This is purely a drafting amendment to clarify that "used for the purposes of business" means "used wholly or in part for the purposes of business'.
Landlord and Tenant (Ground Rents) Bill, 1965: Committee Stage.
Section 1 agreed to.
SECTION 2.
Government amendment No. 1:
In subsection (1), line 31, after "public service" to insert "and ‘used for the purposes of business' means used wholly or in part for the purposes of business"
This is a matter I was somewhat concerned about in section 3. Do we take it as being quite clear that if a house is used in part as a dwelling, and partly for business purposes, if it otherwise qualifies, it is within the terms of the Bill?
That is right. It is designed to make that clear.
Is the Minister satisfied that if you had, say, a doctor using part of a building as a dispensary— that is, perhaps, using it for professional purposes—the word "business" is sufficient to cover that kind of situation? We are saying in this amendment that "used for the purposes of business" means "used wholly or in part for the purposes of business". I am wondering whether "used for the purposes of business" covers "used for professional purposes". I am wondering whether that is within the terms of the definition.
The purpose of the amendment is to clarify that that category is in. In the Commission's original recommendation it was confined purely to residential premises. We have already brought business premises within the Bill to obviate that type of argument which would be used in the case postulated by Senator O'Quigley. As the Bill stands, it covers all types of premises: business premises, business premises cum private residences, and private residences. Under the Bill there is complete cover for all types of premises.
What I am concerned about is that we are saying that "business" means any trade, profession or business.
"Business" is defined in section 2.
Then we go on to define a premises which is used wholly or in part for business. What I am concerned about is that when you define the "business premises" as a premises that is used wholly or in part for the purposes of business you might be excluding premises used in part only for professional purposes. I think the Minister will agree that if we define one term and do not define another, the courts may interpret it that the term was defined to include exactly what it said, and because the other term was not defined the courts might say that a distinction was drawn by the Legislature between the two.
I shall have a look at it. Under the Bill the word "business" means any trade or profession or business whether carried on for gain or reward or not, and the public service. I see what the Senator means in the case of a solicitor's office or a dispensary residence. It is a matter which is worth looking into to see whether we need the amendment at all.
I am sure the amendment is designed to be helpful but it might torpedo the whole intention.
I shall have a look at it between now and Report Stage.
Amendment agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."
I see the words "the public service" in this section. Can the Minister give any indication as to what "public service" is intended to include? For instance, Government offices are in the public service and local authorities are in the public service. Are the ESB in the public service?
Their offices are in, one way or the other.
I am wondering is a company which is formed and guaranteed under the State Guarantees Act——
Any office premises which is carrying out business whether it is Government work or non-Government work is in.
We have been talking about the Arts Council.
The idea is to copperfasten it so as to ensure that public service offices and businesses come under this.
Question put and agreed to.
SECTION 3.
The Chair suggests that amendments Nos. 2, 3 and 11 should be taken together with separate decisions, if necessary.
I move amendment No. 2:
In subsection (1), line 21, to delete "as respects" and substitute "with respect to".
The point of each of these amendments is exactly the same and anything I say about this amendment applies to the other two. This is merely a verbal amendment because it sounds strange to my ear to use this phrase "as respects". The subsection reads:
A person who, as respects any land, is a person to whom this section applies, shall, subject to the provisions of this Act, have the right as incident to his existing interest in the land to enlarge that interest into a fee simple, and for that purpose to acquire by purchase the fee simple in the land and any intermediate interests therein.
This turn of phrase "as respects" does not seem to be quite right. I think it is a kind of hybrid deriving from "as regards" and that it is intended to mean "with respect to". The Oxford Dictionary does not recognise "as respects". It does recognise "as regards". Mr. H. Fowler in his Modern English Usage does not recognise “as respects”, and does not think very much of “with respect to” which I am suggesting in the amendment. He recommends that it should be used as rarely as possible. The alternatives he suggests are “about” or “for” and they would not really apply here. I notice that in section 5 (3) and in section 8 (3) the phrase “in respect of” is used. The phrase which seems acceptable to me in sections 9 and 13 is “in relation to”. Here it would seem on balance that the most satisfactory expression would be “with respect to”. I do not think that even in legal jargon “as respects any land” would bear examination and, therefore, I propose that in these three cases we change “as respects” to “with respect to”.
The Senator is having respect for the English language.
I shall hide behind Senator O'Quigley who used the phrase in his amendment.
I merely had respect for the Parliamentary Draftsman.
This phrase is used here and in Britain. In the British 1965 Superannuation (Amendment) Act there is the phrase: "This Section shall have effect as respects termination of employment," instead of "with respect to." So I shall hide behind the Parliamentary draftsmen both here and in London.
I submit with respect that we should continue our proud boast that we speak better English here than they do in London. It seems to me that "with respect to" is better than "as respects any land."
Is the amendment withdrawn?
No. I feel that we must stand up for our right to mould and wield the English language to the best possible effect.
I shall have a word with the draftsman between now and the Report Stage and put it up to him strongly, because I am a great believer in the grammar of the English language as well.
In that case I shall withdraw the amendment, reserving the right to re-introduce it on the Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
I move amendment No. 4:
In subsection (2) (a), lines 29 and 30, to delete "whether" and "or after".
Will you take Nos. 5 and 6 with it?
The Chair would suggest that amendments Nos. 4, 5, 45, 46 and 48 be taken together.
They are all on the same line of country.
As I said on the Second Stage, it seems to be futile for this House to spend its time providing that a lessee shall be entitled to acquire the fee simple of property and then to continue unabated the evil which we are seeking to remove in this section. All kinds of excuses can be thought up for doing nothing. The simplest thing in the world is to do nothing. It is very easy for people to find excuses as to why nothing ought to be done. It is traditional in a certain branch of one of our great institutions to find reasons as to why things cannot be done. We all know that if you impose restrictions on the creation of ground rents you may, if you do not take corrective action, cause the price of land available for house building to increase. But that is not an excuse for the gross exploitation of young married couples by the present owners of land and some house-builders. Settling down in life is a sufficiently difficult matter nowadays without having to pay exorbitant prices for land.
We know that this is a problem in this country, and it is a problem rendered acute by the failure of the Department of Local Government and of certain local authorities to provide the main sewerage and drainage necessary for certain areas around our towns. Money has not been made available for that kind of work, and consequently the work of developing the land may sometimes be a great deal more expensive than it ought to be and land in some areas is just not available for house building, or if it is within the ambit of existing sewerage schemes it is at a premium. These are all problems that must be faced. Simply burying one's head in the sand will not solve them.
The same problem of land and the price of land for house building has arisen in England, and we know of the corrective action taken over there by the present English Government. It is a remarkable thing in 1966 to see that an English Government is establishing an institution analogous to our venerable institution, the Land Commission, and known by the title of the Land Commission, in order to deal with the gross exploitation of people who require houses by the owners of land and building sites.
In my view one of the most essential things is houses for people to live in. We have price stabilisation orders dealing with the price of bread, meat and other commodities, and orders dealing with a variety of hardware and ironmongery and other commodities, but there is no price stabilisation order in respect of a commodity, which is absolutely essential to the wellbeing of a great many people in the community; there is nothing in relation to the price of land.
I can think of a simple means of regulating the price of land. It cannot be said that there are not adequate powers in the Housing Acts for the compulsory acquisition of land by local authorities so that in certain cases local authorities having acquired land and developed it are in a position to sell it to persons seeking to build houses. In these circumstances it seems that where land can be sold subject to a price to be fixed under the Acquisition of Land (Compensation) Act, 1919, the price need not necessarily be an exorbitant, inflated current market price. I do not think that the people who own the land of Ireland in and around our towns and cities ought to be entitled to exploit the needs of those who require to build houses on it.
I can think of another method of making land available for people who wish to be housed at a reasonable price, by taking the rateable valuation of land, which remains constant since the Valuation Acts came into operation, and multiplying the valuation by whatever might be considered a reasonable multiplier. Agricultural land in the region of our towns generally has a valuation of between 10/- and £1 an acre. If one were to say that the current price for agricultural land was £200, £250 or £300 an acre depending upon the area, there is no reason why you should not multiply the rateable valuation and fix the price of land for housing as being 600 times the valuation, which would give a figure of £300 an acre in the case of land valued at 10/-an acre or by 300 for land valued at £1 an acre which would give a price of £300 an acre.
It seems to be a futile exercise on our part to deplore the creation of ground rents and at the same time permit under this Bill the future creation of ground rents. It is a nonsensical exercise. For that reason I put down amendments Nos. 4 and 5 to exclude the creation of building leases after the commencement of this Bill, and the more specific amendment No. 46 to provide that after the passing of this Bill it shall not be lawful in any lease of land for the purpose of building thereon to reserve a rent or other periodic payment, and to invalidate any such reservation on land by the lease. I think that there is an unanswerable case against the continuation of these ground rents, and the only reason why they are being continued is the failure of the Minister and his colleagues in the Government to face up to the fact that, difficult though it may be to control ground rents, it is absolutely essential that this should be done if the members of the public who must buy land for the purpose of building are not to continue to be exploited in the way they have been up to the present, more particularly in the last ten or 15 years.
I went through this matter very fully on the Second Stage in the course of my reply. Let me say at the outset that initially I was very struck with the idea of prohibiting absolutely the creation of future ground rents. However, when I teased out the situation very fully I could see, as well as my colleagues, that the immediate effect of prohibiting future ground rents would be to put up the cost of building houses as far as the builders were concerned and thereby put up the initial cost of houses as far as intending purchasers were concerned. I have no intention of inserting in a Bill here a section which would mean an immediate increase in the price of houses and an immediate increase in the capital which young married couples who are purchasing houses must find. This is the reality of the situation.
There is much merit in what Senator O'Quigley says in regard to controlling the price of development land. This is something which could be investigated. There is a number of obvious snags in that as well. However, this is something entirely outside the scope of this Bill. One would want to bring in a very comprehensive measure to deal with land development and the price of land adjacent to urban areas to cover this matter. I suggest that it is outside the scope of this Bill which is mainly concerned with the buying out of ground rents. There is much in what Senator O'Quigley said but it is a matter which would require very close investigation.
