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Seanad Éireann díospóireacht -
Tuesday, 6 Jul 2004

Vol. 177 No. 10

Residential Tenancies Bill 2003: Committee Stage.

Section 1 agreed to.
SECTION 2.

I move amendment No. 1:

In page 15, line 33, after "on" to insert "the day of its passing save insofar as it involves a charge on public funds, in which case it shall to that extent come into operation on".

The purpose of this amendment is to encourage the immediate enactment of the Bill. The reference to a charge on public funds is made to prevent the amendment being ruled out of order. I hope that the Minister of State at the Department of the Environment, Heritage and Local Government, Deputy Noel Ahern, will consider the issue of efficiency of time scales and consider the amendment in the spirit in which it is intended.

One must be cognisant of the time constraints under which the House is labouring this week and the Order of Business reflects the structured manner in which this business will be conducted. Several important Bills at various Stages await our urgent consideration to ensure their enactment before the summer recess. I encourage the Minister of State to accept this amendment which will ensure a speedy commencement of the Bill once it has passed through the House.

I cannot accept the amendment. Section 2 represents a standard commencement procedure which allows for the practical reality that certain matters must be dealt with before the Bill becomes operational. There must be a strategic approach to the development of the Private Residential Tenancies Board's functions. The initial objective is to establish the board and formally appoint its members after which it will commence its work. Its first task, which will take some weeks, is to secure the registration of landlords on which basis a database will be developed. There is no intention to delay but the reality is that it will take a couple of months before the board can carry out its functions. Landlords must be registered before any dispute resolution can be undertaken, for example. There will be no unreasonable delay and the system will be wholly operational in four or five months but the landlord registration task must be the first focus of the board.

The wording of section 2 is standard and can be found in many other pieces of legislation. I acknowledge that the provisions of some Bills can take months to come into effect but that will not be the case in this instance. The Bill will come into effect quite quickly but not all its provisions can be implemented on day one.

I appreciate the Minister of State's comments and, on that basis, I will withdraw the amendment. However, I would appreciate it if the Minister of State and his officials could take on board the spirit of the amendment to see whether immediate commencement can be enshrined in future Bills so far as that is practicable.

Amendment, by leave, withdrawn.
Section 2 agreed to.
Sections 3 to 5, inclusive, agreed to.
SECTION 6.

I move amendment No. 2;

In page 20, subsection (1)(c), line 18, after “by” where it secondly occurs to insert “registered”.

When notices are posted, they should be registered. It is usually required that a notice of this importance should be served by registered post. For example, important local authority documents relating to planning permission and so on are registered so that people cannot say they did not receive them.

This is an important document and this simple amendment would be in the interests of all parties. I would appreciate it if the Minister of State took the amendment on board because it is important that the person for whom the document is intended receives it. The only way to ensure that is to use registered post, given the movement of people nowadays.

I appreciate the Senator's comments but the reverse is the case nowadays. It was a requirement under many previous Bills that documents had to be served through registered post. However, life has changed and the use of registered post to serve notices has been deliberately omitted from this legislation and other legislation in recent times. For example, serving summonses is no longer done through registered post because it is not as satisfactory as it used to be.

Society has changed significantly. Once upon a time, houses were always occupied but that is no longer the case. If a postman calls to a house to deliver a notice and the person is not in, he will leave a note for him or her to call to the district sorting office to pick up the letter. If he or she knows it is a summons or something else he or she does not want, he or she will not pick it up. Even if a person is in the house and sees the postman coming, he or she will hide behind the curtains.

The use of registered post has been deliberately excluded and this provision is being standardised in legislation because registered post is not working. People are not at home most of the time and, even if they are, they can abuse the system to ensure they do not receive a letter they do not want. The omission of registered post is not an oversight and takes account of practical realities.

Amendment put and declared lost.
Section 6 agreed to.
Sections 7 and 8 agreed to.
SECTION 9.

I move amendment No. 3:

In page 21, subsection (2), line 27, to delete "€250" and substitute "€500".

I have researched penalties in various Acts. A fine of €250 for continuous breaches of the legislation is lenient. For example, the Licensing of Indoor Events Act 2003 set a fine of €500 for continuous breaches. That Act set the penalty for continuing offences at €500, and I propose that the amount of the penalty should act as a real deterrent. I could have gone higher, because nowadays €500 is not that much of a deterrent for some people, but I left it at that level to ensure consistency with the Licensing of Indoor Events Act.

I do not consider that the proposed amendment to increase the fine per day is warranted. The legal advice is that there is no particular standard for daily fines. The amount prescribed in the Bill which, as the Senator says, is up to €250 per day, is in line with other legislation. I accept there may be higher amounts in other Acts but that is the daily fine outlined in the legislation. We think the specific fine on summary conviction is more significant at up to €3,000 or up to six months in prison or both. That should provide a significant deterrent against offences under the Bill.

