to give a value to premises from which they are willing to move. That, to my mind, defeats the Act altogether, and it seems to me the effect of this amendment, certainly the intention—being a bit hazy about the exact effect—is to give a value which a person has not got at the present moment, and I am opposed to that being done under the Rent Restrictions Act.
I am afraid I must oppose the view of the Act which has been so vigorously put forward by Senator Louis O'Dea. I recognise that where a tenant has been a long time on the premises, there might be a sentimental association which would entitle him to remain on with his family, but I entirely deny and dissent from any suggestion that he should be allowed to make money. The protection is given in order to keep a roof over his head.
You do not intend to create a new form of legal holding or create a new monetary interest with which a tenant may trade. As I understand them, all the amendments of Senator Louis O'Dea are designed to give to the tenant, not merely protection to himself, but to vest in him a tangible monetary interest which he would not have had under common law, which he did not have under any of the earlier Rent Restrictions Acts, and, as I suggest to the House, he should not have under any legislative principle under this Act.
On a point of order, he had it under common law. The only thing that took it away was the Rent Increase Acts. All I ask is that the injustices done by the other Acts should cease to exist.
I do not think he had it under common law, with all respect to the Senator, because once notice to quit under common law had been served he had to go out and had nothing to assign. In this case, we are dealing with people on whom notice to quit had been served. The policy of this Act and of the earlier Acts is to see that because of the shortage of houses the rights of tenants are protected, and to see that a common-law tenant should be entitled to remain in the house, but not that he should be entitled to get money for it.
The Senator says "have been subject to notice to quit", but he must know that since 1906 no notice to quit was necessary. Yet, he will agree with me, I am sure, that where rent is increased or reduced the tenant is held to be a statutory tenant, even though he got no notice to quit.
The Senator has spoken of 1906. I know, of course, that he means 1926. You could not increase a tenant's rent unless you served notice to quit. That was the old law. Since 1926 there was, in my recollection, a kind of combined notice which had the effect of a notice to quit, so that the Senator's point is, as I understand it, a mere quibbling with words, and refusing to face the realities.
There is no quibbling. Did not the Act provide that no notice to quit need be served on the landlord, so that there is no quibbling about it.
Without the statutes or the rules in my hand I am not prepared to say "yes" or "no" to Senator O'Dea. I think that a mere notice to increase rent—here again I speak subject to correction—did not necessarily make a person a statutory tenant. However, I think that for the moment I may leave these technicalities because I think we are now on broad principles. Senator O'Dea also made some point which would be relevant and of importance if we were considering amendments to the 1931 Landlord and Tenant Act. There is no doubt that, in a number of respects, the Act needs substantial amendment. I understand that the Minister has indicated that very shortly he will be bringing in a Bill for that purpose, and on that Bill I may find myself speaking on Senator O'Dea's side. But it would be, I think, quite outside the scope of this Bill, and calculated merely to introduce confusion, if we were to attempt to amend on this Bill those things which we think need amendment in the Landlord and Tenant Act.
When we were discussing the question of a statutory tenant, and the right of assignment, what I had in mind principally was the dwelling house. I overlooked the fact that there were also business premises concerned. I was under the impression that they were protected by the 1931 Act, but, since I find that is not so, the section has to be amended. Consequently, I brought in amendment No. 31 to cover premises used wholly or partly for business purposes. I agree with Senator Kingsmill Moore that a person should not be protected in premises of that kind to such an extent that he would have a monetary interest in them. I do not think there is any case for that. The Act was intended to keep the roof over his head and not allow the rent to be increased beyond a certain amount. It is a temporary Act. Whatever protection tenants have got in business premises—it applies to ordinary tenants as well—it is given to them by another Act. In this amendment in the case of those who have business premises and who have built up a goodwill in them, I am leaving their position as I thought it was. I think that most people were surprised that they were not protected already. I imagine that, if what Senator O'Dea has suggested were happening to any great extent in the country, we would have received plenty of protests against it. As a matter of fact, we have not. Under the 1923 Act those people were not entitled to any monetary consideration on giving up a statutory tenancy, even where it was a business premises. Now, that the matter has been ventilated, there might be a rush of such cases, and for that reason I decided to bring in amendment No. 31 which meets the situation. I do not think the Senator ought to press for any more. I would not agree to extend it to a dwellinghouse. If a person is guaranteed security of tenure in his house, and if his rent cannot be raised beyond a certain amount, I think that is all that he can expect in an Act of this kind.
In view of the Minister's statement, I am prepared to withdraw amendment No. 29.
Amendment, by leave, withdrawn.