As I have already said, the immediate effect of doing what the Senator suggests would be to put up the price of houses as far as young married couples are concerned. I was very attracted to the idea of prohibiting the creation of future ground rents but after investigation, I changed my mind. I do not accept that the Bill is not going far enough. It represents a considerable advance on a Bill being introduced by the British Government on the subject at present. There is another aspect as far as young married couples are concerned. Those are the people about whom the Senator should be concerned. I do not think that the provisions of this Bill will be of any great interest to them immediately. They will be interested in buying out their ground rents after a number of years when they have sufficient funds accumulated. At the very start they will, naturally enough, be stuck for money and their main interest will be to keep the initial cost of the house down as low as possible. For this reason they will not be very interested to exercise their right in regard to purchasing the ground rent.
Another practical consideration is this. I think I said this on the Second Stage. If the Bill as it now stands becomes law those who were previously interested in investing money in ground rents will get out of that type of investment. Already the trend has set in. People who have traditionally invested in ground rents are getting out of them very rapidly. When this Bill becomes law, it will mean the virtual abolition of investment in ground rents because it will become unattractive. Ground rents will then gradually disappear. The aim of insurance companies and trustee companies, who are the people who used to buy ground rents, is to have a secure long term form of investment. This disappears when the tenant can buy out at any stage, and I think that for that reason this Bill will lead to the disappearance of ground rents.
The final point which persuaded me against the absolute prohibition of ground rents is that it might be unconstitutional. The right of everyone to dispose of his property as he wishes is enshrined in the Constitution. If you remove the absolute right of a person to dispose of his property as he wishes you may be interfering with the rights of property owners. This could be questioned in the courts. I do not want to have anything introduced into this Bill which could allow it to be torpedoed in that way. There are, therefore, three practical considerations and one Constitutional consideration which made me change my view and made me stick to the idea that what we have here, a flexible system whereby people have the right to purchase their ground rents, is better in the long run, particularly when I am certain that this scheme will lead to the virtual abolition of ground rents over a period of time.
I am somewhat amused to hear the Minister relying on the Constitution. I do not think the Minister or his Party have any respect whatever for constitutional rights. I shall have more to say about that tomorrow. I do not believe for a moment that the Minister considered this as even a straw in the balance in deciding this business. It sounds very well for the Minister for Justice to say that he is concerned about constitutionality in relation to ground rents.
I am.
Look at the position which has obtained in this country since 1922. What was Hogan's Rent Act of 1923 intended to do? It compulsorily compelled landlords to sell their land to the Land Commission. They ceased to get any rents for their land.
There was no maximum price as we have in the Bill.
The price was afterwards fixed by the Land Commission subject to an appeal to the Appeals Tribunal. That does not create any difficulties. If the Minister is right in what he says, then the flour millers have a very good case against the stabilising of the price of wheat and wheat offal by any order which was made.
Sin ceist eile.
Sea, sin ceist eile.
Is fearr gan é sin a phlé.
If the Minister is right then all the Land Acts are wrong and all the price stabilisation orders which have been made are unconstitutional. If the Minister thinks for a moment that the Supreme Court on the basis of any previous decisions will hold that this is unconstitutional they can then go the further distance and say that the fixing of maximum prices for bread and flour are matters which are also unconstitutional. I do not for a moment think that the Minister considered whether this matter of the ground rents was unconstitutional or not. Mark you, the Minister, who is very concerned about the Constitution, should have regard to the fact that in September, 1939, this House and the Dáil passed a law suspending the Constitution for the duration of the emergency. The Constitution still remains suspended as a result of that and the Emergency has not concluded despite the fact that it is more than 20 years after the end of the Second World War.
There is still an Emergency on for Fine Gael.
I did not hear what Senator Dolan said. It is no wonder the Chair sometimes says it does not hear certain things.
He is in a good post-Kerry mood.
To come back to the Minister's argument on this, he says that if we prohibit the creation of ground rents that will increase the cost of housing. He goes on to say that young married people will not be concerned with buying out their ground rents. Of course, young married people would not be at all concerned with buying out their ground rents if such rents were not permitted to be created. That does not answer the question at all. What I want first of all to provide is that a young married couple will not unnecessarily have to pay £14 or £15 per annum to a ground landlord for no reason whatever other than that the ground landlord has the land and is able to enforce his will over a defenceless couple. This has been going on for years and it is something we are remedying in this Bill to some extent retrospectively. It is something that every Member of this House, excepting Senator E. Ryan, regrets. We all regret the creation of ground rents with the exception of Senator E. Ryan who has some grave and serious misgivings about it. That is what we want to prevent. It seems to me to be wrong to provide we are going to entitle people to buy out their ground rents and at the same time allow these rents to be created in the future. It is the most unnecessary exercise that this House has ever engaged in. The Minister's next argument is that the immediate effect of preventing the creation of ground rents will be to increase the price of land.
The price of houses.
The price of land and, therefore, the price of houses. Of course, it is outside the scope of this Bill as read a Second Time to deal with the price of land but it is equally true that the Minister and other members of the Government have collective responsibility for the production of this Bill for consideration by the Oireachtas. It was not outside the competence of the Minister for Justice to point out to the Minister for Local Government that it was desirable that the price of land should be controlled. Concurrently with this Bill or immediately afterwards we could consider a Bill dealing with the price of land. I believe that the price of land can be stabilised at a fair and reasonable level by reference to a multiplier. I would give the Minister power to provide for different multipliers for land in different areas. That having been done, one would get some stability in the price of houses that young married couples or anybody else, even old married couples who have been living in a house provided for them during their employment, would be buying.
To my mind there is no reason why this gross exploitation of people buying houses should be permitted to continue. When I say gross exploitation I mean just that. The evidence of that is to be found in the fact that Dublin Corporation and other local bodies such as Dublin County Council and the building societies no longer advance money on the basis of the price of the house paid by the person seeking the loan. They always value the house property at their own valuation and there is nearly always a considerable gap between what Dublin Corporation or Dublin County Council or the various building and insurance societies value the house at and the price charged to the customer. That difference represents the excess charged by the builder for the house over and above a fair and reasonable price.
Ground rents in the city of Dublin would be a great deal higher but for the fact that the Small Dwellings Acquisition Act section of the County Council would not grant loans for houses where the ground rent was higher than £14 or £15 for a certain size of site. That is the scandal which the Minister and the Government are permitting to continue. The Minister is prepared to sit back and say: "Let it be, because to remedy it would mean bringing in something that is outside the scope of this Bill." The Minister, if he wanted to remedy the evil which should never have been permitted for so long, could have asked the Minister for Local Government to bring in a Bill or indeed a provision to deal with the control of land prices for house purchase could have been brought within the scope of this Bill. The evidence is there before the Minister and before the Government and we are going to allow that to continue. I do not for a moment accept that by abolishing ground rents you are necessarily going to increase the price of houses: the Minister himself supplies the argument against that when he says that ground rents are on the wane as an investment. If they are on the wane as an investment there is no incentive to create them.
I said "the immediate effect."
That can be dealt with by ad hoc legislation, if necessary. If they are on the wane, then that strengthens the argument that we ought to prohibit them because if they are going to wither away with the passing of time because they cease to be a good investment for those who have surplus capital, then you are not doing any injury constitutionally, financially or otherwise, to the people who would be disposed to create ground rents.
If the Minister thought it was unconstitutional to fix a maximum price, then it is very easy to get rid of that provision in the Bill. It is quite easy for a few cases to be decided as to what is the factor that is to be used for determining the amount of multiplier to be used in determining the price of ground. People would soon grasp the precedents provided by a few test cases. There is no argument whatever for leaving the Bill as it stands except the argument that there is a problem there that requires to be solved and that a lethargy has overtaken the Minister or perhaps he is fatigued after the recent by-election campaigns. We see Ministers spending their time looking at gravel pits and the like instead of attending to their work; yesterday the Minister for Local Government presented a prize to somebody out in Stillorgan. When Ministers are busily engaged at these important functions they cannot get down to solving the problem of what ought to be an equitable price for land. Such a problem could be solved by a few days' consideration—a little more time spent by Ministers in their offices is all that is needed. If we had that we would have the solution to a scandal which has been going on for too long and which we are going to allow to continue in the future.
I confess I was puzzled also by the Minister's contention that if he were to accept these amendments it might be deemed unconstitutional. I think he said that the ground rent, as it were, was, in fact, the property of the ground landlord and that consequently it might be considered unconstitutional for the ground landlord "to be prevented from doing what he liked with it," as was I think the phrase he used. Of course, there are all kinds of laws to prevent people from doing certain things with their own property. This very Bill is for the purpose of forcing him to sell this commodity about which the Minister claims he has a right to do what he likes so I am afraid this objection falls to the ground.
I must say I listened to Senator O'Quigley with much interest but I fail to appreciate his point. The real expense in a building site is not so much the ground itself as the development of the ground. Many local authorities take over land, not for building houses for the working classes, but to enable people living within the urban authority area to acquire sites. The urban authority, say, take over five or ten acres of land; they develop it, put in roads, sewers, lay on lights and, when all that is done, work out the cost to themselves. My experience of local authorities and of the people in the urban areas is that the people then prefer simply to pay for the cost of building their house—the contract, the bargain they make with the contractor—the local authority give them the site at a certain percentage of the capital cost per house, the local authority themselves having borrowed the money through the Local Loans Fund, at a rate which is usually one-quarter per cent or one-half per cent over and above what the local authority paid for it.
If Senator O'Quigley's amendments were to be accepted, all that, in the future, would be invalid. Then people who would wish to build houses or wish to acquire those houses would, in the future, have to find considerably more capital than they have to find at present. Therefore, from that point of view and also from the point of view of builders themselves, it would be disadvantageous. Senator O'Quigley says that if you fix the price of land, if you fix the price at which he can sell it, then everything is fine, but, at the moment, the people in most need of houses are the working classes. These people have the right to acquire sites, to go to arbitration to have the price fixed and get their own house. If people wish to build very expensive houses, or wish to have these housing sites, it is up to them to pay for the particular site they want, buy it in fee simple or under a ground rent but there is no injustice ultimately done because there are other considerations, the site being really the smallest cost of the entire house.