In reality one will probably find that the daily fine is not imposed that often. It is not automatic — one has to go back to court a second time to get the specific daily fine imposed. What we are putting in here may not be the highest amount one would find in legislation but we think it is appropriate.

The Licensing of Indoor Events Bill may deal with a different scale of major projects, while here we are dealing with the tenancy of a house or apartment. What we have included in the Bill is proportionate to the issue and what will be used in the vast majority of cases is the once-off €3,000 fine. We hope the fine per day is not the one normally used. It is in line with other legislative measures, although it may not be the highest fine.

Amendment, by leave, withdrawn.
Section 9 agreed to.
Sections 10 to 12, inclusive, agreed to.
NEW SECTIONS.

I move amendment No. 4:

In page 24, before section 13, to insert the following new section:

"13.—(1) The landlord shall ensure that—

(a) the dwelling is in a state fit for human habitation, and

(b) the dwelling is in compliance with the Building Regulations, and

(c) the dwelling is in compliance with the Environmental Regulations.

(2) The landlord shall ensure that the dwelling is available for inspection at all reasonable times by authorised officers from the relevant local authority and health board.".

Strong regulations are in place and this amendment is designed to ensure that a landlord can no longer rent out sub-standard accommodation or hovels to people. When people are paying rent they are entitled to a good standard of accommodation and those of us who came up through the local authority system know of far too many situations in our areas where people rent sub-standard accommodation. It is a minority but there is still a small percentage of people who will let out any kind of accommodation if they can get away with it. We must have standards and respect for people and that is why I have tabled this important amendment. It clarifies the situation and should be taken on board.

The amendment provides that rented accommodation can be inspected by the authorised officers of local authorities and health boards. We are often starved of the cash to put sufficient officers in place to carry out inspections and it is important to include this amendment. I would appreciate it if the Minister of State accepted this amendment.

I sympathise with the concerns expressed by the Senator but including a specific requirement and imposing a duty on landlords to ensure fitness for habitation is not really necessary. It is not the practice to insert into one legislative measure an obligation to comply with another legislative measure. Statutory requirements are imposed once only and once they are imposed they should and must be complied with. The Senator is talking about the law but restating it elsewhere does not make it any more mandatory. The law is the law and separate legislation addresses the Senator's concerns. Including a provision dealing with the matter in another Bill is not necessary and is not the normal legal practice. A "to be sure, to be sure" approach does not give the provision any more teeth.

The requirements in question are already provided for in separate legislation and, apart from being unnecessary, it is neither normal nor appropriate to attempt to enact what would be in effect a duplicate statutory provision regarding matters like this. It is the law and I fully agree with the Senator that all landlords should comply with the law and provide good accommodation. However, restating it or putting it into another Act does not give it any extra legal effect.

It gives greater clarity to the Bill when it comes to complying with the building and environmental regulations. I know 98% of landlords are honourable, decent people, but there are cowboys and we must have clarity in the legislation to deal with those. This is an important amendment which should be taken on board.

I am sympathetic to the Senator. In recent years, with the huge demand for housing and higher population levels, there has been pressure on the housing market. There is no doubt that some landlords have let out accommodation which is not very suitable. The best way to improve standards is to improve supply, which is what we have tried to do. Last year 68,000 new housing units were completed and it is a fact that in the past two years there has been more supply in the market.

Rent levels have come down and, as such, a prospective tenant can afford to be more choosy and demanding. I agree that two to five years ago landlords with substandard accommodation could let that out because people did not have better options. However, if we can continue with this level of supply for the next couple of years it will mean that prospective tenants will not have to queue up outside houses waiting for a landlord to arrive. People will be able to have time to think and they can look at what is on offer. Those offering good accommodation will get good quality tenants and those offering bad accommodation will not.

We have had the regulations but enforcement has not been great due to lack of supply. My officials and the commission have been very much involved in dealing with this for a couple of years.

It is intended that when the Bill is enacted the standards regulations will be re-examined and improved. Passing regulations is one thing but the best solution to protect tenants is a better supply of accommodation that will allow people to choose. We all want good quality accommodation but the provisions in Senator Bannon's amendment are already contained in regulations and in other legislation. Inserting such provisions in the Bill will not give it any extra effect because it is already the law. Reinforcing it in any other legislation will not make it clearer or more meaningful. The law is quite clear in this respect. Some landlords have been offering sub-standard accommodation and they should not be doing so, but it is not necessary to reinforce the provisions in this legislation.