I move amendment No. 30. I ask the Minister to consider this question because, unless the amendment made in Committee is amended, the position under this Bill will be worse than it was under the 1923 Act. A curious thing about the 1923 Act was that in some way or other the provision in it was never recognised, and people sold and bought houses regardless of that sub-section. They never knew that it affected them. The amendment inserted in Committee makes the position very much worse. There is, first of all, the word "assignment" which was not in the 1923 Act. There are also the words "as a condition of giving up possession of controlled premises or any part thereof". I view the words "any part thereof" as a very serious matter, because if they are inserted in the Bill it will simply mean that a man cannot get any consideration for letting in a tenant or letting a flat on the premises. He may have spare rooms, and it is no disadvantage to the landlord that they should be idle. They may be of advantage to an old or to a young married couple looking for a house, and they could be let to them if these words were not in the sub-section.
The words would also appear to cut across another sub-section to the Bill to which I have already drawn attention, to a sub-section in Section 37 on the question of subletting. If a statutory tenant lets two rooms he can, without serving notice to quit, get an ejectment and get him out. I would suggest that the section should stand as it is much as I dislike it. I do not think that we should have made the position worse than it was under the 1923 Act. As I have said, the sub-section in that Act was actually overlooked. Landlords did not know about it and tenants appeared to buy and sell regardless of it, but now it has come to the point where they have wakened up to the fact that it is the law. A lot of tenants who were young men in 1923 are now old men—some of them may be on the point of dying— so that the position may be that the value of the premises may go back to the landlord without any consideration. I would ask the Minister to reconsider the question that is involved in amendment No. 30 because I think it is an important one. At the time that the amendment was proposed in Committee by Senator Kingsmill Moore, I protested because I thought it would be very harmful and would make this measure much worse than it was under the other Act.
I am disposed to support Senator O'Dea, to a certain extent, as regards this amendment. Paragraph (a) of sub-section (3) of Section 40 read as follows before it was amended in Committee:—
"A statutory tenant shall not as a condition of giving up possession of controlled premises ask or receive the payment of any sum, or any other consideration, by any person other than the landlord."
The principle that is involved there is an old principle. The purpose of it was to do away with what was called "key" money, or the payment of a premium on giving up a house. In other words, a person who was a statutory tenant might be tempted perhaps to take a bribe from a person who wanted his house. The payment of that money was called "key" money. He had perhaps no legal right to it, but he paid the outgoing tenant so much for the key. That was a means of evading the intentions of the Legislature in controlling houses. Now, in Committee an amendment was passed which, to my mind, alters the whole meaning of the paragraph. That paragraph was amended in Committee, and it now reads as follows:—
"A statutory tenant shall not, as a condition of the assignment or giving up possession of controlled premises or any part thereof, ask or receive the payment of any sum, or any other consideration by any person other than the landlord."
I agree with Senator O'Dea that if a person lets a room to a person in his house he is giving up possession. There is nothing to prevent him letting a room in his house. The tenant gives up possession of the room to the subtenant, and while the subtenant is there the new landlord has no right to enter that room. He has given up possession of it. The effect of the amendment, already passed by this House, would be to prevent the tenant from receiving any consideration from letting his room from the person to whom he has let it. It would mean that the only person who could give him any consideration would be the landlord, but he, of course, has no interest in it.
I think the Minister has stated that he has been retreating and I think myself that the Seanad should retreat this time, and that it should go back to the original paragraph which was amended in Committee. I was either not present myself or had not a full appreciation of all the consequences of the passing of that amendment. As I have said, I think the Seanad should revert to the original paragraph. If it does so, then there will not be any necessity for Senator O'Dea's amendment. I would suggest to Senator O'Dea that he should withdraw his amendment, and that on the Report Stage the Minister should introduce an amendment to restore the status quo. I would hope that the House would agree with that. I do not think that any argument could be put forward against that point of view.
Suppose that I were to agree to this extent to delete the words "any part thereof", and leave the portion with regard to assignment stand, would that meet the views of the House?
I think that the word "assignment" is bad.
I can see that there is a point about a tenant setting rooms.
But giving up possession.
"Any part thereof". I do not know—I thought that the word "assignment" improved it.
No, I am afraid it does not. It is the key money that really matters here.
