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Seanad Éireann díospóireacht -
Thursday, 1 Jun 1978

Vol. 89 No. 5

Landlord and Tenant (Ground Rents) (No. 2) Bill, 1977: Committee Stage.

Section 1 agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."

Can the Minister give us any reason why 1 August was fixed? Does he reckon that that is the date on which the legislation will be through?

The original date was 1 June, but it was amended on Report Stage in the Dáil. It has been fixed to allow time for preparation and promulgation of the necessary fees order under section 23 (2) and the prescribing of the necessary forms for the operation of Part 3 of the Bill.

The Minister is having to get ready for the 250,000 applications that could come on 2 August.

With respect to Senator Cooney, we will deal with that when it arises on his amendment. I can give very good reasons at that time for the attitude I am going to take. I do not want to give away my hand at this stage. I have good news for the Senator on a number of items—maybe not on that one—but I will be taking a very reasonable attitude on this Bill.

Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."

What is a flat?

If I may use the description of the word "dwelling", "dwelling" is defined so as to exclude self-contained flats and premises divided into two or more such flats.

A "flat" is excluded from this Bill and from the other Act. If a person wanted to make a lease of a residence he could not be sure if it was a flat or if it was a dwelling in accordance with the definition. There is a serious difference between the two situations. He could not make a lease of a dwelling but he could make a lease of a flat. It is very important that a citizen coming in to read this legislation should know how to deal with his property. We all understand a three-storey house let in self-contained flats. They are clearly flats in the common meaning of the word. Imagine the situation where you have a mews-type development, which is not uncommon and is growing more common not just in Dublin but in other parts of the country. If you take a building that has a garage attached to it or old stables, part of which is a residence, and it is remodelled and turned into two residences under the one roof and in the same original building, are they flats or residences? If they are flats, the owner can then lease them which could be very important from the point of view of his property management. If they are two separate dwellings he could not lease them.

I take Senator Cooney's point, and it is a very valid point. I understand from the legal advisers that the Rent Acts used the expression "flat" without definition. As to whether it is a flat or not, if the Rent Acts use it without definition it is very difficult to define a flat. There has been no difficulty in relation to the problem Senator Cooney has raised. In recent years flats have on occasion been bought and sold by way of leases that in every-day language would be called ground leases. That is where the fine for the grant of the lease effectively represents the purchase price. The lease is granted for a long term at for example, a rent less than the ratable valuation of the flat or some other leasing arrangement which would have the same effect. It is a moot point whether such leases, or any of them, could carry the right to purchase the fee simple under the Ground Rent Act of 1967. There is a widely held view that there can be no such thing as say four flats built one over the other—and this might answer the Senator's query—all being held in fee simple in relation to the one area of ground. That is one of the difficulties in this respect. I can see the validity of the Senator's point. Maybe the Landlord and Tenant Commission will have a look at it and in some way try to define it in some future legislation. I think the Senator will agree that there is a serious difficulty.

That is why I raised this question. I do not concede that the position under the Rent Acts is altogether analogous because the consequences of the residence falling within the category of a dwelling or of a flat, are vastly different in regards to how the owner of that property can manage it in the future. It would be impossible for a person to know when reading this how he can deal with it. If it is a dwelling he cannot make a lease of it. If he assumes it is a flat, makes a lease and his tenant questions afterwards the category into which it falls and establishes that it is not a flat, then the lease is null and void and that person would have to sell the fee simple to his tenant and whole question of property management would be upset. That would be fair if people knew the position in advance. It is not fair for the Legislature to pass a piece of legislation that is so obscure that a citizen or a lawyer cannot advise on its effect. This is a fundamental defect in this and in the other Bill.

There is validity in what the Senator says. This Bill is confined solely to ordinary dwelling houses, which are defined in section 19 as permanent buildings constructed for use wholly and principally as dwellings. It is not intended to interfere with transactions involving such flats. Whatever the position may be regarding the right to purchase the fee simple of such flats. They are, accordingly, specifically exluded from the terms of this legislation. Philosophically and principally, what Senator Cooney has been arguing is unanswerable if the conclusions arrived at are the same as his conclusions, but that is a matter of debate and a matter for discussion. There is something in what he says. There is no reason why, in the future at least, the matter which he has raised on this occasion should not be attended to. Whether the definition of "flats" should be in this legislation is a matter for——

The difficulty is that "flat" defies definition.

There is no doubt that it could cause certain difficulties. We hope the way we have worded the Bill will not create the difficulties the Senator envisages and that at some future date the Senator's very reasonable suggestion might be attended to.

In any piece of legislation, particularly one as complex and difficult as this, if you are going to exclude something you have to define what you are excluding. Section 19 defines "dwellinghouse" and reads:

This Part applies to land to which Part II applies where the permanent buildings are constructed for use wholly or principally as a dwelling and are so used and such land is referred to in this Act as a dwellinghouse.

To say that flats are excluded is innocuous in this day and age because a "flat" has become an unfashionable word. People now buy or lease "apartments". I am wondering whether, if one leases an apartment, one comes within the confines of this Bill. As there is no definition of "flat", I did not lease a flat; my lease refers to an "apartment". That may sound a bit supercillious but it is an example of an area where the absence of a definition could cause difficulties. For example, a gate lodge—there are gate lodges around the country which are let as flats —is not a flat in the conventional sense where you might have two or three flats to one building. It is a difficulty which should be faced and it is something that should be defined in this Bill, not in a future one, because it could cause a lot of problems.