If you want, as Senator O'Quigley wants, to let everybody have cheap houses, then you must have a definite price fixed which you can charge for a house, on so many cubic feet. If you follow it to its logical conclusion, you must also fix, on the basis of the poor law valuation or otherwise, the prices of houses which are now occupied and are up for sale, because many young married people are buying houses which are on the market for sale, not necessarily new houses. No injustice is done because at any stage, young folk having built a new house and finding themselves in a better position afterwards, can, under the terms of this Bill, then buy out the ground rent, at what would be a reasonable multiplication of the ground rent.
I want to get a few things quite clear. I do not follow Senator Nash's line of argument at all, because let us not forget that this Parliament passed an Act—the Rent Restrictions Act of 1960—which controls the rents of a whole series of houses and does not permit landlords to charge what they like. It is rather, I presume, the kind of houses——
It does not prohibit vendors or persons buying houses.
I do not mind whether a person has a house which he can rent or which he can buy, provided he is not exploited. There is no protection whatever — equivalent to the protection afforded under the Rent Restrictions Act—for the person buying a house, which is about to be built or which has recently been built. The Minister and the Government should face up to the fact that there is gross exploitation of people in that category and the test of that, the proof of that pudding, is to be found in Part VII of the Finance Act of 1965 which skims off the large exorbitant profits which were being made out of the development of land. People were getting away with thousands of pounds out of the development of land and, even this Government were moved—I suppose for financial rather than for social reasons—to provide for the taking from land developers huge slices of income which had previously gone untaxed or which they were able, by very devious and questionable methods, to avoid paying income tax upon. That may not be very good English but it will do for the moment. Part VII of the Finance Act of 1965 is the proof that there are great profits being made by the developers of land.
Here we are going to allow the creation of future ground rents by those land developers. A possible solution to some of the inequities of Part VII, and there are some—I think the idea of having to pay income tax upon the capitalised value of a ground rent upon its creation and then continuing to pay income tax on the same ground rent from the first year of the lease is somewhat iniquitous—would be to have some kind of control of the price of land and, at the same time, repeal Part VII of the Finance Act of 1965. If you had a control of a reasonable character, Part VII would become a redundant piece of income tax legislation, because the huge profits would not be made and would not then be assessable to income tax.
I could not understand Senator Nash's talk about the cost of developing land. I have always understood that the grant which was provided for anybody building a house under the Housing Acts—the £275 or under a provident society £285—was for the purpose of buying the cost of development. It can be argued that that should have been increased but that did at one time, sometime in the 50s, represent the cost of development. But, consequently, the building contractor, when he gets the £275 has been paid already for the cost of development. It may fall a bit short and it is not correct to say, as Senator Nash said, that the site fine—the cost of a site— is only a small part of the price of the house. It may be a small part to a man of the liberal means of Senator Nash but the sum of, say, £800 to a person with an income of £15, £17 or £20 a week is a very considerable sum to have to pay on a site of, maybe, one-eighth of an acre, or whatever it is in the housing estates around Dublin; £500, £600 or £700 is an extremely heavy impost. The worst of it is that at least one-third of that is now going in income tax to the Exchequer but the rapacity of such a builder—and his hope of eventually dodging the income tax—will not permit him to charge what would be merely the cost of the development of the land.
Part VII of the 1965 Finance Act is a clear indication that there is big money being made out of land being developed for house-building purposes. The Government sit back and permit that to continue under this Bill—that gross exploitation, that immediate unnecessary big charge made upon young married couples—and, on top of that, say to the builder: "You may create your ground rent as well". The Minister should take serious note of this problem. I know it is not his particular province to control the price of land but I do think he ought to bring to the notice of his colleague, the Minister for Local Government, the facts I have put before him. I believe that an examination of these facts and the very cogent evidence provided in Part VII of the Finance Act, 1965, will convince the Minister for Local Government and other members of the Government that the price of land ought to be and can be controlled to the advantage of house purchasers.
I shall bring what the Senator has said to the attention of the Minister for Local Government. There are arguments in favour of what he has said in regard to the control of such land, but there are difficulties too, difficulties which might, indeed, hinder rather than help house building which is what we wish to encourage. If there were not such incentives towards the development of land we might find that houses were not being built. I want to enter that caveat against what he said. This is not a matter of easy solution but I shall bring it to the attention of the Minister for Local Government. As I said, I think it is outside the ambit of this Bill. I shall not refer again to the constitutional position. That is open to argument in the Supreme Court and it was not uppermost in my mind.
My main reason for deciding against prohibiting the creation of future ground rents was to ensure that the price of housing would not go up for the categories about whom Senator O'Quigley is so concerned, young married couples who are in a position to buy their houses. The immediate effect of this Bill would, if we prohibit the creation of future ground rents, be to put a further burden of £200 or £300 on the price of the house. That was my most pressing reason in deciding not to prohibit the creation of future ground rents. Young married couples are not interested in buying out their ground rents. Their concern is to get a house as cheaply as possible so that the mortgage repayments do not bear too heavily on them. The purchase of ground rents is a matter that arises for business people and people with houses at a later stage when they want to become the absolute owners of their residences or business premises. For young married couples ground rents are not uppermost in their minds.
Ground rents should not be there at all.
In due course and with the passage of time I feel that this Bill will have the effect of abolishing them altogether. I hope Senator O'Quigley and I will be here in about ten years time to see that happen.
On different sides of the House.
Amendment, by leave, withdrawn.
Amendment No. 5 not moved.
The same decision will cover amendments Nos. 45, 46 and 48 when we come to them. It is proposed that we take amendments Nos. 7, 8, 12, 13, 14 and 15 with amendment No. 6.
Before we deal with the amendments, to facilitate the discussion and to make it more enlivening, I wonder would the Minister be good enough to indicate the substance of each of the different categories in subsection (2). If we could discuss it against a background of ministerial information we might have a more enlightened and perhaps a shorter discussion on these amendments which are of a highly technical character.
The Senator wants me to explain the whole section?
Yes. If the Minister does not do it now I will be asking him to do it later. Perhaps he would be agreeable to do it now.
Are we going back to amendments Nos. 4 and 5?
No. Amendment No. 4 was withdrawn.
Amendments Nos. 4 and 5 have been disposed of.
I am glad because there is a grammatical inexactitude in one of them.
We can deal with it on the section.
Government amendment No. 6:
In subsection (2), lines 39 to 48, to delete paragraph (d), and substitute the following paragraph:
"( ) in case the land is a tenement, within the meaning of the Act of 1931—
(i) a person occupying the land under a lease for a term of not less than ninety-nine years which will expire twenty-five years or more after the date of the service by the person of a notice under section 4 of this Act in relation to the land and which reserves a yearly rent (whether redeemed at any time or not) of an amount that—
(I) in the case of a lease granted before the 1st day of January, 1914, is less than three-fourths of the amount of the rateable valuation of the land, as first fixed or revised after the date of the granting of the lease pursuant to the Valuation (Ireland) Act, 1852, as amended, and
(II) in any other case, is less than the amount of such rateable valuation,
and
(ii) a person who, or whose predecessors in title, has or have been continuously in occupation of the land as yearly tenants during the whole of the period of twenty-five years next preceding the date of the service by the person of a notice under section 4 of this Act in relation to the land at a yearly rent of an amount that, at the date of the service of the notice aforesaid, is less than the amount of the rateable valuation of the land at that date."
Senator O'Quigley has asked me to explain the section as a whole and the amendments which we propose in the context of the section as a whole. The amendment which we propose here is designed to meet the point made in the Dáil by Deputy M.J. O'Higgins and I think it goes some way to meet the amendment put down by Senator O'Quigley which follows this amendment. To go down through the section as a whole, seriatum, first of all the section deals with the general right to acquire fee simple, to buy out the ground rent under a building lease and a proprietary lease. That is straightforward enough.
I wonder would the Minister tell us what is included in a building lease.
A building lease and a proprietary lease are defined in the 1958 Act. The section also deals with a person who held land under a building lease which has expired or a proprietary lease which has expired but who is still entitled to be granted a reversionary lease of the land under the 1958 Act.
Originally, the intention was to confine the Bill to building lessees and proprietary lessees which are the normal ground rent categories. We then decided in subsection (2) (d) to bring in the yearly tenant, that is a person who has been continuously in occupation of the land which is a tenement within the meaning of the 1931 Act, as a yearly tenant for 25 years—originally, we had that at 50 years but we amended it to 25 years in the Dáil, at a yearly rent of an amount that is less than the amount of the rateable valuation of the land. The effect of that is to bring in a yearly tenant of a tenement under the 1931 Act who has been paying rent of less than the valuation of the premises and has been there for a period of 25 years. The purpose is to bring within the Bill people who have acquired a real equity in the property by being there for 25 years or more and whose rents are so low as to bring them into the ground rent category. Rents in excess of the valuation would be regarded as rack-rents and would be outside that category.
In the Dáil Deputy O'Higgins pushed the point—and I was impressed by it— that in addition to yearly tenants we should include certain leases. The purpose of the amendment which we are now considering is to extend the right of purchase also to lessees who are not building or proprietary lessees but whose rents are also ground rents. These are persons occupying land which is a tenement under a lease for a term of not less that 99 years which will expire 25 years or more after the date of the service of a notice under section 4. In effect, what this amendment does is to extend the right to purchase and so widen the scope of the Bill.