I am glad the Minister of State has admitted that the existing legislation has not been enforced to any great extent. Is this not a damning indictment of a party that has been in Government continuously for over seven years? Each September and October, young students from rural areas desperately seek accommodation in Dublin. I have seen accommodation that such students have been offered and one would not house animals in some of it. It is wrong to have such poor quality, sub-standard accommodation in some parts of our cities. It is not happening in Dublin alone, but also in other urban areas. That is why I am pressing the amendment.

These regulations are enforced through local authorities, not directly by the Department. Having been a member of a local authority for some years, however, I do not wish to be overly critical of them. The issue fundamentally is one of supply and we have gone through a few years during which there was a shortage of accommodation.

The issue of students seeking proper accommodation was raised in the Dáil last week. There is a lot of hype every year, come September, about student accommodation, although it has settled down in recent years. There is a lot of student accommodation now, both on and off campus. Legislation has been enacted to give tax incentives for student accommodation and several thousand units of such accommodation have been provided under that measure, which has helped to relieve pressure. Equally, however, I recall hearing a radio programme last September about this issue. On the one hand, parents were panicking, racing around and paying any rent a landlord sought. On the other hand, college accommodation officers were saying they had plenty of space and were asking people to relax because most of the students would be accommodated. Most colleges have accommodation organised so people should calm down rather than rushing around paying whatever price landlords are asking.

There is no need for all the hype and publicity stunts that are usually organised by the students' unions every year. There can be some pressure, but if people take their time these matters can be worked out. The tax incentive schemes have helped to provide much accommodation both on and off campus.

Accommodation standards are regulated by law, although we know they have not been properly enforced. There was a time when people were taking anything that was on offer and some landlords certainly cashed in on that. With a better supply and better standards, prospective tenants now have a wider choice. The best enforcement one can have is the client who must be aware of what is available. Sometimes, clients may be forced by various pressures to make a decision because the money is coming from the rent allowance. If the money was coming from their own pockets they might be more worried. In an era when there was a lack of supply, certain accommodation was let of which none of us could be proud, but matters are improving. The proposed amendment would not help the situation.

I support Senator Bannon's amendment. I have seen some of the pig sties in which some landlords expect tenants to live. Some accommodation is simply not up to standard. Those houses do not comply with any form of building regulations, let alone any standards of comfort, and pose a real risk to people's health and safety.

The amendment spells out clearly how it is proposed to address the problem which does not arise with the vast majority of landlords, particularly those who let out newer properties that are built to sufficiently high standards. However, I have seen old houses which have problems with plumbing, dampness and electrical wiring, for which it is unfair to charge high rents. It is also unfair to expect students to adapt to such an environment that is neither conducive to good health nor to studying. As well as being faced with staying in such accommodation for the academic year, students must often work graveyard shifts at weekends in restaurants, bars and hotels in order to pay the rent.

The amendment is fair in what it attempts to do. The Minister of State is a reasonable person and I appeal to him to consider the amendment favourably.

I spoke about student accommodation on Second Stage because I am extremely concerned about it. The question goes beyond the involvement of local authorities in this issue because there is a big responsibility on third level colleges to provide more campus accommodation. NUI Galway has a land bank of 100 acres, for example — a fact that was mentioned when we met with the college authorities. In fairness to the university, a year ago it obtained permission from Galway City Council to provide more campus accommodation but there was an appeal to An Bord Pleanála and planning permission was turned down. That is an example of the practical problems that can arise in the provision of student accommodation.

The Minister of State is right to refer to the tax incentives, which have provided a good number of new accommodation units. Those I have seen in Galway are very good, and I am sure the same is true of those in Dublin, Maynooth and elsewhere.

I would question the charging of deposits for such accommodation, given that the rent can be quite high. We should maintain contact with the universities and other third level institutions in an effort to provide more campus accommodation. This would provide greater security for students who, in addition, will be living near their college. I hope the authorities at NUI Galway will revert to the planning authority to try to get last year's proposal through and, thus, provide more accommodation.

The Bill places obligations on landlords but, bearing in mind that some universities are also landlords, we should include them. This is a serious issue and parents of students know the difficulties involved in securing accommodation each September or October. There should be a better way of doing this than obliging people to grab the local newspaper and then tear around Galway to answer all the advertisements for student accommodation. If the universities were to take a greater role and accept more responsibility for this issue, we would have a better system. I urge the Minister of State to keep in contact with the third level institutions and secure more campus accommodation in order that people do not have to make a mad scramble around the relevant cities looking for accommodation.

The Minister of State passed the buck when he stated that this issue would be the responsibility of local authorities and health boards. I agree with him and compliment the local authorities on the job they are doing. However, there has been a serious problem in recent years because of the embargo on recruitment of officers. Inspectors were not in place in many local authority areas, particularly the smaller ones. They had major financial problems and were short of funding for other important projects, such as roads, housing and so on.