Several points have been made which, perhaps, I might attempt to gather together. First of all, I rather think—speaking subject to correction, of course,—that key money was not money given by an incoming tenant to the occupying tenant, but money given to the landlord as a kind of concealed fine—I may be wrong in that—and that that was the practice which it was aimed at preventing. It is perfectly clear that whatever else is taken out, the word "assignment" must be left in, because otherwise you are again creating a situation in which a tenant who, by the grace of a newly constructed Act—a properly constructed but still a newly constructed Act both in form and structure—is allowed to stay on after his tenancy has ceased, can be allowed, when he has no further interest in the property and does not wish to live in it, to make money by selling to another person the right or privilege, which was conferred on him, of keeping a roof over his head and over the heads of his family. When the tenant no longer needs the premises, he should not be allowed to sell for other purposes a thing which was given to him for a definite, limited purpose. In the 1923 Act, this thing was put in a way which caused a considerable difference of legal opinion. It was not clear there that the acceptance of money for an assignment necessarily involved an offence, and the object of the section was to prevent that happening, because it said that although the landlord might accept money to induce him to surrender, an outside person should not do it. At least, that was the view taken by one school of legal opinion, and it was felt to be in harmony with the principle of the Act. The object here is to ensure that the tenant will not accept money for giving up possession or part with possession of the premises or any part thereof without the consent of the landlord. The reason for that is that a man might give up possession, not for a monetary consideration, but might say: "Yes, I will make that assignment to you; you have a perfectly good deed, but here I am and here I sit until I get £100". There he would be giving up possession apart from making the assignment. So that those two words appear to me to be absolutely essential.
Finally, we come to the question of whether you should introduce the words "or any part thereof", and that has introduced new considerations, which are substantially as follows: Should a statutory tenant be allowed to sublet? Now, first of all, there may be a covenant against subletting, but supposing there is not a covenant against subletting, you get back to the root principle that he is a statutory tenant; that is to say, that he is a man who is given protection in his house in order to provide for his comfort and that of his family, and that it is not given to him as a monetary asset. Why is it that business premises are out of the question? One reason is that you are not trying to protect, in such a case, a person against the ordinary laws of exchange in regard to business premises. That was one reason. Why should a statutory tenant, who has been given a house as a shelter for himself and his family, be allowed, when he has no further use for that house, to make money out of it by subletting it? If he does not want the premises for himself, he should not be allowed to sell or sublet it, and turn what was intended for himself alone into a monetary transaction. That is what was the object of this whole thing, and it is certainly in harmony with the root conception of the Act, but if you take out those words you are allowing the tenant to make a profit out of property which was given to him as a personal privilege to enable him to provide a roof and shelter for himself and family.
I do not wish to press my point of view against that of Senator Kingsmill Moore, but if Senator Kingsmill Moore's ideas are adopted the position will be this: Under a contractual tenancy a tenant may lawfully sublet portion of his premises. Now, he is made a statutory tenant by reason of the termination of his contractual tenancy: say, by a notice to quit on the part of the landlord. Is the tenant then to be in a worse position than he had been before the notice to quit was served as regards subletting? He is not in a worse position, because Section 40—the very section we are discussing at the moment—provides for it in sub-section (1), which says:—
"A statutory tenant shall, so long as he retains possession of controlled premises by virtue of this Act, observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy...."
Therefore, I submit that a person who becomes a statutory tenant is entitled to sublet the premises if, under his original contract of tenancy, he was entitled to sublet them, and accordingly I submit that the words "or any part thereof" would be inconsistent with that right and should be deleted from sub-section (3) (a) of Section 40.
I think that Senator Ryan has for the moment overlooked the doctrine which has been laid down by the courts, that middlemen are not protected. If, for instance, a man has sublet the whole of his house and receives a notice to quit, the Act gives him no protection. Senator Ryan is trying to give the middleman quasi-protection when he has sublet, not the whole of the house, but portion of the house. It is quite clear that in regard to that portion of the house which he himself keeps, he should be protected. It has also been held that where he keeps any portion of the house he cannot necessarily be squeezed out of what he has already done, but I do suggest that that is entirely different from giving him a power, after he has become a statutory tenant, to go on creating himself a middleman, thereby arrogating to himself a profit to which he has no right. If there is any profit to be made out of it, other than the contractual tenancy, such profit belongs to the landlord, because the premises are only for the protection of the tenant and to provide a roof and shelter for himself and his family, and the tenant should not be allowed to make a profit which should more properly belong to the landlord.
You can introduce provisions such as have been properly introduced in these various Bills from 1914 onwards, to meet the position of quasi-monopoly and say that the common law shall not apply and that a tenant may still stick on—because that colloquial expression really expresses the policy of the Act. He may stick on, and his family may stick on, but there is nothing in the Act which says that if there is any profit to be made over and above what was in the contract, that profit shall go into the pocket of the tenant and not into the pocket of the landlord. Therefore, all this subletting of a contractual tenancy, and all the subletting which is protected by the Act, is beside the point, and the thing is, in principle, objectionable.