Although I have gone far outside what was originally envisaged I have decided not to go too far. This applies also to other sections, because the law relating to leaseholds and in particular the reform of the 1931 Act is under consideration by a Landlord and Tenant Commission established by me this time last year. I understand the Commission will be coming up with certain positive recommendations about reforming the 1931 Act in the very near future which will be, I hope, incorporated in a Landlord and Tenant Bill in the new year. In addition to that, I have asked this Commission, presided over by Judge Conroy, to examine the whole question of the Landlord and Tenant Acts going right back to Deasy's Act, 1861. Following the amendment of the Landlord and Tenant Act, 1931, I should like to see a situation arising where I or somebody will get a final consolidation Bill in about two years' time, so that the complete law relating to Landlord and Tenant, including the present Bill and the Bill which I hope to introduce next year, will be contained in one comprehensive statute. That is broadly my thinking on the matter. I hope that I have explained the section and the amendment to the House.
The House is grateful to the Minister for his comprehensive treatment of the section. I think that the Government amendment goes a good distance to meeting amendment No. 7 which I had down. As the Minister says, it is a matter for speculation as to whether or not the amount of the original valuation should be the factor—he has told us that in the case of pre-1914 valuations, it is less than three-quarters of the amount and in any other cases is less than the actual rateable valuation. What I am somewhat puzzled about—perhaps the Minister will be able to assist me—is that we have put in a certain number of categories from (a) to (d) in sub-section (2), and then we begin to eliminate in subsections (3) and (4) certain types from these categories. The reference in subsection (2) to a proprietary lease does not include under subsection (3) a lease of land used for the purpose of business. I wonder if the Minister can clarify what is meant by that. One can clearly see the rest of it.
In subsection (4), though yearly tenants of tenements within the meaning of the Landlord and Tenant Act, 1931, are covered in paragraph (d) of subsection (2), we eliminate under this paragraph (b) of subsection (4) the category of persons who occupy land as yearly tenants if the buildings in the land were not erected by the person in occupation of the land or by another person while in occupation of the land as lessee or tenant. There is a presumption that the buildings were, in fact, built by the occupier or his predecessor in title. I wonder what the value of paragraph (d) of subsection (2) is in the light of the exclusions contained in subsection (3) in relation to business and paragraph (b) in subsection (4). Perhaps the Minister might be able to indicate the broad category of persons he has in mind, because he seems to be liberal in paragraph (d) and then his liberality is cut short by paragraph (b) of subsection (4).
As regards paragraph (i) of subsection (3), in any case where the parties entered into an arrangement in which there was a variation clause enabling the rent to be varied up or down during the continuation of the tenancy, it would be inappropriatae to deal with the lease as if a ground rent—that is a fixed rent—arrangement existed.
In relation to paragraph (b) of subsection (4) can the Minister indicate whether the people specified in that subsection would be large in number?
This again applies only to a yearly tenant where the buildings were not erected by the tenant in occupation or by a previous tenant. The presumption is that they were so erected. The section does not apply to a person who holds the land as a yearly tenant if the buildings were clearly erected by the landlord, although the onus of proof is on the landlord. That is fair enough.
What I would like to be sure about is the position in relation to paragraph (d), where you have a yearly tenancy of a tenement within the meaning of the 1931 Act. Can that person buy out, subject to the rateable valuation being correct, unless the landlord can establish that the building was not erected by him or another person in occupation?
That is it.
That can be a shop, a public house, or any other building?
That is precisely the position, and the governing thing is the presumption at the end of sub-section (4) paragraph (b).
One can only hope that that will be interpreted strictly liberally. As far as the proof that the buildings were erected by somebody other than the occupier, that seems to me to be a very reasonable approach to the problem and to bring in a fair number of people. On the question of the rateable valuation of a property referred to in the amendment now introduced by the Minister, where you have a lease for 99 years of which 25 or more remain unexpired and where the land is under a particular valuation, am I right in thinking that that can be any kind of lease, an ordinary lease of property, and the person is entitled to buy out the ground rent?
That is the position.
If there was a building already standing and there was a lease for 99 years made say in 1922, there are still more than 25 years to go, and the rent is less than the rateable valuation of the building at the present time, then that person is entitled to acquire the fee simple.
We have three-fourths in the case of leases granted before 1st January, 1914.
That is in relation to pre-1914.
Yes.
In the case of, say, a 1922 lease, then the person is entitled to acquire fee simple.
That is right.
That seems to me to be satisfactory. The people of Waterford city or Waterford county where the valuations were revised sometime in the 1920s or 1930s enjoy an advantage. The rateable valuation in respect of Waterford is higher than that of any other county. I do not want to deprive the people of Waterford of any advantage which may accrue to them under this Bill. I think there is a provision in the income tax law where in the case of, I think it is Schedule A, it is always 1¼ or 1½ times the valuation but there is an exception made in the case of Waterford.
Let it be. They are very good people.
You can say that again. Twenty-nine per cent is very good.
We have nothing to say about them. The only thing is that proportional representation was not put to work by 1,500 people. We will get that seat back later. If the Government get comfort out of that I shall not deny them the illusory comfort it provides them for the time being. The Minister will know that as regards income tax for the rest of the country—Senator Nash will be more familiar with this—the fact is that for Schedule A it is 1¼ times the valuation. We had that all those years. We have to pay income tax on that basis. The Minister might consider, instead of it being the rateable valuation in respect of premises where the lease was made post 1914, increasing the valuation 1¼ times. There is a good precedent for that under the income tax law. It might be fairer that that would apply to all cases, except the city of Waterford, where there is this higher valuation imposed on holders of land. While agreeing with the Minister's amendment as it stands, I would ask him to look at that in the light of the statutory provisions in relation to income taxation.
I shall.
That would cover my amendment number 7 which is in the same terms as the Minister's except that the Minister deals with a different type of valuation.
I should like to ask the Minister whether valuation there means valuation during the period of the lease or valuation at the time of the application to buy out. For instance, a man could have his valuation lower than his rent. He improves his premises and next year his valuation could be higher than his rent. The section seems to me to be a little ambiguous on that point.
It depends on the time of the granting of the lease.
It would be very much lower then. I should like the valuation to be the valuation at the time of application.
That applies to some but is a point we could consider in relation to all.
An Leas-Chathaoirleach
If the amendment is generally agreed we could dispose of it.
We are discussing three amendments on the section. I am sorry Senator Nash raised the point because I can now see clearly that you could go into the valuation office and say: "Will you come down and inspect my property? I think the valuation is much too low." You could get an appropriate increase made.
If a man has spent money improving his premises then it is far more valuable. If his valuation goes up, then that is the valuation which should be taken.
There is an anomaly here and I am impressed by the point raised by Senator Nash. We will deal with that between now and Report Stage.
Amendment agreed to.
Amendment No. 7 not moved.
I move amendment No. 8:
In subsection (2) to add a new paragraph as follows:
"( ) A person who at the date of service of the notice under section 4 is in actual occupation of a dwelling-house held with not more than one acre of land under any lease made for a term of not less than ninety-nine years and of which not less than twenty-five years remain unexpired at the date of service of such notice at a yearly rent which does not exceed twice the rateable valuation of the land at that date."
This amendment is in a somewhat different category. I think it is covered by Government amendment No. 6.
It is.
I was concerned about providing that where land might be held which was lower than the rateable valuation and there were no buildings on it a person might be entitled to buy out the ground rent and acquire the entire fee simple. There is a case to be made where you have land in excess of what is actually required for building purposes. One finds that there are too few open spaces especially on the outskirts of Dublin. There is a general move in building estates around Dublin to try to get urban authorities to provide some open space. Indeed, in some cases, residents associations have combined to buy out some of those open spaces for the purpose of providing playing fields, parks and community centres for the local community. Amendment No. 8 was designed to deal with the case where you could have such open space after housing requirements were completed. The Minister's amendment probably meets the situation.
It does not go the whole way. I shall have a look at it.
Amendment, by leave, withdrawn.
Government amendment No. 9:
In subsection (3) (i), page 5, lines 1 and 2, to delete "dwellings" and substitute "flats".
This is a drafting amendment. It seeks to ensure that the type of lease referred to will not include business leases of multiple dwellings in the form of a terrace of houses but only such leases of new buildings which are blocks of flats.
Would the Minister clarify that?
It is not intended to include terraced houses—corporation houses.
This is an exception?
That is right.
Terraced houses are now included?
No, they are not included; they are dealt with by ordinary vesting provisions outside this. These are local authority houses.
Do these legal definitions lead us into trouble? A dwelling is not necessarily a flat and a flat is not necessarily a dwelling. Does it mean a dwelling must be on the level? I think this is getting confused.
I gave Senator O'Quigley a wrong answer. The local authority houses are included. What is involved here relates only to the development leases with the rent variation clauses in them. They are excluded. This clarifies the type of property involved. It refers back to what I was saying earlier about flat building and development which included rent variation clauses—back to sub-section (3).
Yes, I appreciate the Minister's difficulty but in sub-section (3) we are excluding where the land is used for the purpose of business.
We are. There is a rent variation clause.
Only in that case?
Yes.
I think it is not quite clear what precisely the effect will be. I do not understand what the Minister has in mind. I think it is to exclude a house which is used for multiple dwellings.
Yes, for flats: to ensure that this covers flats but not dwellings, say, in a terrace. Substitute "flats" for "dwellings".
This only applies where there was a variation?
Yes.
The Minister might be confusing it. Will the dwelling have to be on the level? I am not a lawyer but one hears of those legal difficulties. I think we could create trouble by changing "dwelling" to "flat".
A flat is a multiple dwelling.
I have no sympathy with Senator Ó Donnabháin's point because we all know what a flat is.
That sort of thing causes trouble in the courts.
It is not a question of whether it is on the level or on the second storey. The courts do not live in ivory towers. They are down to earth.
I am perfectly certain that this could cause trouble. A multiple dwelling need not necessarily be a flat.
I am not concerned with the location. What I am concerned with is that I do not think there is any definition of a flat in the Bill.
The expression is used in the Rent Acts.
Maybe, but the Rent Acts are not incorporated in the definition section of this Bill.
We can define what flats are but in my view any court will take the view that they are multiple dwellings.
I think that Senator Ó Donnabháin, having raised the hare——
Senator O'Quigley can course it.