Will the Minister of State guarantee that a new position of accommodation inspector will be created in every local authority? One can state that someone on a local authority will do this job, but it is not being done. A member of Longford County Council who resigned from Fianna Fáil has for three years called for people to be appointed as inspectors of rented accommodation. No one took on board his requests, queries or demands. Will the Minister of State indicate what personnel will be put in place to carry out such inspections given that the health boards are being wound up and I presume there will be a greater onus on local authorities to carry out such functions?

Some 14,000 or 15,000 bed spaces are provided under the campus and off campus schemes, some of which are located in north Dublin. Until now, local authorities have been responsible for many issues such as standards, registration and so on. This legislation proposes to establish the new tenancies board, which will take over responsibility for registration from local authorities, although it will do so for everything. Nonetheless, there will be greater co-operation. Local authorities have had so many irons in the fire that perhaps they were not undertaking all their duties due to the need to prioritise their activities. However, under the new set up, the private residential tenancies board will work with the local authorities and will give them some of the registration money raised. It is hoped this will encourage local authorities to perform the service for which they are supposedly being paid.

While the onus will always be on the tenant who takes accommodation, the board will be in place to resolve disputes between landlords and tenants. If a tenant is not taking care of his or her accommodation or the landlord is not keeping it repaired and up to the standard at which it was let, people can take their dispute to the board. All of these provisions will mean that standards will improve. Tenants are responsible for being aware of what they are renting, although I accept that when supply was short, it was often a case of taking whatever was going and quickly. However, that situation has already changed.

We want to get away from the days of bad accommodation and the real enforcement officer is the availability of supply and choice, whether there is one enforcement officer or ten in each local authority area. The best people to enforce standards are those taking the accommodation. If such people say "no" and walk away, the landlord will get the message quickly if it happens often enough. We seek to provide more accommodation, more choice and we want prospective tenants to be a bit choosy at times; if the accommodation is not good value for money, they should walk away. Tenants have been doing so for the past two years as they have had a choice.

Amendment put.
The Committee divided: Tá, 14; Níl, 27.

  • Bannon, James.
  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Paddy.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Hayes, Brian.
  • McCarthy, Michael.
  • McHugh, Joe.
  • Norris, David.
  • O’Meara, Kathleen.
  • Phelan, John.
  • Quinn, Feargal.
  • Tuffy, Joanna.

Níl

  • Bohan, Eddie.
  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Cox, Margaret.
  • Daly, Brendan.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • O’Brien, Francis.
  • Ó Murchú, Labhrás.
  • O’Rourke, Mary.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Bannon and U. Burke; Níl, Senators Minihan and Moylan.
Amendment declared lost.

Amendments Nos. 5 and 10 are related and may be discussed together by agreement.

I move amendment No. 5:

In page 24, before section 13, to insert the following new section:

"13. No provision of any lease, tenancy, contract or other agreement (whether entered into before, on or after the relevant date) may operate to discharge or relieve the landlord from any of his or her duties or responsibilities under this Act or which would defeat the spirit of this Act."

This amendment seeks to ensure that, while in a superior position of knowledge, the landlord cannot avoid of any of his or her responsibilities. While the purpose of the provision is to protect all tenants, it is of particular relevance to those vulnerable tenants who would not be in a position to secure legal advice before signing a lease. Such persons include elderly people moving into towns. It is an important amendment.

Amendment No. 10 seeks to insert the words "and do not limit the landlord's statutory obligations under this Act". I propose this amendment in the interests of tenants to ensure that the conditions of a lease cannot be manipulated by a landlord to relieve himself from his duties under the Act. A safeguard of this kind is necessary. We must be more explicit about a matter as central as this even though the Minister of State may reply to the effect that he has covered it already. This is the usual feedback I receive. Both amendments are necessary in the interests of tenants to acknowledge the responsibility of the landlord. Perhaps the Minister of State will consider adopting them.

I never like to see amendments grouped. It is an indication that it is all or nothing and there is less likelihood of an amendment being accepted when it forms part of a group. I have never seen a group of amendments accepted. Perhaps the Minister of State will change his practice on this occasion.

We are in the realm of repetition here. The thrust of this amendment is the same as that of the last. As the Minister of State has pointed out, adequate legislative provisions cover these issues and adequate investment and resources are being put into this area. As Senator Bannon said, the number of rogue landlords is extremely small. We must take on board what the Minister of State has already said about the matter being governed by other legislation.

I am astonished to hear this from my distinguished colleague, Senator Brady, as he lives in the same constituency as I do. If Senator Brady is correct to say the amendments are the same, I support both of them because they look after the interests of vulnerable people. It is astonishing that a government can say it is not interested in having premises inspected. Senator Brady said he was not aware of rogue landlords. Let him look in Parnell Street.

That is not what I said.

He said there were not many of them.

A minority.

But they are very dangerous. We ought to join together and get after them.

