Chairman:
This meeting has been convened to consider the Property Services (Regulation) Bill 2009. No apologies have been received. I welcome the Minister and his officials. A grouping list has been circulated. I ask members to turn off all mobile telephones completely, as they interfere with our systems even when on stand-by. Will we agree to continue the meeting until we finish the amendments?
Minister for Justice and Equality (Deputy Alan Shatter):
Yes, if we can achieve that.
Chairman:
We will see what we can do.
Section 1 agreed to.
SECTION 2
Chairman:
Amendments Nos. 1, 12, 13, 19, 70 to 72, inclusive, and 97 are related and may be discussed together.
Deputy Alan Shatter:
I move amendment No. 1:
In page 12, subsection (1), between lines 11 and 12, to insert the following:
““Commercial Leases Database” means the Commercial Leases Database established under section 87(1);
“commercial property” means property that is used for the purposes of business within the meaning of section 3 of the Landlord and Tenant (Amendment) Act 1980;
“commercial property lease” means an instrument creating a tenancy in respect of commercial property;”.
The amendments to which the Chairman referred are concerned with giving the Property Services Regulatory Authority, PRSA, additional statutory responsibilities for publishing residential property sales prices and maintaining a new commercial leases database. Arising from data protection concerns, the sales prices of residential properties have not been published for some time. Recognising that the resultant lack of transparency in the residential property market is not in the public interest, the Government made a commitment in the programme for Government to improve the quality of information available on the housing market by requiring that the selling price of all dwellings be recorded in a publicly available national housing price database.
To address this issue, amendment No. 19 gives the PRSA the statutory function of publishing residential property sales prices and amendment No. 17 inserts a new section 86, which will contain more detailed provisions. Section 86(1) will provide for the maintenance and publication by the authority of the particulars of residential property sales prices, including addresses, prices paid and dates of sale. The published data will not contain the vendors’ names. Section 86(2) will provide that the data may relate to sales that have taken place prior to the enactment of this legislation. Section 86(3) will require the authority to make the data available to the public free of charge on its website.
The data on sales prices will be provided to the authority by the Revenue Commissioners, who are already in receipt of this information for stamp duty purposes under existing stamp duty legislation. The Revenue Commissioners do not consider that the publication of this data falls within their strategic objectives, but they are willing to transfer the data to the authority if that is permitted by legislation. Amendment No. 97 amends the Stamp Duties Consolidation Act 1999 to enable the Revenue Commissioners to provide this information to the authority.
As regards the issue of data protection, the legal advice available to me is that, once a statutory obligation to publish the data is imposed on the authority, it will not be necessary to amend the Data Protection Acts.
Amendment No. 13 inserts the definition of “residential property” into section 2.
Turning to the commercial lease database, amendments Nos. 71 and 72 are key amendments to implement a recommendation made by the working group on transparency in commercial rent reviews. In question is the establishment of a public database, which will include relevant details of commercial letting agreements and rent reviews.
Amendments Nos. 71 and 71 insert new sections 87 and 88 in the Bill while amendments Nos. 1 and 12 insert the necessary defintions into section 2.
Amendment No. 19, which I mentioned earlier, also extends the functions of the authority to include the establishment and maintenance of the database.
From a policy perspective, the primary purpose of the new database is to ensure that accurate information will be available to assist in ensuring that rent review assessments are based upon true comparisons of rent levels. I believe that all parties can agree that the availability of such information should impact favourably on the conduct of rent reviews and also on the operation of the letting market.
Subsection (1) of the new section 87 provides that the Property Services Regulatory Authority shall establish and maintain a commercial leases database. Subsection (2) sets out the information which is to be contained within the database. Certain basic details such as the date of the lease and the term of years of the lease will be provided to the authority by the Revenue Commissioners. Additional information will be provided by the tenant within a specific period of time. That information is set out in subsection (1) of the new section 88. It relates to matters such as the availability of rent-free periods, any fitting-out time allowed, any fit-out allowances that might be granted and any capital contributions that may be made in respect of the property. Provision is also made to ensure that relevant information is provided to the authority when the rent has been reviewed. It will be open to the authority to prescribe further particulars by regulations in addition to those set out in the section and this will be a useful tool in enabling the authority to respond in a flexible way in the event that it becomes desirable to expand the range of data to be made available to interested parties.