We will course the proper one. It seems the Minister might incorporate a definition of "flat". We all know what a flat is——
I never thought I would hear Senator O'Quigley say "we all know what a flat is".
We can consider putting a definition of "flat" in the definitions section.
Amendment agreed to.
Government amendment No. 10:
In subsection (3) (i), page 5, line 5, after "lease" to insert "(not being provisions enabling such rent to be altered once only and within five years from such commencement or upon the erection after such commencement of any buildings upon the land or upon the breach of a covenant, condition or agreement in the lease)".
The purpose of this amendment is to clarify the drafting of subsection (3) (i). The sub-section provides in effect that the right to purchase the fee simple shall not apply to modern business leases which contain rent review clauses. This amendment distinguishes between this type of lease and the type of lease taken by a builder which may have a clause enabling the rent to be altered on the completion of each house or on the completion of all the houses. This type of lease is not uncommon. This is to make quite clear that this sort of clause inserted in the lease will not preclude the tenant from the right of purchase. We are narrowing down the exclusion from the right of purchase purely to the cases where there is the genuine variation clause—for instance enabling the rent to be altered every seven years. This is widening the scope of the Bill and restricting the exemption from it.
It is very difficult after the Minister's explanation to see quite what is intended. What we are doing in the amendment is excluding the kind of leases——
We are bringing the category in the amendment into the ground rent purchase provision and excluding them from the exemption category envisaged in the subsection. This is in the interests of the tenant.
Yes.
It is the usual thing in the case of building schemes that a builder takes a lease, payment of the rent of which is conditional on one house or X houses or the scheme being completed. This is not the rent review covenant which the subsection is intended to cover.
Yes, I see that.
Amendment agreed to.
Amendment No. 11 not moved.
An Leas-Chathaoirleach
Amendments Nos. 12, 13, 14 and 15 have been discussed with amendment No. 6.
I wonder whether we discussed amendment No. 13?
An Leas-Chathaoirleach
The understanding of the Chair is that it has been discussed, but if there is any supplementary point, it may be discussed.
On amendment No. 6.
That relates to paragraph (d) of subsection (2) of this section. Amendment No. 6 will be a new paragraph (d).
It is consequential on what we have agreed to in Government amendment No. 6.
Government amendment No. 12:
In subsection (4) (a), page 5, line 29, to delete "or".
Amendment agreed to.
Government amendment No. 13:
In subsection (4) (b), page 5, line 30, before "as" to insert "as lessee under a lease of the kind specified in paragraph (d) of subsection (2) of this section or".
Amendment No. 14:
In subsection (5), before paragraph (b), page 5, to insert the following paragraph:
"( ) For the purposes of paragraph (d) of subsection (2) of this section, the rent reserved by the lease shall comprise the rent reserved as such in the lease (other than a penal rent payable for any breach of covenant) together with one-twentieth part of any fine payable by the lessee under the terms of the lease."
Would the Minister tell us what is involved in amendment No. 14?
I think this was agreed already.
I think the Minister should have on the record as much as possible that will be explanatory of those provisions.
This relates back to Government amendment No. 6 which we have approved and is one of the matters which I am going to have a look at between now and Report Stage.
An Leas-Chathaoirleach
I think it would be best to agree to the amendment and review the matter on Report. Agreement now will not preclude its discussion on Report.
I wonder if the Minister would tell us what it was intended to achieve by amendment No. 14.
The amendment brings in a new paragraph in the existing subsection (5) in the case of pre-1914 leases. It relates only to the determination of whether a rent is small enough to qualify the lessee for the right of purchase now to be given under amendment No. 6. It provides that any fine paid by the lessee will be taken into consideration —one-twentieth of it will be added to the rent. This is not in the tenant's interest but I have undertaken to have a look at it with a view to bringing a greater degree of uniformity into all the categories embodied in the addition to subsection (2)—that is the yearly tenancy category and the new lease category—so that the same criterion would apply to them all in respect of the valuation, to have no distinction between them.
I appreciate that, but what it seems was being achieved by amendment No. 14 was, in fact, to increase the rent by one-twentieth of the fine paid at the time the lease was created. I think that would be very undesirable.
Very undesirable.
I entirely agree with that. In view of the fact that it is undesirable, perhaps the Minister might withdraw the amendment.
Amendment, by leave, withdrawn.
Government amendment No. 15:
In subsection (5) (b), page 5, line 45, before "held" to insert "demised by a lease or".
The Minister has just referred to the addition to the categories in subsection (2) of section 3 and, in that context, he mentioned the yearly tenant. What I want to make sure is that, having dropped the whole of paragraph (d) of subsection (2), we have not left out the yearly tenant, but I see he is in subparagraph (ii) of (d); he is back in. I was a bit uneasy about that for the moment.
An Leas-Chathaoirleach
Amendment No. 15 agreed?
This is subsection (5)?
Yes; before "held" to insert "demised by a lease or".
Yes; amendment No. 15 is consequential upon amendment No. 6?
Yes.
Amendment agreed to.
I move amendment No. 16:
In subsection (6), page 6, lines 4 and 5, to delete "the commencement" and substitute "the coming into operation".
This is purely a drafting amendment. In section 1 we say that this Act shall come into operation on such day as may be appointed by order of the Minister. It seems to me that this may affect the point of time. Do we mean the date this Act is passed, because I think that this Act commences whenever it is signed by the President; that is a different date from the date upon which it will come into operation, because the Minister may appoint the 1st April as the date upon which it is to come into operation. I wonder if there is any distinction between the two? "Before the commencement of this Act" could mean before the date upon which it is signed by the President.
But it does not really come into effective operation until I make the Order under section 1.
It is in operation; otherwise the Minister cannot make the Order. We have had that, I think, on other Bills.
The Senator can be sure that the order will follow post-haste the President's signature. I am very anxious that this Bill become law.
We say in section 1:
This Act shall come into operation on such day as may be appointed by order of the Minister.
That could be the 1st March or 1st February. I am wondering, for my own information for the future, whether the date upon which the Act comes into operation, fixed by order, is clearly a different date from the date upon which the Act is passed. Does the phrase "after the commencement of this Act" refer to the date upon which it is passed or is it the date upon which it is brought into operation by order of the Minister?
Section 1 says:
This Act shall come into operation...
and opposite there is the word "Commencement", as a side heading.
But the Interpretation Act of 1937 precludes any court from taking any notice of side headings. It is for that reason it seems to me that if we mean the date upon which the Act is brought into operation, we should say that.
At the same time, it has been standard practice over the years in many statutes that "commencement" is equated to "coming into operation".
That is all right where "coming into operation" is not delayed, pending an order of the Minister; that may be all right in that kind of context. But it seems to me, where we use the phrase "come into operation" that that is to be the deadline date. To eliminate any confusion, if we say that, then we ought to continue that throughout the Act.
I do not want to have a row with the draftsmen; it is purely a drafting point.
But it can be important in this particular Act.
I will have a look at it anyway.
I could not make up my mind as to whether it was the date upon which——
That is the commencement date and the date of its coming into operation. The effective date of its coming into operation is the date of the order; it is inoperative until the order fixing it comes into operation.
Sin scéal eile.
It is not an effective Act——
But it is because it enables the Minister to make an Order.
Amendment, by leave, withdrawn.
Question proposed: "That section 3, as amended, stand part of the Bill."
Perhaps I might be permitted to make this observation. We do not seem to have got rid of the fee farm rent and I take it we are not doing that in the section. A fee farm rent, to my mind, is as much a nuisance as the ground rent. It seems to me that, under this section, we are not making provision for the elimination of fee farm rent, which is never any more, indeed, than a ground rent, but perhaps the Minister would clarify that. We are dealing with it in this section and, indeed, a fee farm rent, when bought out, will give to the owner of the property exactly the same kind of interest as, or an almost analogous interest, that of a person who buys out the ground rent under a lease. Fee farm is normally subject to certain conditions but more particularly to the right of re-entry in the event of non-payment of the fee farm grant which is only £3, £4, £5 or £10. It is probably less than the ground rent. I wonder whether the Minister has adverted to that.
The same point was raised in the Dáil and we brought in an amendment to section 2, the interpretation section stating that "fee simple" does not include the interest in land of a person holding the land under a fee farm grant. That was intended to give the fee farm grantee the same right to purchase which is given to other tenants in this Bill. The fee farm grantee has the same rights as other ground rent tenants mentioned in the Bill. If the Senator looks at the interpretation section he will see it. This precise point was raised in the Dáil.
I am wondering whether in fact we do that effectively in the section because what we are dealing with in the section is land held under a building lease, under a proprietary lease, under a building lease which has expired and, in amendment No. 6, where land is held under a lease of 99 years, and a yearly tenant.
In the 1931 Landlord and Tenant Act, the definition of "lease" is:
.... an instrument in writing, whether under or not under seal, containing a contract of tenancy in respect of any land in consideration of a rent or return and shall include a fee farm grant;...
If we relate the interpretation section back to that, it is quite clear that fee farm grant is covered and that a fee farm grantee has the same right to purchase a fee simple as other tenants have.
Would the Minister point out where the 1931 definition is incorporated in the Bill? I cannot see it.
Section 34—we tie them together in section 34: "The Landlord and Tenant Acts, 1931 and 1958, and this Act shall be construed together as one Act and may be cited together as the Landlord and Tenant Acts, 1931 to 1966." I think that knots it up.
I should like to think it did. I shall have another look at it myself and perhaps the Minister will have another look at it.
I shall.
It might be desirable to incorporate in section 3 something which would make it quite clear that the fee farm grant is included, or alternatively to incorporate in amendment No. 6 some reference to the fact that "lease" includes fee farm grants.
If we were doing it, that would be the place to do it.
Subsection (3) (d).
That is right.
I was surprised that fee farm grants were apparently being left out in the cold.
No, that was brought in on Committee Stage in the Dáil.
Question put and agreed to.
SECTION 4.
An Leas-Chathaoirleach
It is suggested that amendments Nos. 17, 18, 19, 27, 29 and 33 be debated together.