That is a different slant.

While I acknowledge that Senator Brady is a good worker in his constituency as he was when he was a member of the local authority, it is time we addressed this situation. In the constituency from which we both come, there is a very large number of asylum seekers and refugees living in sub-standard accommodation which is never inspected for fire hazards, health and safety. If the amendment were made, it would ensure that the agreements in question could not be entered into. While the issue may be peripheral to the legislation, I appeal to the Minister of State, who knows the area very well, to take a look at Parnell Street and have its buildings inspected for fire, health and safety. For God's sake, let the Government be on the side of the vulnerable.

My attention has been drawn by Senator McCarthy to a section of the Bill to which we may not come. As I hope we will, I will not speak for long on it. Following in the wake of the Minister for Social and Family Affairs, Deputy Coughlan, who removed rights of transport from gay couples, it is proposed to remove any right in defiance of European laws from same-sex couples to inherit tenancies. The Bill demonstrates a very uncaring attitude on the part of the Government to vulnerable citizens, which is a disgraceful position for any government to take.

I support the sentiments expressed by both of my Opposition colleagues. It is important for the Government to lead the way in protecting the marginalised and vulnerable in society. We have recently seen in the Equality Act 2004 and the decision of the Minister for Social and Family Affairs on the spousal travel pass a pattern whereby the Government explicitly excludes same-sex couples. This is a retrograde and discriminatory step and I hope we reach section 35 to allow us to deal with the particular issue in greater detail. I hope Senator Bannon and others will be cognisant of the importance of the section which reflects on whether the Government is caring and willing to legislate for everybody. Equality is for everyone.

I have already amended section 18 in the Dáil to clarify that additional obligations on a tenant by means of a lease or tenancy agreements may only be imposed if consistent with the Bill. A landlord may not transfer to the tenant any of his or her statutory obligations under the Bill. As the matter was discussed in the Dáil and section 18 makes the provisions Senator Bannon seeks to include, amendments Nos. 5 and 10 are unnecessary. I ask the Senator to consider withdrawing them.

They are not unnecessary. A landlord has duties under the legislation and the amendments seek to protect the types of vulnerable tenant in our society I described earlier. The Minister of State is not taking into consideration the concerns of conscientious people who feel the most vulnerable must be protected. As the amendments are about protecting the most vulnerable in society, I appeal again to the Minister of State to take them on board.

While I agree with the Senator on those issues, the particular amendments with which we are dealing concern the possibility of a landlord transferring to a tenant his or her statutory obligations, which is already covered by section 18. Amendment No. 5 was tabled on Committee Stage in the Dáil and dealt with in another way and I ask the Senator to consider withdrawing it.

Amendment, by leave, withdrawn.
Section 13 agreed to.
SECTION 14.

Amendments Nos. 6 and 17 are related and may be discussed together by agreement.

I move amendment No. 6:

In page 24, between lines 41 and 42, to insert the following subsection:

"(3) Such action includes, but is not limited to—

(i) harassment;

(ii) intimidation;

(iii) abusive or threatening behaviour; or

(iv) retaliatory notice to quit.".

Section 14 contains very important provisions which should be made clearer. Ultimately, legislating is about clarity. As it should be spelt out what exactly shall constitute action to affect adversely peaceful occupation, I have proposed an unexhaustive definition.

Amendment No. 17 proposes a new section which is designed to ensure that where a landlord tries to end a tenancy on foot of a complaint by a tenant, a termination shall be deemed invalid. The amendment is vital to ensure that tenants who make legitimate complaints will not suffer consequences from seeking to have their statutory rights upheld. This approach has worked very well in other countries, particularly Australia. I will be disappointed if the Minister of State does not share the sentiments behind my proposal.

These two amendments are valid. They should be taken on board to strengthen the legislation. I did some research into legislation in other jurisdictions before I tabled them and I would appreciate if the Minister of State would accept them.

It would not be beneficial to insert examples of a few matters that might be deemed to involve penalisation. There is a danger that the insertion of such examples might detract from the effectiveness of the provision. Section 14, as it stands, provides the most comprehensive definition of penalisation possible in terms of any action that adversely affects the tenant enjoying peaceful occupation of the dwelling by specifying that such action may constitute penalisation, even if it involves action by the landlord that would otherwise be legal.

This section was extended on Committee Stage in the Dáil to cover complaints to public authorities generally or to the gardaí. This will ensure that matters such as complaints about accommodation standards or fire safety as well as applications to the Revenue Commissioners for tenant's tax relief are covered under the anti-penalisation provisions.

If legislation includes the words "any action", that covers everything. The alternative is to list matters and the board or mediator involved may decide that such action applies to only those matters listed and that another matter that may arise is specifically excluded. The legislation provides for any action and we consider that term to be all-embracive. While I understand what the Senator is trying to achieve, there is a danger that what he proposes, even if it well meaning, might be interpreted later as a watering down of the provision.