A particular problem which arises in the context of rent reviews relates to the impact which confidentiality clauses have on the free flow of information. It would seem to be the case that such clauses are being relied upon to conceal information about the true market rent for the transaction. This relates to the fact that the true value of the rent agreed, when all relevant factors and concessions are taken into account, may differ significantly from the rent level appearing on the face of the lease. It would be completely counter-productive if confidentiality clauses were allowed to influence the range of information provided to the authority. Accordingly, provision has been made which ensures that the tenant’s obligation to provide additional information will apply irrespective of any confidentiality clause that might be contained within the lease.
There are two final provisions to which I would like to draw to the Deputies’ attention. Subsection (3) of section 87 provides that the database will be available for inspection on payment of a fee which will be set by the authority. However, it is not intended that the fee charged will place an unnecessary burden on those accessing the database. Subsection (4) of section 88 provides that a person who, without reasonable excuse, contravenes subsections (1) or (2) of that section is guilty of an offence and liable, on summary conviction, to the payment of a fine.
I would like to make reference to the provision of information by the Revenue Commissioners to the Valuation Office. As already indicated amendment No. 97 amends the Stamp Duties Consolidation Act 1999 to enable the Revenue Commissioners to provide data to the Property Services Regulatory Authority. I should explain that amendment No. 97 also introduces a new section 137C into the Stamp Duties Consolidation Act 1999 to provide for the furnishing by the Revenue Commissioners to the Valuation Office of such information as may be required by that office in the performance of its statutory functions.
The core business of the Valuation Office is the provision of accurate, up-to-date valuations of commercial and industrial properties to ratepayers and rating authorities and it is currently engaged in an important programme for revaluation of commercial and industrial properties throughout the country. The Valuation Office also provides a valuation consultancy service to other Departments, local authorities, health boards and the Revenue Commissioners.
To carry out its functions effectively, it is essential that it has as much information as possible on market values and rents in property transactions, all the more so given recent price movement, volatility and difficult trading conditions in the property sector. Much of the information that is needed already exists as it is included in returns made to the Revenue Commissioners under their e-stamping system.
Copies of what are called their “particulars delivered forms” were up to recent years made available to the Valuation Office by the Revenue Commissioners but this practice was discontinued because of concerns relating to data protection legislation and specific statutory provision is required to allow the practice to resume.
The Valuation Office provides a valuation consultancy service for public bodies and the provision of information that is already in the Revenue Commissioners’ possession will enhance the service the Valuation Office can provide. It also meets the Government agenda of reducing unnecessary costs on taxpayers by allowing a public body to share information that it already has with another public body which requires it for the performance of its statutory functions.
Chairman:
Are there any comments on that amendment?
Amendment agreed to.
Chairman:
Amendments Nos. 2 and 3 are cognate and may be discussed together.
Deputy Alan Shatter:
I move amendment No. 2:
In page 12, line 17, to delete “partner” and substitute the following:
“civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010”.
Amendments Nos. 2 and 3 are purely technical amendments. They take into account the enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and replace the references to “partner” in the definition of “connected relative” with reference to a civil partner under the 2010 Act. They are straightforward amendments to ensure that everyone is treated with equality.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 3:
In page 12, line 20, to delete “partner” and substitute the following:
“civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010”.
Amendment agreed to.
Chairman:
Amendments Nos. 4, 9, 55, 62 and 64 to 67, inclusive, are related and may be discussed together.
Deputy Alan Shatter:
I move amendment No. 4:
In page 13, subsection (1), line 28, to delete “partner, employee or agent or former partner” and substitute the following:
“principal officer, employee or agent or former principal officer”.
We are taking amendments Nos. 4, 9, 55, 62, 64 to 67, inclusive, together. These are drafting amendments. A new definition of “principal officer” of a corporate body or partnership was inserted in section 2 on Committee Stage in the Seanad and these drafting changes are consequential following on from that definition.
Amendment agreed to.
Chairman:
Amendments Nos. 5, 15, 16, 18, 20 to 22, inclusive, and 24 to 34, inclusive, 59, 76, 84, 93 and 94 are related and may be discussed together.
Deputy Alan Shatter:
I move amendment No. 5:
In page 15, subsection (1), line 38, to delete “Law Reform” and substitute “Equality”.
These are also drafting amendments. They reflect changes in the titles of Ministers. They replace references to the “Minister for Justice and Law Reform” with “Minister for Justice and Equality”; “Minister for Enterprise, Trade and Employment” with “Minister for Jobs, Enterprise and Innovation”; and “Minister for Finance” with “Minister for Public Expenditure and Reform”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 6:
In page 15, to delete lines 40 to 42 and substitute the following:
“(a) the issue, to the licensee, of—
(i) advice (including advice relating to participation in a professional competence scheme),
(ii) a caution,
(iii) a warning, or
(iv) a reprimand,
or”.