They all relate to the same thing.
An Leas-Chathaoirleach
Furthermore, it is understood that amendments Nos. 18 and 19 are intended to be amendments to the ministerial amendment No. 17. Is that correct?
That is so. If section 4 is replaced by amendment No. 17, then it would be equally desirable to amend amendment No. 17 and to amend section 4 as it stood. I can explain that later.
An Leas-Chathaoirleach
In that case, the proper procedure is for the Minister to move amendment No. 17 and for Senator O'Quigley to move his amendment as an amendment to amendment No. 17.
NEW SECTION.
Government amendment No. 17:
Before section 4 to insert the following new section:
"A person who proposes to acquire the fee simple in land by virtue of this Act shall serve a notice in the prescribed form upon each of the following persons who can be found and ascertained, that is to say, the person who is for the time being entitled to the next superior interest in the land, every (if any) person who is, in relation to the land, the superior lessor of the person so proposing and every (if any) person who is the owner of an incumbrance thereon."
My amendment No. 18 seeks to add a new subsection to this proposed new section:
"( ) The person entitled to the next superior interest to a person who proposes to acquire the fee simple in the land and every other person entitled to a superior interest or their respective agents, shall, on being requested in writing by the lessee supply the lessee with particulars of the names, addresses and interest in the land of the person from whom such superior lessor holds or who holds the land from such superior lessor."
Section 4 and section 3 are probably the vital sections in the Bill because they confer rights upon the tenants. What I had in mind in amendment No. 18 was to provide machinery for the effective use of those rights. I am aware that in section 12 a person shall "serve a notice in the prescribed form upon the person to whom the rent is payable and upon any other person who holds any of the land demised by the lease as lessee under a building lease or a proprietary lease..." Very often there are considerable difficulties where there have been several sub-lettings and assignees and, indeed, one finds people in possession of property and liable for ground rent because someone has died or gone away and their names may not be known to the tenant wishing to acquire the fee simple. At times there can be great difficulty in ascertaining to whom ultimately the ground rent is payable.
What I am trying to achieve in amendment No. 18 is to provide that wherever you can find someone who has an interest in the lease or is that person's agent, the tenant should be able to require him to disclose to whom he pays the rent if that person is not known to the occupying tenant. I think we should put the onus on anyone who has information to disclose it to the acquiring tenant. That would be helpful to the acquiring tenant and would substantially reduce the cost of an investigation. That is all amendment No. 18 is intended to do. If a precedent is required it will be found in the Rent Restrictions Act, 1960, and in the Rent Restrictions Act, 1946, where there is an onus upon a landlord or a tenant to give as much information as possible relating to a particular property in order to enable the basic rent to be fixed.
Similarly, under the Rent Restrictions Act, it is provided that failure wilfully to supply information is an offence punishable on conviction by a fine not exceeding £100. I think the Minister will agree that that is a reasonable requirement on any person who has information with regard to a superior interest or a lower interest, that he should be obliged to give that to the acquiring tenant under threat of penalty if that information is not forthcoming. It is a bit ineffective to provide under section 12 that you will serve notice upon people whose names and addresses or identity may not be known. Amendment No. 18 at least puts some teeth into the Bill to enable the tenant to ascertain who are the owners of various interests who are required to be served.
Did Senator O'Quigley advert to section 7 under which we cover to a very large degree what the Senator suggests? Section 4 deals with the notice of intention to acquire fee simple, section 5 deals with the procedure in relation to acquisition, section 6 deals with the conveyance of the fee simple, and in section 7 which deals with notices requiring information, we have covered, I think, a large extent of what Senator O'Quigley has envisaged in amendments Nos. 18 and 19, short of having the penal provision which he suggests. We provide under section 7 that any person who proposes to acquire the fee simple may serve a notice on the immediate lessor requiring information as to the nature and duration of his reversionary interest in the land and the existence and nature of any encumbrance and the name and address of any person entitled to the next superior interest and the owner of any encumbrance on that, and a similar notice on each other person having a superior interest in the land. Then in subsection (2) we provide that where a person upon whom a notice may be served cannot be found or ascertained, a notice may be served on the person receiving the rent in respect of the land, requiring the name and address of the person to whom the rent is paid by the person upon whom the notice is served. Subsection (3) says that such a person on whom a notice is served shall, within one month, give so much of the information required by it as is within his possession. This goes a very long way to meet Senator O'Quigley's point.
Section 7 provides that the acquiring tenant may serve a notice upon his immediate lessor requiring him to give information, but there are cases where, for one reason or another—people may be beyond the seas or dead—it may take quite an amount of research to find out the person to whom he wishes to pay the rent.
Subsection (2) looks after that. The only difference is the question of the agents.
It would entitle an acquiring tenant to serve notice on anybody who is in a position to give information. He must ultimately serve notice on every superior interest, but under section 7 we appear to be limiting him to serving on his immediate lessor, who is supposed to supply information about his immediate lessor. He is also entitled to serve notice on every other person having a superior interest, but he may not know who they are.
Under subsection (2) he may serve it on the person receiving the rent. We have further amendments, Nos. 21 and 22, extending the information that can be obtained.
If that is so, I shall not delay the House on this amendment.
It might be better if all this were discussed on section 7.
Amendment agreed to.
Section 4 deleted.
Amendment Nos. 18 and 19 not moved.
I thought we were dealing with amendments Nos. 17, 18, 19, 27, 29 and 33 together.
An Leas-Chathaoirleach
As we come to the sections. Amendment No. 20.
Amendment No. 20 again is consequential.
This is in relation to apportionment.
I am very sorry.
SECTION 5.
I move amendment No. 20:
To add to the section a new subsection as follows:—
( ) Where land held under a lease is indemnified against payment of any part of the land held under that lease by other land held under the lease, the apportionment of the rent reserved by the lease shall in respect of land so indemnified be nihil.
We are dealing under subsection (3) of section 5 with a person entitled to acquire fee simple in land held by him under a lease, and providing that he shall be entitled to have the rent payable to him in respect of the land and any other land held under the same lease apportioned between the land the fee simple of which he is acquiring and the other land. I am trying to provide for a situation which may arise. Take a site of 11 houses. A builder builds 11 houses and the annual rent is £80, and instead of making the rent on each site one-eleventh of £80 he decides that he will occupy house No. 11 for himself or give it to his son, and he has that free of rent, and the rent which is to be payable under the lease will be borne by the other ten. This happens in many cases of builders nominating people who take a lease. Consequently, you find that ten houses pay a ground rent of £8 and the eleventh is indemnified against any portion of the rent of £80 by the other ten houses.
That happens at present, and in cases where properties were held under building leases, mainly 19th century or earlier, or at any time, where you frequently find that in the course of time somebody has shifted the liability to pay the rent on to another property. If it happened that a man owned two houses held under a lease subject to a ground rent of £20 he might have a larger price for one of the houses not occupied by himself and sell it, indemnifying the tenant against payment of the entire rent, and charge the full £20 upon his own property, and effect that in a deed of assignment of the second house to a purchaser. If that vendor's successor in title were now to seek to acquire the fee simple in the property it would be inequitable that he could come in and say to the county registrar: "Apportion this rent of £20 which I have to pay under the lease and which was payable in respect of two houses, as between myself and my neighbour" who had never been liable to pay any portion of the £20, and he may find himself saddled with a rent of £10.
It seems that that is what is envisaged under the Bill. I suggest in the amendment that where land has been held under lease and it is indemnified against payment of any part of the rent, the person liable now to pay the rent shall continue to pay it, and the indemnified portion will remain free of any liability for an apportioned part of the entire rent reserved under the lease.
I am aware that you have these indemnity provisions in regard to certain leasehold arrangements. At the same time, I think that rather than have a rigid provision such as that proposed by Senator O'Quigley we should leave the apportionment of the rent to be agreed between the parties, and where they cannot agree let them go to the county registrar. It is desirable not to pin it down any further. If we say, if they cannot agree among themselves, let the county registrar decide, he will have regard to the indemnity arrangements which have been made and will take due cognisance of them.
I am afraid I could not agree with that. When the county registrar is faced with an application, say, my hypothetical applicant who has to buy the entire ground rent of £20, the county registrar is bound to apportion all the rent. I think it is necessary to say that it shall be applicable to rent in the case of a person——
The Senator should have a look at section 17 (2) (d) which says:
determining if a person is entitled to have a rent apportioned under section 5 or 11 of this Act.
He can apportion it if he wishes.
The county registrar is entitled in the case I mentioned where no rent is payable out of a property to have the guidance of the legislature.
I am not quarrelling with the Senator. I agree largely with what he says. I suggest giving more global power to the county registrar would be better than having a more rigid section here.
It seems to me fairer if a person is buying out the ground rent of £20 that he will pay somewhat less if you accept my amendment. We should ensure that a man who is indemnified all those years in regard to the payment of ground rent, and who now wishes to buy out the fee simple, is not burdened with the rent and that he will not find himself not alone having to pay the apportioned rent but also the capital value if involved in buying it out. We want to avoid that. If the Minister is a bit unhappy about putting this in as a subsection of section 5 I wonder whether he would be prepared to put it in under subsection (2) of paragraph (d) in this manner so as to indicate the view of the legislature determining if a person is entitled to have a rent apportioned and the amounts in which it should be apportioned. We could then include some clause which will not limit the powers but will indicate what way we wish to have it done in this type of case by saying "Without prejudice to the generality of subsection (d) of this section", and then go on to say: "where land is held under a lease and indemnified against payment of the rent that case shall be apportioned at nil. That will not take away any powers which the county registrar has in regard to apportionment. As matters stand it would be very unjust and would create unnecessary discontent on the part of a person who found himself burdened with rent which he never had to pay up to now. It would be wholly wrong of the legislature not to say quite clearly in the case I have indicated that a man who is indemnified against the payment of any ground rent should bear any proportion of the rent.