I find the Minister of State's argument quite persuasive. The phrase "any action" is a portmanteau — it covers everything. On this occasion I agree with the Minister of State that by including this specification, we are, at best, creating a hierarchy and suggesting that these are the most important and, at worse, as the Minister of State said, suggesting to a person who will interpret this legislation that matters outside this list were not actively contemplated by the legislation. I will support the Minister of State in this regard.

Amendment, by leave, withdrawn.
Section 14 agreed to.
Section 15 agreed to.
SECTION 16.

Amendments Nos. 8 and 9 are related to amendment No. 7 and they may be discussed together by agreement.

I move amendment No. 7:

In page 26, paragraph (k), line 50 and 51, to delete “, in his or her discretion,” and substitute “not unreasonably”.

The Bill, as drafted, allows a landlord freedom to refuse to allow a property to be sublet. Amendment No. 7 proposes to change that provision to ensure that a landlord can only refuse to allow a property to be sublet on reasonable grounds.

With regard to amendment No. 8, section 16 requires a tenant to give notice of any person who stays in the property concerned, whether it be for one night or six months. It is absurd to require tenants to notify landlords if they have visitors staying for a weekend, a night or longer. I appreciate the intent behind the section, but to impose an absolute requirement of notice is a measure too far. My amendment will require a tenant to notify a landlord where a person is staying with the tenant for longer than one month. We all have a right to privacy and that right should be respected. It is important that should be the case in this legislation, and that is the purpose of these amendments. I ask the Minister of State to consider accepting them.

In regard to my amendment No. 9, it is an excessive burden to require a tenant to compensate a landlord for his or her costs in deciding whether to agree to a subletting. I would appreciate if the Minister of State looked favourably on these amendments.

I do not intend to accept them. The absolute right to withhold consent to subletting was recommended by the Commission on the Private Rented Residential Sector. It is appropriate in the context of the four years' security of tenure provided under this Bill and because it is accompanied by a provision in section 186 whereby tenants bound by a fixed term agreement are given the absolute right to terminate the tenancy where consent to subletting is refused.

We are talking about a case where a house or an apartment is let to a tenant and he or she wants to move away and sublet it to someone else. In such circumstances, the landlord has an absolute right to say no to such a subletting. The landlord would never have met the person whom it is proposed would move in. It is different if the person concerned was living in the property. For example, if I and one of the Senators were living in a property and I, as the licensee decided to move away, that would be a different situation because the landlord would know the Senator and he would have partaken in an apprenticeship. The same would apply if I was living in an apartment and then shared it with one of the Senators. If the landlord had a problem with the Senator, the landlord has a means of redress by approaching me because the original tenant is still on site. However, what is proposed relates to a case where, say, a tenant moves to live in London and sublets the property to someone else who is unknown to the landlord. In such a case it is only right and proper that a landlord can refuse consent to such a subletting and if he does so, the tenant has a right to end the tenancy.

With regard to amendment No. 8, it is clear that the provision is intended to cover only those for whom their rented dwelling is their principal place of residence. We are not being ridiculous here. Nobody wants to know about who stays overnight, over a week or anything like that, or if a person is visiting for a few nights and is not changing his or her place of residence. It is up to the person concerned to decide if he or she is visiting for two or three nights or changing his or her place of residence. If a person is changing his or her place of residence, it is appropriate that the person should let the landlord know.

I accept what the Minister of State has said and on that basis I will withdraw my amendment.

Amendment, by leave, withdrawn.
Amendment No. 8 not moved.
Section 16 agreed to.
Amendments Nos. 9 and 10 not moved.
Sections 17 to 26, inclusive, agreed to.
SECTION 27.

Amendments Nos. 12 to 15, inclusive, are related to amendment No. 11 and they may be taken together by agreement.

I move amendment No. 11:

In page 31, line 17, to delete "6 months" and substitute "three months".

Amendment No. 11 seeks to delete "6 months" and substitute "three months". Six months is a relatively long time and is such that a bad or ill-willed landlord could allow a tenant to remain for five months in a premises and then terminate the tenancy before that tenant is afforded any rights. This legislation is all about the rights of tenants. Over the years it has been evident that tenants have been neglected. We already mentioned students who come to the capital to look for accommodation and we have neglected them over the years. In the interest of all parties involved, I propose that the six month qualification period be reduced to three months. Everyone would benefit from this.

The purpose of amendments Nos. 12 to 15, inclusive, is to afford tenants greater security of tenure. They are designed to ensure that tenants asked to leave a premises before they are afforded rights under this legislation are given a reason therefor in writing. If one sacks an employee or terminates his employment, one must give notice in writing. It is important that a tenant knows why he or she is being asked to leave and it benefits everyone when there is clarity in this regard. These amendments are important and the Minister of State should find a way to take them on board. They are self-explanatory and will improve the legislation.