I am surprised that Senator Kingsmill Moore takes up that line of argument, because he knows perfectly well that if a man was not made a statutory tenant, he would have all the rights of assigning. The Senator says that a landlord can serve a notice to quit. Yes, he can, but since the 1906 Act, the Town Tenants Act, which was only repealed in 1931——
For business premises.
Yes, for business premises, but the Senator seems to draw a distinction between a statutory tenant and a non-statutory tenant. You may have in a town two landlords: one of the landlords never served a notice to increase his rent, and the other did. Is the man who took advantage of the Acts to increase the rent to be placed in a better position than a landlord who did not do such a thing? Are we, by those Acts, going to kill the title of the tenant? That is what we are doing. As I mentioned before, those Acts did not do the tremendous amount of good that they were supposed to have done. They did not keep the tenants in possession. However, the landlords, as a rule, did not endeavour to evict the tenants; in fact, it was most unusual for a landlord to evict. They did take advantage of the Act of 1923 and the other Acts to get an increased rent, and they served these notices to quit, merely for the purpose of getting that increase and not for the purpose of eviction.
As a rule, the landlord never dreamt that such a provision was there, and houses were bought and sold and the question of statutory tenancy never arose. Recently, that question has arisen, and that is where the danger comes in. You had all the common law rights that a tenant had previously being taken from him. You say in effect to the tenant: "Your interest in the house remains only for as long as you live, and if you die without leaving a wife or child, the house goes back to the landlord, and the benefit of all the improvements you have made in the last 40 or 50 years also reverts to the landlord, and you can do nothing about it." Senator Kingsmill Moore asks why should a man sell. A man may not sell, but a man may get too old to conduct his business and he may bring in a son or a nephew and assign the premises to him. He may not ask for any money, but he might at least ask that he should be supported and maintained in that house for the short term of his remaining life, but according to that section, on the very first day that he makes that assignment the assignee may turn him out, turn the key in the lock, and therefore you would be allowing that assignee to commit a fraud on that unfortunate old man and he would have to go into the county home for the rest of his life. Now, it is not the landlord that is the tyrant in this case; it is the Oireachtas that is the tyrant. We have heard a lot of talk from time to time about good and bad landlords. I suggest that with regard to these particular cases they were all good landlords, and that it was a most unusual thing for landlords to evict. It was not the landlords who put that clause into the Act of 1923; they never thought of it. It was the Oireachtas that put in that clause, the object of which was to deprive the tenants of all the benefits they had under the law during all the years since 1833.
I do not know why we should adopt this attitude. A tenant may have a severe landlord. He may be a man who insisted on getting his rights. He was right to get the advantages provided by the Act. But that did not mean that he intended to deprive the tenant of every bit of right he had in the property in question. If we do this, we shall be doing what no landlord ever did. It is we who shall be the tyrants. In the Act of 1923, that sub-section was unfortunate. We are not satisfied with it as it was; we propose to make it worse by putting in the words "or assignment" and "or any part thereof". That is absurd and we should wake up to the fact before this Bill goes through and not do an injustice to a big body of tenants.
It seems to be generally accepted that the principle as regards assignment of the whole premises is right. We are, I think, agreed as to this question of giving key-money. If you apply the argument reductio ad absurdum, and imagine the case of a house of ten apartments in respect of which the tenant becomes entitled to assign portions. There is nothing to prevent him from assigning nine of the apartments, retaining one for his own use. It would appear from Senator O'Dea's argument and from the argument of Senator Ryan, so far as I understood it, that there would be nothing wrong in that. He could assign nine-tenths of the premises but not ten-tenths. That seems to be the principle involved in the amendments here.
Senator O'Dea has made a number of statements to-night and at recent meetings of the House which should be fully examined and answered. An opportunity, I hope, will be afforded for that by deferring the Report Stage of the Bill. It is vitally important that the arguments put forward by Senator O'Dea should be examined right down to the bottom, because they seem to be introducing new principles of equity—principles which I cannot see myself adopting. I am anticipating to some extent what I intended to say on amendment No. 33, but it may be well to remind the House of what happened about 1920. A number of landlords at that time issued notices increasing the rents of their houses. They were paid these increased rents for some time. Then a case was brought to the House of Lords. The Lords decided that those increases were illegal, in spite of the Rent Restriction Acts, because they had not been accompanied by a formal notice to quit. That seems to be forgotten. The 1923 Act provided that such notices should be issued. About 1926 it became obvious that the landlords, as stated several times by Senator O'Dea, were not really anxious to get possession, but only wanted to get the increased rents. So the Act provided that this useless formality of serving notice to quit was not really required; it was implicit in the notice to increase or reduce the rents and that was sufficient. I am afraid that Senator O'Dea has been making a good deal of play with regard to the position that arose from the discontinuance of separate notices to quit. Could a notice served under these Acts be effective? So long as the 1923 Act and the other Acts are operative, what is the use of a landlord serving such a notice? The Acts prevent him from evicting the tenants, and so it is absurd to serve such a notice unless the tenant fails to pay the rent or fails to comply with the conditions of the tenancy. A notice to quit became a very rare event, as it was perfectly useless in a normal case.