If you take the case of the 11 houses which I have mentioned it would be quite wrong that the eleventh should pay the same as the others. If he were buying his house and particularly if he were not the first occupier, he would pay somewhat more by reason of the fact that he did not have to pay ground rent and he was indemnified by the other 10 property owners. It would be very inequitable to leave it that he might have to pay portion of the ground rent and then if he wanted to acquire the fee simple that he would have to pay the capital value. We ought to insert in section 17 "without prejudice to other powers contained in this type of case there shall be a nil apportionment".
I would not imagine that the county registrar would do otherwise than that asked for by the Senator in the case mentioned by him. The Senator is very well aware that the variations in regard to landlord and tenant holdings are infinite. You could have a case such as the one mentioned by the Senator where there is an indemnity and no rent paid. This could give rise to different rights which could be put into the nil category in regard to compensation and yet no rent would be paid. The other property owners in the estate would be carrying it. That is one case which comes to my mind. It would entitle the landlord to compensation and yet no rent was payable. I am sure if you start getting down to it you could find a dozen cases of involvement in technicalities. That is why I dislike this sort of thing. If there was a case such as that envisaged by Senator O'Quigley I am certain the county registrar would do what the Senator is seeking he should do.
I can see county registrars who are extremely careful people looking at this section and saying: "I am here now to apportion a rent. The legislature says I must apportion the rent under which this property is held. This man says the property is held under a lease for so many years at an annual rent of £20." That is what the lease says. It so happens that at some stage in the devolution of the property somebody was indemnified against portion of the rent. The county registrar may say that may be so but he is bound to apportion the rent and there is nothing in the Act to say that apportionment of the rent means relieving somebody of the rent.
Take a complete scheme of 100 houses. The whole lot might be paying no rent and the whole rent could be apportioned to a worthless property on the estate. If the tenants bought out their ground rents for nothing the landlord would be left holding the baby in that case—he would have no real security for the rent. The arrangement under which the total rent was apportioned would be no more and the landlord would not be able to prevent the builder from making such an arrangement.
That is the kind of thing that would be dealt with on appeal.
It could happen though.
It poses a problem for the landlord who has no right of appeal in this.
He has. However, we will have a look at it.
That kind of situation would be a monstrous exercise of the county registrar's discretion. I cannot think of anybody doing that. It could be done but it is quite an exceptional case of the exercise of discretion going wrong.
In Senator O'Quigley's amendment there is no discretion to the county registrar in that sort of case.
The Minister is talking about any apportionment. Let us be quite clear that a landlord is not bound by any apportionment of rent unless he consents to it. If upon the sale of one of the pair of houses I was talking about subject to the rent of £20 the owner of the two properties said: "I will let you have that house free of rent if you give me another £200" and the purchaser 20, 30 or 50 years ago said: "Very well, I am perfectly happy to have to pay no rent" and then the vendor of the two houses agrees to indemnify the property being sold against payment of any rent and charges it upon his own property, that kind of indemnification does not bind the landlord. That is a particular type of situation that can arise. It is a well recognised fact that there are lots of houses held under a lease always liable to the entire rent in cases where the landlord has not consented to the apportionment. The landlord can say: "That is a poor old widow. I will not charge her any ground rent" but this man can afford it and the merchant in such a case can have no answer to the landlord's claim for the whole part unless he had been joined in the apportionment when it was made. It seems to me we must give some cognisance to the fact that there are such properties which are not now liable because of dealings with the property in the past. I think we should put something into section 17 in the manner I suggest.
We will have a look at it in the context.
Amendment, by leave, withdrawn.
Question proposed: "That section 5 stand part of the Bill".
May I draw the attention of the Minister to the fact that in section 5, line 46, the wording is: "The rent payable by him in respect of the land"?
Point taken.
No consistency on the part of the Minister I am afraid. Senator Sheehy Skeffington's timely intervention enabled me to find a point which I think arises. I wonder whether the Minister has considered this situation. Here we are dealing with building leases and proprietary leases. There is a certain situation—and here I am talking upon advice—where you have a partly built on lease which is dealt with under the Landlord and Tenant (Reversionary Leases) Act of 1958. I am advised that only in certain situations is a partly built on lease a proprietary lease for the purposes of the Landlord and Tenant Act, 1958, and that proprietary leases and building leases as we have defined them in subsection (2) of this Act will not capture partly built on leases. I wonder whether the Minister has adverted to that. I am raising the matter in this vague way now in order to entitle him to put down an amendment on the Report Stage. I am advised that there are situations in which partly built on leases which for the purposes of the Act of 1958 are to be deemed proprietary leases or building leases—I cannot say at the moment—but only for limited purposes. Would that not come within the ambit of this particular Bill? I wonder if the Minister has had that point brought to his attention?
My advise is that section 6 of the Act of 1958 which deems partly built leases to be building leases is proper enough but at the same time it is one of the matters on which doubt has been passed. There are no decided cases on it but doubt has been passed on the drafting of it and we have had already one or two examples of drafting in the 1958 Act which came to light during the examination of the present Bill and which we have improved in the present Bill. The 1958 Act along with the 1931 Act and the other Acts back to the 1861 Act are under consideration by a Commission with a view to improvement. I hope to have results from them in the coming year.
Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
In section 6 we are dealing with the fee simple. Are we making it quite clear that the acquiring tenant can get a clean title and that if persons who have encumbrances do not join in the conveyance or if they cannot be ascertained whether or not merely by payment of money into court one can get a clean fee simple? What is to be done in the case of a person who may have a mortgage on the ground rent not joining in or where the owner is unascertainable?
We cannot do anything more than provide what we do provide at sections 4, 5, 6 and 7. We go on in the next section for the purpose of procuring the necessary notice. We have the notice provision which is the best we can do. I appreciate what the Senator says but what more can we do in the case of an unascertained holder of a mortgage? What more can we do than set out a notice procedure which we have in the following section?
Whatever the value of the outstanding mortgage could we not provide that it be lodged in court or lodged with the trustee?
Of course, we have a provision further on also.
Getting somebody to join in?
Yes, section 8 provides that the county registrar is enabled to act in certain circumstances and the money can be lodged in court—we could deal with that better when we come to the appropriate section.
Question put and agreed to.
SECTION 7.
An Leas-Chathaoirleach
It has been agreed that amendments Nos. 21 and 22 will be discussed together.
Government amendment No. 21:
In subsection (1) (a), line 15, before ", and" to insert "and any other information reasonably necessary for the purpose aforesaid".
We have already had some discussion on section 7 in connection with an earlier amendment. Senator O'Quigley had some ideas on its improvement. We were not altogether happy with it as it stood and that is the reason for the two amendments. At present the purchasing lessee can serve notice requiring information upon the superior lessor or upon the person receiving the rent. The amendments provide that the particular information which he can require from each of those persons shall include any information reasonably necessary for the conveyance of the fee simple, in addition to that already required in the section.
I think this goes a fair bit of the way towards meeting the point mentioned earlier on by Senator O'Quigley.
Except that this—as I mentioned to the Minister earlier— seems to me to relate to the immediate lessor only. There may be cases where, say, the head landlord of all—the ultimate landlord—might have information in his possession in relation to the intervening interest between him and the acquiring tenant and it might be desirable to make him disclose what information he had.
Would not "and any other information reasonably necessary for the purpose aforesaid" meet the point?
I think the Minister would agree that that relates only to the immediate lessor of the acquiring tenant.
No. I think that goes the whole way; that is the thinking behind the amendment; to ensure that it goes the whole way—to the head landlord and down. If the Senator would look at subsection (1) (b) of section 7 he will see it reads:
... serve a similar notice upon each other person having a superior interest in the land.
That is so, except this: what is provided in paragraph (a) is, first of all, upon the immediate lessor and then you ask him who, next to him, is the lessor—who is your lessor. Paragraph (b) says:
...serve a similar notice upon each other person...
That is the only information you are entitled to require of any person interested.
Then we say in the amendment: "...and any other information reasonably necessary for the purpose aforesaid".
The objection up to now has been that you could not require a person to say who was under him.
The combined effect of section 1 and the amendments meet the point; that is amendments 21 and 22.
That, I think, probably meets the situation, if that is the interpretation to be put on it.
Amendment agreed to.
Government amendment No. 22:
In subsection (2), line 23, after "served" to insert "and any other information reasonably necessary for the purpose specified in subsection (1) of this section".
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8.
An Leas-Chathaoirleach
It is suggested that amendments Nos. 23, 25, 30, 31, 32 and 34 be taken together, with separate decisions if necessary.
I move amendment No. 23:
In subsection (1), line 36, before "may" to insert the following: "or in case such registrar by reason of having any interest in the land or otherwise considers it would not be proper for him to do so, the county registrar in an adjoining county to be selected by the person acquiring the fee simple"
The purpose of this amendment is to provide for a situation which is bound to arise where a county registrar, his wife, son, daughter, father or other relation may be a person interested in property, the fee simple of which is being acquired and the property, if it is situate in the county where he is county registrar, would fall to be dealt with—as regards apportionment and all the other functions a county registrar has under section 17—by him. It seems to me highly undesirable, in fact, quite wrong to say that a county registrar, who was himself the lessee of part of a property held under a lease, the fee simple of which was being acquired, would be adjudicating upon a matter in which he had a material interest. It is quite simple to see that that could not be; it is contrary to every notion of justice we have.
Of course, that situation sometimes arises in our courts where you have a circuit court judge in a particular county who may have an interest in property or who may know somebody who is the plaintiff or defendant in an action particularly well—there may be a relation involved—he does not deal with the case himself; he asks the President of the circuit court to ask another judge to deal with the case.
I am with Senator O'Quigley a long way on this but I do not think that the right way to do it is to ask a county registrar in another county to do it because this might also give rise to complications.
I think it would be sufficient for the President of the circuit court, who does assign judges, to assign an appropriate county registrar.
Amendment, by leave, withdrawn.
I move amendment No. 24:
In subsection (2), to add a new paragraph as follows:—
"( ) Paragraph (a) of this subsection shall not apply in the case of an infant, or a person of unsound mind, who is a ward of court or in the case of a bankrupt."