We have examined the matter thoroughly. On the question of the gate lodge, I do not think that you would have any difficulty about that. It is really the problem of a dwelling upon a dwelling upon a dwelling.

You can have buildings that are divided.

I accept that. What we are trying to do is deal with an immediate problem as a matter of urgency. The Senators have made their point and have made it fairly but in the circumstances I have outlined the Bill is adequate.

Is a gate lodge included in the provisions of the Bill?

That would be included.

If a person who has the type of mews development that I mentioned asks me whether he can make a lease of it or if it will be void under the Landlord and Tenant (Ground Rents) (No. 2) Bill or the No. 1 Bill, what answer can I give him? I should be able to go to the Act and tell him that he can or cannot.

The point does not arise under the Bill. This Bill relates to dwelling-houses. The ordinary five-eights know what a dwelling-house is and, equally, the ordinary five-eighths know what a flat is. The concern with definitions seems a technical matter, with the greatest of respect to the Senator. I agree, and I have said this on numerous occasions in my public life, that if you are looking for definitions they should be in legislation and they should be defined properly in legislation. I still stick by this. The point we are dealing specifically with is dwelling-houses and we are trying to ease a situation which we consider to be of historic significance, and a social problem which has been of concern and which will hopefully be brought to an end by the end of a five-year period and will put 250,000 people in a better situation in relation to the total ownership of their property than they were before. That is the purpose of the Bill. Much as I would like to, I cannot cater for Senator Cooney's point on the question of the definition of the word "flat". The Bill itself relates entirely to dwelling-houses. In this day and age, you can distinguish between a dwelling-house and a flat. Of course, people might say a flat is also a dwelling.

It is under section 19 of the Bill.

It is. It is a dwelling but is it a dwelling-house? When we come to section 19, we can argue that point.

I do not disagree with the Minister when he says that what he wants to do in this Bill is commendable. I agree with him that the right to buy out the ground rent is desirable and we are all agreed with regard to that. My difficulty is that if a citizen reads this Act and applies it to the type of property which I have mentioned, a mews development, he is not going to know whether this legislation and the previous Bill apply to it. Say you had one building with a residence in one part of it and a stables and garage attached, which is remodelled and turned into a residence plus another residence, even with a common entrance, are these two new residences flats or are they dwellings to come within the Act, or are the flats to be excluded from the Act? This is the problem that citizens are going to be faced with.

I do not think there is any difficulty in relation to that. I would think, off the top of my head, that——

That is the difficulty.

Let us be fair about it. The Senator did not consider it necessary to place an amendment to the Bill at this stage.

The drafting of an amendment defies me.

If it defies the Senator we are all in trouble. If I may refer the Senator to the definition of "dwelling", "dwelling" does not include a separate and self-contained flat in premises divided into two or more such flats. Does that take care of the Senator's difficulty?

If you are to apply that, it could exclude a whole terrace of houses.

It could but it does not and that is the reality.

Who says it does not?

If I was giving a legal opinion to Senator Alexis FitzGerald——

They are both on the flat.

I see no difficulty about that. I would consider them to be dwelling-houses if they are on the flat. Flats, one above another, is the difficulty. I will give my own definition of a flat. A flat on a flat, is a situation where you have a flat on a road. For example, if you have ten flats along a terrace they are dwelling-houses. Flats, as I see it, are high-rise or low-rise apartments. In other words a flat, a house or an apartment, a flat, on a flat on a flat.

Two occupied buildings on top of each other.

That would be my definition of a flat.

Why does the Minister not put it in his definition?

Because I think it is too convoluted.

This highlights the difficulty I raised. There is a terrible uncertainty about this, and legislation that is so patently uncertain is also defective.

I do not think there is any uncertainty about it whatsoever. The definition is clear there and quite clearly indicates what it refers to, namely, a dwelling, and it excludes flats. It is as simple as that. The only problem we have is the definition of a flat. Is that not what the Senator is talking about?

It is the Minister's own admission that this so-called clear definition, when he attempted to define it, was convoluted.

The Senator has also indicated——

Dwelling is "house"; the flat is not a house.

I think that would be more ridiculous.

(Interruptions.)

Might I say to the Minister I have come across cases where people have said if you and your wife come and work in the garden and the house, we will give you a flat at the end of the house. Is that not a flat, then, because there is not another flat on top of it?

No, it is a dwelling-house. In this day and age, if somebody comes to work for the Senator—and he provides a lodge at the end of his garden, in those circumstances, I would consider that lodge to be a dwelling-house. You can call it a flat too, but it is not a flat, it is a dwelling-house.

So if there was a lease involved here, they would be able to buy a fee simple from their employer——

In the circumstances, I think the Senator would find that if he employed a person on that basis the general unfortunate attitude to the individual so employed, at the end of his working life, is to get him out of the dwelling-house as quickly as possible. That is the general attitude, which is a pity. I am not suggesting that Senator FitzGerald would ever do a thing like that; in fact I know he would not. But there are people unlike Senator FitzGerald. So I do not think the problem would arise.

An Leas-Chathaoirleach

It has now reached the time at which it is normal for the House to adjourn. Could the Chair please have an indication of what it is intended to do?

It is proposed that we adjourn until 2.30 on Wednesday next, 7 June 1978.

I wonder could we dispose of this section first. Could we pass on to the next section? We have hammered this section to death.

Put it this way, we will not debate it any further. But, rather than pass it on, perhaps the Minister would look at it between now and then and, if he has fresh views, to let us know of them and we will have no more debate next time.

I thank Senators.

Progress reported; Committee to sit again.
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