We hear a good deal about evictions. The day of evictions is long past. It is very seldom that landlords or owners will indulge in evictions unless there is grave reason for doing so. The landlords will not playfully evict tenants. Senator O'Dea regretted that the Rent Restrictions Act took away certain rights from tenants. He virtually denied that they conferred any benefits on the tenants. He asserted that they conferred benefits on the landlords. But the primary purpose of the original Rent Restrictions Act was to restrain the landlord from getting his full pound of flesh—from getting what would normally be regarded as an economic rent. To that extent, the landlord was penalised and, to the same extent, the tenant was benefited. Yet, according to Senator O'Dea, no benefit was conferred on the tenant. In asserting that certain rights were taken from the tenant, Senator O'Dea overlooks the fact that a large number of tenants held under written agreements which prevented them from subletting. Subletting was possible only where verbal agreements governed the tenancies. I have said more than I intended to say, but what I have said will shorten my remarks on my amendment. I am afraid we shall have to watch Senator O'Dea very carefully. He is introducing new ideas of equity. When I was examining his remarks I began to think of that old saying "To Hell or Connacht". I was very sorry that Cromwell did not build a wall around Connacht and keep Senators from coming up this way and spreading false doctrines.
Senator O'Dea is a Munster man.
He has been a long time in Connacht. I should like to intervene on a point of law which I think has been misstated by Senator O'Dea and Senator O'Reilly. Reference has been made to the 1926 Act and the provisions which rendered unnecessary the service of a notice to quit. I have the Act before me. Section 8, sub-section (1), provides that where a statutory notice has, before the 24th June, 1923, been served on a tenant under the Act of 1920 or has, before or after the passing of this Act, been served on a tenant under the Principal Act and a notice to terminate the tenancy was necessary in order to make such statutory notice effective but no notice to quit was, in fact, served, "such statutory notice shall have effect and be deemed always to have had effect as if it were and had been always a notice to quit expiring on the day immediately preceding the date from which the increase of rent is or was by virtue of such statutory notice to take effect. The effect of that was that the notice to increase the rent was deemed to be a notice to quit, with all the incidents and implications of a notice to quit. It became a notice to quit. The tenant could treat it as a notice to quit. He could say: "You have served a notice to quit on me and I claim the benefit of the Town Tenants Act", or any other Act. Arguments have been adduced in this House to show that, where you serve a notice increasing the rent, the tenant was deprived of the rights he would have got if you had served a notice to quit. The section I have read says that that notice was deemed to be a notice to quit. If it was deemed to be a notice to quit, surely the tenant could assert the same rights under it as if it were a notice to quit.
That is, a notice to quit served after the Landlord and Tenant Act, 1931, came into force?
No. I am quoting from the Act of 1926.
The Act of 1931 provides that you can come under it if within one month of the receipt of the notice to quit you apply to come under it or if your lease has expired. There is no other provision by which you can come within the Act. Unless a notice to quit was served, after the date that Act came into force, the tenant could not get the benefit of the Act.
The notice to increase the rent is deemed to be a notice to quit for all purposes.
I suggest to the Minister that I leave out the words in my amendment from the word "unless" to the end of the sub-section. I would then propose to delete the words "or assignment" and "or any part thereof".
I think that I met the Senator fairly well in respect of business premises. If I were to bring in an amendment on Report deleting the words "or any part thereof" but leaving in the question of assignment, I think he would be fairly met. I am satisfied that the tenant had a right to sublet if it was in his original contractual tenancy. I am satisfied that Senator Ryan was right in that regard but it is difficult for a layman to decide between two lawyers. My advisers, however, tell me that my view is right. I am willing to bring in an amendment on the lines I have mentioned.
Will the Minister consider the whole matter and I shall withdraw the amendment?
I shall agree to do as I have indicated.
Amendment, by leave, withdrawn.
I think I have dealt with amendment No. 31.
I would like to refer to sub-section (4) of Section 40.