This is another amendment where the Minister will probably agree with me.
Yes, I do.
There will be a Coalition between Fianna Fáil and Fine Gael soon.
This is nothing new.
Where reason meets reason there can be a marriage—but without love. I had in mind in this amendment that you could not in the case of an infant, or a person of unsound mind who was a ward of court, allow the jurisdiction of the President of the High Court to be ousted and have the county registrar nominate somebody else instead of the committee or guardian of the infant. There is nothing more to be said about that. I do not claim to be a Parliamentary draftsman. I do not know whether the amendment is drafted sufficiently to meet the situation.
There is a High Court jurisdiction residing in these cases—infants and people of unsound mind. It is probably undesirable that the county registrar should be dealing with it. I shall have a look at it between now and Report Stage, with a view to incorporating in here that the jurisdiction in this type of case would reside in the High Court and not in the county registrar.
There will be cases, of course, where there are persons under wardship, under the Mental Treatment Acts, in the circuit court where the local circuit court judge has the jurisdiction over the estate of the ward.
In these cases also, the jurisdiction should reside in the court, rather than in the county registrar. I think that meets what the Senator has in mind.
Equally—dealing with the ward of court—I am wondering whether the Minister accepts the situation in relation to a bankrupt's estate?
The same applies there.
Amendment, by leave, withdrawn.
Amendment No. 25 not moved.
Government amendment No. 26:
In subsection (4), page 8, line 4, to delete "Court" and substitute "county registrar".
This amendment substitutes the county registrar for the court in subsection (4) of section 8. I do not think this should cause the Seanad any trouble; the important point is that the money would be payable into court.
An Leas-Chathaoirleach
Amendment agreed to?
I am just wondering how the courts came into it in the first place. I am wondering whether it is right to have this, because at a later stage in the Bill there is a right of appeal to the courts.
That is right.
I wonder whether it should be retained where a person has been appointed by the county registrar and money becomes payable into the courts. This is a matter of first impressions, because I have not gone into it in great detail. Here you may be eliminating the courts and providing that only a county registrar can pay money into the courts. I am wondering whether the Minister is entitled to be satisfied.
This is only to get the machinery right. The county registrar will be the hearing arbitrator. He will have to order the money to be paid into the courts. This is to get the procedural machinery right. I do not think there is anything in it.
Amendment agreed to.
Government amendment No. 27:
In page 8, to add to the section a new subsection as follows:
"( ) Where a person upon whom a notice under section 4 of this Act in relation to land is required to be served cannot be found or ascertained, the person shall be deemed, for the purposes of this section, to be a person who is required by this Act to convey or join in conveying the fee simple in the land."
An Leas-Chathaoirleach
Amendment No. 27 is consequential on amendment No. 17.
It is a very useful amendment and it will eliminate a lot of difficulties.
Amendment agreed to.
Question proposed: "That section 8, as amended, stand part of the Bill."
I am not very happy about section 8 because I do not think the county registrars should be burdened with the many difficult and complex matters which they will be called upon to decide under this Bill. The Minister referred this evening to the large variety of cases and circumstances which can arise under a Landlord and Tenant Act.
Some county registrars may be very good at equity matters. Some may be interested in landlord and tenant legislation, and so on. It does not follow that their experience after a period of ten, 20 or 30 years as county registrars fits them for making decisions on the very complicated cases the Minister thinks are likely to arise under this Bill. It is different in the case of judges who day in and day out and week in and week out deal with some aspect of landlord and tenant law. Landlord and tenant law even when it is consolidated under the proposed new Bill which the Minister indicated will be brought in, will still continue to be fairly complicated, especially because of the history of landlords and tenants, and because of the peculiar views taken by courts in times past on the relations of landlords and tenants, and the sanctity which formerly attached to the interests of landlords as distinct from the interests of tenants in property held under leases.
A county registrar has nothing like the necessary qualifications, the necessary skill, and the necessary experience in practice, to fit him to deal with cases under this Bill. In addition, it is noteworthy that it is intended that all these matters will be dealt with in what is regarded as a summary fashion. The employment of solicitors and counsel will depend very much upon whether or not a county registrar acquires a reputation for awarding fees in the form of costs. The problems will be so great that I cannot see a county registrar, through lack of practice in this branch of the law, being able to deal with them when they arise. What is one to do in the case, say, of the city of Dublin? There is one county registrar. He is registrar to the three circuit courts and, in addition, he is registrar to the Central Criminal Court. Those duties impose a wide variety of obligations upon him and occupy a great deal of his time. I cannot see how the county registrar for Dublin city will be able to deal with all those duties and at the same time deal with all the cases of the buying of ground rent which will occur in the city of Dublin. To me it seems quite absurd.
We have in the city of Dublin one extra circuit court judge. I would suggest that matters of this kind should be dealt with finally so far as the city of Dublin is concerned by the third circuit court judge. In saying that I am not overlooking the fact that the mode of referring these matters to the circuit court judge, or to all three circuit court judges, should be by summary hearing in chambers which will not involve any lengthy pleadings or increase the costs on the person acquiring the fee simple.
I am concerned with the practical aspect of section 8 and the unsuitability —I do not hesitate to say—of many county registrars purely because for years they have not been practising law. It would be impossible for them to cope with the amount of work. What will the result be? I can see an application to the Department of Justice from the County Registrars Association for two things. The first will be for an increase in salary by reason of the new and onerous duties which they will have to perform. They will probably quote what I have said, doubtless with advantage to their case, before an arbitrator. They will quote what the Minister said about the complexity of the landlord and tenant law. As well as the application for a salary increase, there will be an application for more staff in the offices of the county registrars. Make no mistake about it, this will come and this is a matter of which the Minister must be well aware.
Under the Succession Act, from the 1st January next the county registrars will become assistant probate registrars. This is all new work and more of their time is being occupied. In addition to that we are imposing this extraordinarily large increase of work with which they will not be able to cope. If they do not get an increase in salary they will look for a new clerical officer, or a staff officer, or someone of that kind. To my mind, the way to anticipate all that unnecessary expenditure is to hand these matters over to the circuit courts or to the district courts, institutions which are in existence already to deal with anything that is contemplated in this Bill in a summary manner.
Apart from these practical considerations which do not seem to have been adverted to—if they were they have been ignored—it is entirely wrong in principle to have matters relating to landlord and tenant law decided by civil servants. County registrars are civil servants, subject to the jurisdiction of the Minister for Justice. We cannot get away from that. They are civil servants and that is all there is to it. I have no particular objection to civil servants as such—the contrary is the situation—but having regard to the fact that there may be a considerable amount of money involved in these cases, there are matters of law which will fall to be considered under this Bill and I do not think it is right or proper to have persons other than judicial persons or persons with judicial status considering these matters.
One of the great things in our system of justice is that our judges, when it comes to the push, are absolutely independent and demonstrate that quite clearly in the manner in which they make their decisions. County registrars of their nature and because of the nature of their office are not independent persons. I deplore the fact that non-judicial persons are being given the right to make decisions affecting property rights under this Bill. The Minister for Justice in the Dáil referred to the fact that county registrars take judicial decisions, or quasi-judicial decisions, every day. Nothing could be further from the fact. Every time a couny registrar holds an inquiry on the administration of an estate he makes up his report and that is subject to confirmation by the circuit court judge.
There is an appeal to the circuit court judge in this.
I am not concerned about the fact that there is an appeal. The Minister talked earlier about the Constitution. If the Minister were concerned about the law and upholding the Constitution he could not fail in a case like this to have regard to the decision in the case of Farrell and O'Gorman and the Solicitors Act. That case clearly shows that if the determination of rights can be effected by a non-judicial person in the first instance the fact that there is an appeal to the court does not render it proper to have rights which should be the appropriate subject for judicial decision determined in the first place by non-judicial persons. That is the effect of Farrell and O'Gorman. To me it is quite wrong to give this power to county registrars. They do not have the same independence that a Land Commissioner has, or a Special Commissioner of Income Tax. It is wrong to take these public servants and ask them to adjudicate on property matters and rights.
The Minister talked about constitutionality on another matter. I have very little doubt, reading the Constitution in the light of the decision in Farrell and O'Gorman, that this section is completely unconstitutional. I would not, however, speculate any money as to the result of an application to the court to have the section declared unconstitutional because of the trend of decisions which have been reached in the Supreme Court recently upon such matters as drunken driving under the Road Traffic Act, which the court deemed to be a minor offence. It is impossible at this stage in the evolution of our system of jurisprudence to know what way the courts will go from now on in the light of that decision. Personally, I have little doubt that this section, read in the light of the Farrell and O'Gorman decision and against the background of the Constitution, is quite unconstitutional and quite invalid. I deplore this gradual erosion of the rights of the court, this new manifestation of the dislike of the judicial system and of the courts by the executive authority in this country, shown in this section. For practical reasons and for reasons based on constitutional law, I deplore the fact that this device has been adopted to determine these matters under this Bill.
Progress reported.
The Minister will be engaged in the Dáil for the remainder of the evening and I propose that the House should adjourn now until 10.30 tomorrow morning.
Can we have some indication of the business tomorrow?
Mr. Ryan
The Appropriation Bill.
We will not be resuming the discussion on this Bill tomorrow?
I would be very happy to, but, unfortunately, the Criminal Justice Bill is on Committee Stage in the Dáil and I have to go there.
When will we take the motions on the Order Paper?
The Minister for Education has informed me that he will be prepared to take his motion the first sitting in January.
Is there any indication as to when we will sit in January? It seems to me that we ought to sit early in January.
We can discuss that tomorrow, perhaps.
Could we have any indication as to whether it is hoped to finish the Appropriation Bill tomorrow? Previously this has taken two or two and a half days.
I do not think that there is any likelihood that we will finish it tomorrow. I think that the House could consider the situation tomorrow evening and decide whether to try to finish it on Friday or whether it would prefer to sit next week.
The Seanad adjourned at 6.20 p.m. until 10.30 a.m. on Thursday, 15th December, 1966.