The amendments pertain to one of the most fundamental parts of the Bill and I am not in a position to accept them. The Bill lays down clearly that a probationary period of six months applies before one can qualify for a further three and a half years of security of tenure. The six month qualifying period was recommended by the commission and it represented a reasonable compromise between the two arguments. The landlords wanted a much longer probationary period and advocate groups such as Threshold wanted a shorter one. This issue was discussed at length by the commission and it agreed on six months. To change this would undermine one of the core principles that helped to achieve the consensus that exists. We have been trying to proceed in such a way that landlord and tenant groups regard this as a balanced Bill to which both could sign up and such that the advantages to both sets of groups are evident.

Over the years, tenants' rights have been lacking, to put it mildly. This Bill is not as good as the legislation in many European countries, but it is a major step forward from previous legislation. I hope that in the coming years people will move forward another step from what is proposed.

Amendment No. 13 seeks that landlords should provide a written explanation for ending a tenancy within the six-month period. However, it is fundamental to the legislation that landlords be given six months in which they have the right to terminate a tenancy without providing a written explanation. This is part of a very fine balance which, if changed, would undermine one of the core principles of the Bill and, therefore, I cannot accept the amendment.

I am disappointed that the Minister of State does not seem to be interested in accepting any of these important amendments, which would improve the legislation. He would have considered at least some of them in the past. If he listened, we would have better legislation. In both the European and local elections in June, the electorate sent a message to the Government that it is not listening. We have had further evidence of this today.

Amendment, by leave, withdrawn.
Amendment No. 12 not moved.
Section 27 agreed to.
SECTION 28.
Amendments Nos. 13 to 15, inclusive, not moved.

I move amendment No. 16:

In page 31, after line 43, to insert the following section:

"(5) It shall not be lawful to take action for the primary purpose of avoiding the application of this part.".

One of the important points pertaining to any legislation is that the very wide-ranging views heard during consultation, particularly in respect of an area such as that under discussion, be taken into consideration. Ultimately, legislation is better because of consultation.

This amendment proposes the following wording: "It shall not be lawful to take action for the primary purpose of avoiding the application of this part." Threshold recommended the introduction of a general anti-avoidance provision. I appeal to the Minister of State to look favourably on this amendment.

I appreciate and understand the point of the amendment but it is not necessary as its purpose is achieved more effectively by other provisions in the Bill, including some amendments tabled in the other House.

The Deputy is proposing a prohibition, worded in very broad terms, of any action for the purpose of avoiding the application of Part 4. The amendment is too general. It is also in conflict with other sections, such as section 25. It is a case of including either a general sentiment or a specific measure to block people with specific avoidance measures. I understand what Deputy McCarthy is trying to do, but we have tried to determine the loopholes that exist and we have included specific measures to close them off.

I reiterate the important point that we should take cognisance of the views of independent interest groups. They contribute enormously and if the wider interpretation of their views were enshrined in the legislation today, it would be a good day for all of us. On the basis of what the Minister of State said, I withdraw my amendment.

Amendment, by leave, withdrawn.
Section 28 agreed to.
Sections 29 to 34, inclusive, agreed to.
Amendment No. 17 not moved.
Sections 35 to 38, inclusive, agreed to.
SECTION 39.

I move amendment No. 18:

In page 38, subsection (3)(a)(ii), line 16, to delete “as husband and wife”.

We are living in 2004 and things have changed. I ask that we delete the words "as husband and wife". People have other arrangements and this requirement is not necessary. I hope the Minister will delete it to accommodate everybody.

I would like to address this matter. My friend and colleague, Senator McCarthy, will speak on the matter because he drew it to my attention and has had correspondence on it. I will leave the substance of the argument to him.

This definition of spouse and the reference to a person who is not a spouse or tenant but who cohabited with a tenant as husband and wife is clearly and explicitly directed, among other groups, at the gay community. This is a specific targeting and is unworthy of the Government. I wonder what its excuse will be this time.

Senator Norris, it might be more appropriate for you to speak on the section. We will deal with the amendment first.

In that case, I am happy to be guided by you, Chairman.

I will open the debate on the section.

That is fine. I will sit down. I want to have time to discuss the substance of the matter.

Does the Minister of State wish to respond to the amendment?

I have information which might help the Members. Section 39 originally provided that on the death of all the tenants of a Part 4 tenancy, the Part 4 tenancy would no longer exist. When this section was discussed on Committee Stage in the Dáil, considerable concern was expressed by Deputies as to the position in the case of dependent family members where the sole tenant had died. I pointed out that the situation should not arise since the other occupants should have entered into a joint tenancy at the outset. That is the key to these situations. If people enter into a joint tenancy at the outset, they have full legal protection.