An Leas-Chathaoirleach
Amendment No. 31 is a Government amendment.
Amendment No. 31 is accepted.
Amendment No. 31 put and agreed to.
An Leas-Chathaoirleach
Amendment No. 32 is not being moved. We pass on to amendments Nos. 33 and 34 which can be taken together.
Perhaps I could shorten the debate on this if I say what I am prepared to do. Amendment No. 34 would be acceptable to me. I would agree to delete the words "shall not be unreasonably withheld" and to substitute the words suggested by Senator Sweetman "may be withheld only if greater hardship would, owing to the special circumstances of the case, be caused by granting the consent than by withholding it."
I would ask the Minister not to accept that.
It has not been moved.
It would be dead against the Act of 1931.
I move amendment No. 33:—
In page 22, Section 40, sub-section (4), paragraph (b), line 43, to delete the words "which consent shall not be unreasonably withheld".
To put the matter in order, may I say that Senator Sweetman asked me to move amendment No. 34 for him and I ask leave to move it on his behalf:—
In page 22, Section 40 (4), paragraph (b), line 43, to delete the words "shall not be unreasonably withheld" and insert in lieu thereof the words "may be withheld only if greater hardship would, owing to the special circumstances of the case, be caused by granting the consent than by withholding it;"
I think we were dealing with amendment No. 33.
An Leas-Chathaoirleach
The House is taking amendments Nos. 33 and 34 together. The Minister has accepted amendment No. 34. If the House is not satisfied with that, we can go back to amendment No. 33.
I think the Minister is prepared to accept amendment No. 34 but I just want to put a point of view. I am rather puzzled to know exactly what type of case Senator O'Dea had in view when he objected to this amendment on the Committee Stage and I spent a considerable amount of time on the subject. I read and re-read Senator O'Dea's remarks. I was rather puzzled by some of them but eventually, a certain amount of light appeared to dawn, and even though I said so much about the Connacht side of the country, I began to see that there was a certain amount of justice in the argument and the case made by Senator O'Dea, but we have to examine to what extent justice is involved and to what extent injustices would arise if we accepted the Senator's proposal.
I went to considerable trouble last night in classifying tenancies, and I arrived at the conclusion that there might be anything up to 50 different classes, according to the minuteness of the criteria used for classification. For example, you have the class of tenant that might be occupying a private dwelling, and you have other classes of tenant occupying houses used wholly or in part for business. Having got these two main divisions you may begin to arrange the classes.
First, you have the class where there are no statutory tenancies. Such a tenant has never been served with a notice to quit, and not having been served with notice to quit, and the rent he pays not being greater than that allowed by the Act, he remains the type of tenant so much preferred by Senator O'Dea. Let us call him an ordinary tenant. You could go on grading and classifying them, and you could arrive at about 50 sub-classes. If you make a rule which applies indiscriminately to all the classes, you are going to inflict injustices on some, and if the Minister had issued a little diagram, indicating the classes and sub-classes, it would enable members of the Seanad to understand what may happen in the event of certain principles being adopted here.
I will give you a few from my own experience. The case I think Senator O'Dea had largely in view is illustrated by one example. This was a case of a statutory tenant who spent a considerable sum of money on improvements to a private dwelling. That statutory tenant wanted to leave the dwelling. He had purchased property elsewhere and he found that under these particular circumstances he could not, even under the Landlord and Tenant Act of 1931, get any compensation for improvements, because, as you know, the Landlord and Tenant Act of 1931 does not give compensation for improvements where the tenant is voluntarily leaving the premises or where he wishes to leave himself. You have similar conditions in the case of the statutory tenant. If he wishes to get compensation for the money spent by him he cannot do so unless with the goodwill of the landlord.
If the landlord evicted him, he possibly could do something about it, but as things are, he could not do so. As far as that particular type of case is concerned, there is a lot to be said in favour of Senator O'Dea's view. Take the other case, where the tenant has no interest, good, bad or indifferent in the premises. He has paid his rent. He has not spent any money on improvements. There is no question of goodwill attached, and there is no conceivable reason why he should be allowed, on surrendering the tenancy of his own free will, to nominate the tenant who will come in after. There is no reason why he should do so. We have to distinguish between the two types of cases and I was turning over in my mind what way it could be met.
I want to suggest to the Minister a plan which I explained to Senator O'Dea, that if we could qualify this, we would make it much more equitable. If we had these words, we could meet all the difficulties visualised by Senator O'Dea. It would also anticipate the evils which are expected to follow when it becomes known that statutory tenants cannot sell their interests. Apparently, there have been a lot of illegalities none of us knew anything about, but I suppose nothing evil will result. Here are the words I suggest should be added: "That where a tenant submits satisfactory evidence that he is entitled to compensation in respect of expenditure on improvements carried out by him with the consent of the landlord or in respect of adherent goodwill created by him if the court is satisfied he has offered to surrender his claim to such rights——"
An Leas-Chathaoirleach
You are not dealing with the present amendment, Senator.
I suggest that if these words were added to the amendment it would improve it.
An Leas-Chathaoirleach
We are dealing now with Nos. 33 and 34.
I think the Minister will agree that there is something in this. I feel it is very important.
It is a pity if it is so important that it was not submitted in the proper time. There were three weeks to submit amendments.
As the Minister will admit, this is probably the most difficult Bill we have had before us for some time. It is most complicated— the Minister admits so himself. The ordinary Senator, unless he is an expert draftsman and has nothing else to do, is not able to grasp all the sidelights of it.
But there will be no finality if this goes on.
An Leas-Chathaoirleach
This amendment deals only with the withholding of consent.
If you allow me a moment I will explain. The words I have suggested can be included with the provision that consent shall not be unreasonably withheld. I suggest that if they are put in before the words "such consent shall not be unreasonably withheld", these words can stand, and all the difficulties seen by other Senators and by the Minister will disappear. I suggest that this be considered by the Minister between this and the Report Stage, so that a further adjustment of this thorny question may be made. I have discussed this with several of the legal Senators present and they agreed it would be a very good solution of our difficulties. With these words added, a person holding a tenancy would be nearly in as good a position as a person holding under the 1931 Act. In connection with that Act, so many references have been made to it that we seem to forget that if it is a question of compensation for improvements, you cannot get that compensation in cash if you are leaving the premises voluntarily.
That is a thing which appears to be overlooked. Senator O'Dea has frequently referred to fabulous sums people might get by further restrictions in those Acts. Does the Senator realise what a dangerous thing he is saying? Fancy premises being worth £10,000 for goodwill and the Government feeling it is necessary to protect these poor unfortunate people! If there is a goodwill of that value, it proves that a fabulously successful business has been carried on in that place, and it is really a disgrace to the unfortunate people——
An Leas-Chathaoirleach
I am afraid the Senator is getting away from the particular amendment.
I suggest that we should deal with the amendment properly and fully. I have quite a number of notes made and I would like to deal with all the remarks made by Senator O'Dea, not only in this session but in previous sessions. Senator Hearne quoted the case of the confectionery business, but did not give any particulars about it. I hope the Minister will entertain favourably the suggestion that if these words are added it will be an advantage to read them in conjunction with the provision that "which consent shall not be unreasonably withheld". If the Minister would say he would consider it between now and the Report Stage, I would be prepared to withdraw this amendment to enable him to do it.
An Leas-Chathaoirleach
Is the amendment being withdrawn?
Is the Minister prepared to consider it now?
I do not see how I can. It has been read out to me only now and it would be unreasonable to expect me to consider at this stage something I have not heard of before. I have considered the two amendments which have been tabled, and I think the wording of amendment No. 34 is more satisfactory, and more in the spirit of what is in the Bill. I would be inclined to accept that. The wording is more consistent with the general wording of the Bill and I think it is more definite. We all know that the word "reasonable" is a very difficult and litigious word. It depends on the view the particular person takes of it. The same thing applies to "hardship". The amendment proposes to insert the words:—
"may be withheld only if greater hardship would, owing to the special circumstances of the case, be caused by granting the consent than by withholding it".
I think that, on the whole, it is better than the present wording, and that it ought to meet Senator O'Reilly. I have considered it as well as the other amendment, but the other amendment was sprung on me.
The amendment which the Minister moved, excluding business premises, moves in the same direction, and what Senator Sweetman contemplates is also in the same direction. The Minister, I understand, is prepared to delete the words "such consent shall not be unreasonable". These are very dangerous words. Since the Minister has promised to consider favourably Senator Sweetman's amendment, and since it is more or less in the same direction, I suppose there is a degree of safety there. I think that if the Minister would consider the other wording, which has been suggested, it might be better still.
I understand that the Minister is prepared to accept this amendment as it stands. I think he is right in doing so. I moved it on behalf of Senator Sweetman though I did not collaborate with him in preparing it. My own opinion is that it gets over a certain difficulty and is consistent with the idea underlying the Rent Restrictions Act which is to avoid hardship. I am not experienced enough to know how it will work out.