That is rubbish.

If they fail to make a joint agreement at the outset, they should do so during the existence of the deceased person's tenancy.

The amendment specifically proposes the deletion of the reference to husband and wife.

In that case, I cannot accept the amendment.

I am disappointed that the Minister of State cannot accept the amendment. The requirement is unfair and discriminatory. The Minister of State should accept the amendment.

Amendment, by leave, withdrawn.
Question proposed: "That section 39 stand part of the Bill."

This issue arose from correspondence I received. I wish to bring the matter to the attention of the Minister of State because I know he accepted an amendment to this section in the Dáil.

The conditions under which a person may inherit tenancy rights are clear. There is a clear indication that same sex couples are excluded. This continues a pattern of exclusion which was sponsored by the Minister for Social and Family Affairs when the free travel pass scheme was not extended to partners in same sex unions.

A judgment in this regard was made by the European Court of Human Rights in the Karner case. This section is clearly in breach of the European Convention on Human Rights. The issue dealt with in the judgment related to a gentleman called Mr. Karner, who brought the issue to various courts in Austria until the Austrian Government appealed the case to the Supreme Court and it then went to the European Court of Human Rights. The European court held, by six votes to one, that there had been a violation of article 14 of the convention, which prohibits discrimination, taken with article 8, which deals with respect for one's home.

This is a significant issue. It is incumbent on the Minister to take cognisance of the disposition of people in these circumstances and of the European Convention on Human Rights. Are we to breach two important aspects of the convention? We are dealing with fundamental aspects of people's rights. I ask the Minister of State to look favourably at this area.

I know there has been some communication arising from the fact that the issue was dealt with in the Dáil. However, there is an obligation on the Minister of State to conform to the European Convention on Human Rights and to show that the Government legislates for everybody and that equality is not one-sided but is for everybody. This issue relates to the Government's duty to citizens of this republic.

I am grateful to Senator McCarthy for highlighting this issue. It is a fundamentally important one. The Minister of State has not had an opportunity to address the issue fully. Nevertheless, I am glad he had an opportunity to put his first few paragraphs on the record because they worry me. The Minister of State said it is up to the people involved to enter into a joint tenancy agreement. That itself is a discriminatory attitude. Would he say to a widow, for example, that proper provision was not made? Widows automatically inherit by virtue of their status. We are talking about people with no status who are not recognised at present.

There is case law on this matter in this country. A very courageous man had lived with his partner for 30 years or so and after the death of his partner, the landlord sought possession of the house, although this man had been contributing financially to the tenancy. The case went to court and judgment was found against him. However, the court, in its judgment, suggested that this was a form of unfairness because the law was anomalous. A situation is known to exist and known to be unfair.

As Senator McCarthy said, we already have a European judgment in the matter. The case of Mr. Karner was directly parallel to the one which occurred in Sandymount a few years ago and which went to trial here. Curiously, in Austria, which is a very conservative country, the lower court found in favour of the surviving partner, as did the next court. It was the conservative Supreme Court which overturned the judgments of the two lower courts. The case then went to the European court which decided in favour of the surviving partner on 24 July 2003, despite the fact that the plaintiff in the case had died. The European Court of Human Rights stated that the issue was one of such a fundamental nature with regard to human rights that it would hand down a judgment, despite the death of the plaintiff and the refusal of his mother, who was the nearest person in law, to continue the case. Application was made by interested parties of a philanthropic nature from outside the family circle and from outside the country and the European court took the matter so seriously that it heard this application and found in favour of the estate of Mr. Karner. The reason given was the question of proportionality. This is an interesting judgment, which the Minister of State should consider. The court determined that there was no requirement on the part of the state — nothing needed to be protected in the interest of the state — to make this exclusion.

I remind the Minister of State of the words of a former colleague of his, spoken in this House. The former Fianna Fáil Minister for Justice, Mrs. Máire Geoghegan-Quinn, said that she would need to have very clear, cogent, rational and factual arguments placed before her if she was to discriminate in any sense against an Irish citizen. Is the Minister of State withdrawing from that position of principle in the name of Fianna Fáil and saying he is prepared to introduce discrimination?

There is currently a discussion about the nature of the family and the Minister of State invoked the word "family" in his partial reply. It is necessary, as many elements in society are doing, that we look at the definition of the family and accept that people who maintain households together, forgetting about the sexual activities that may take place between them, create a relationship that has rights that should be enjoyed by a bereaved partner without this lingering echo of ideological or religious prejudice. Prejudice is all that could sustain opposition to what is being said on this side of the House and there are many decent people on the other side of the House who feel the same.

Progress reported; Committee to sit again.
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