There is a part of my suggested amendment that would be in harmony with paragraph (a) of sub-section (3) which says that a statutory tenant shall not "ask or receive the payment of any sum, or any other consideration, by any person other than the landlord." My suggestion here is in perfect harmony with that. The landlord will be given first preference in the case of assignment, and that would be in harmony with paragraph (a) of sub-section (3) of Section 40.
Amendment No. 33, by leave, withdrawn.
Amendment No. 34 agreed to.
Government amendment No. 35:—
In page 22, Section 40, to insert at the end of the section a new sub-section as follows:—
(5) Where, on or after the operative date, controlled premises are lawfully assigned by the statutory tenant, then, in the absence of any express agreement between the landlord and the assignee, the following provisions shall have effect:—
(a) in case the premises are, at the date of the assignment, being lawfully used wholly or in part for the purpose of any business, trade or profession, the assignee shall, from the date of the assignment, be deemed to hold the premises from the landlord under a tenancy from year to year, terminable, on or after the expiration of the first year thereof, by either party by three months' notice expiring on any gale day and, subject thereto, on the same terms and conditions as the said statutory tenant;
(b) in any other case, the assignee shall be entitled to retain possession of the premises on the same terms and conditions as the said statutory tenant.
Since I put down this amendment I have been considering the matter with which it deals, and I am afraid that a further amendment will be necessary. I ask the leave of the House to withdraw the amendment and bring it in again on Report.
Amendment, by leave, withdrawn.
Amendment to amendment No. 35 not moved.
Government amendment No. 36:—
In page 25, Section 51, sub-section (1), line 8, to delete the word "pecuniary" and insert in lieu thereof the word "valuable".
It has been pointed out to me that something other than money might be offered, and that "valuable" is a better word to use than pecuniary.
Amendment agreed to.
Government amendment No. 37:—
In page 26, Section 54, to add at the end of the section a new sub-section as follows:—
(4) Every regulation made by the Minister under sub-section (1) of this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by either House of the Oireachtas within the next subsequent 21 days on which that House has sat after the regulation is laid before it annulling the regulation, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the regulation.
Amendment agreed to.
Bill, as amended on Recommittal, reported.
An Leas-Chathaoirleach
When is it proposed to take the Report Stage?
I suppose the Seanad would like to take the Report Stage within the time allowed, that is the 90 days referred to by Senator Douglas. Perhaps the House would agree to take it to-morrow. The 90 days will have run out by Tuesday next.
I think that we ought to see prints of the amendments before the Report Stage is taken. Thirty amendments have been inserted in the Bill, six in Committee and 24 to-day. In view of that, I suggest that we ought not to take the next stage of the Bill before this day week.
The amendments for the Fourth Stage will be printed and will be circulated with the Order Paper to Senators in the morning.
An Leas-Chathaoirleach
There is a possibility that the House will have no other business to do except this Bill next week.
There is one matter that I want to raise. In all previous legislation of this kind certain forms were attached. The notice which a landlord serves on a tenant is affixed to the Emergency Powers Act and to the Act of 1923. The provision in previous Acts dealing with these forms is, I observe, omitted from this Bill. It seems to me that that is a principle which we should not adopt. It has been the practice to have these forms included in the Acts passed by the Oireachtas. If that is not done in this case we shall have no knowledge of the kind of forms which will be used.
Provision in respect of the forms will be made under the regulations which, under the last amendment passed, are to be tabled, so that Senators will have an opportunity of discussing them in due course.
Can we be told why the forms are not set out in the Bill?
The practice now is to do it this way: to make the regulations and table them.
That is a practice which I will seriously object to.
I take it that if the Report Stage is taken to-morrow Senator Duffy will be entitled to hand in an amendment in regard to these forms? As far as I am concerned I have a certain amount of difficulty. I do not think it would prevent the Dáil discussing the amendments if we kept the Bill a week late. On general principles, I am not in favour of exceeding the 90 days if it can be avoided. I would be prepared to take the Report Stage to-morrow unless there are some members of the House who intend to introduce new matter, and now find that they cannot produce it to-morrow.
I suggest that we take the Report Stage to-morrow.
I would like to see the Report Stage adjourned for a week. I think Senator Ryan suggested that he would move some amendments. I do not see how the amendments can be circulated to-morrow. If they are circulated they can reach only a very small number of Senators.
An Leas-Chathaoirleach
The amendments will be circulated with the Order Paper in the morning.
We should remember that all the members of the House do not reside in Dublin. I think that we should adjourn the Report Stage for a week. There is plenty of work for to-morrow with the Children's Allowances Bill and the Harbours Bill.
Question—"That the Report Stage of the Bill be taken to-morrow"—put and agreed to.