This is a drafting amendment aimed at improving the layout of the definition of “minor sanction” in the Bill.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 7:
In page 15, subsection (1), to delete line 46, and substitute the following:
“estate, or any other complex or estate containing residential units within the meaning of the Multi-Unit Developments Act 2011;”.
This is a technical amendment. It takes account of enactment of the Multi-Unit Developments Act 2011 earlier this year. It will ensure consistency between the definition of “multi-unit development” in this Bill and the definition contained in the 2011 Act.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 8:
In page 16, subsection (1), to delete lines 3 and 4.
This is another drafting amendment. It deletes the definition of “owner”. The definition is no longer required as a result of the enactment of the Multi-Unit Developments Act 2011.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 9:
In page 16, line 38, to delete “partner, employee or agent or former partner” and substitute the following:
“principal officer, employee or agent or former principal officer”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 10:
In page 17, line 4, after “provision” to insert “, for consideration,”.
This is also a drafting amendment. It amends the definition of “property service” in order to make it clear that the Bill’s provisions apply to property services provided for consideration, in other words, for reward. The Bill is not intended to prevent a person from selling his or her own home or prevent a parent from letting a house on behalf of an adult child, or an adult child from selling a house on behalf of a parent. We thought there was a need to provide additional clarity on this issue.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 11:
In page 17, subsection (1), to delete lines 20 to 24 and substitute the following:
““property services employer” means a person (referred to in this definition as “the employer”)—
(a) who is an individual who provides a property service where an employee of the employer may also provide such service on behalf of the employer,
or
(b) whose employees or principal officers provide a property service on behalf of the employer,
and whether or not the employer engages in any other business;”.
This amendment clarifies the definition of “property services employer”. It includes not only a company or partnership on whose behalf principal officers, that is, directors or partners, and employees provide property services, but also an individual who provides a property service and has employees providing such services.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 12:
In page 17, subsection (1), between lines 28 and 29, to insert the following:
““relevant commercial lease” means a commercial property lease entered into on or after the commencement of section 87;”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 13:
In page 17, subsection (1), between lines 32 and 33, to insert the following:
““residential property” means a property that is used as a self-contained residential unit and includes any land appurtenant to it or usually enjoyed with it;”.
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3
Chairman:
Amendments Nos. 14 and 69 are related and will be discussed together.
Deputy Alan Shatter:
I move amendment No. 14:
In page 19, subsection (1), line 1, to delete “does” and substitute “shall”.
Like some of the previous amendments, these are drafting amendments. They replace the word “does” with the word “shall” in sections 3 and 83.
Amendment agreed to.
Section 3, as amended, agreed to.
Sections 4 and 5 agreed to.
SECTION 6
Deputy Alan Shatter:
I move amendment No. 15:
In page 21, line 25, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 6, as amended, agreed to.
Sections 7 and 8 agreed to.
SECTION 9
Deputy Alan Shatter:
I move amendment No. 16:
In page 22, subsection (2)(c), line 2, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10
Deputy Alan Shatter:
I move amendment No. 17:
In page 22, lines 34 to 38, to delete subsection (4) and substitute the following:
“(4) Of the members of the Authority—
(a) not more than 3 shall be persons who, in the opinion of the Minister, are representatives of persons who provide property services,
(b) not less than 3 shall be persons who, in the opinion of the Minister, have knowledge of, or experience in, consumer affairs, and
(c) one shall be an officer of the Minister.”.
Amendment No. 17 deals with a matter which was raised during earlier Seanad discussions on the Bill. It adds a new paragraph (b) to section 10(4) which specifies that not less than three members of the authority shall be persons who have knowledge of, or experience in, consumer affairs. Before leaving the issue of membership of the authority, I should say that there appears to be some overlap between the disclosure of interest requirements in sections 15 and 16 and those in the Ethics in Public Office Acts. The Office of the Attorney General is examining whether the Bill should be amended and I may, depending on the advice of Attorney General, bring forward amendments on Report Stage to eliminate the identified overlaps.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 18:
In page 23, subsection (12)(b), line 47, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 10, as amended, agreed to.
SECTION 11
Deputy Alan Shatter:
I move amendment No. 19:
In page 25, subsection (2)(n), line 43, to delete “and” and substitute the following:
“(o) maintain and publish particulars of residential property sales prices,
(p) establish and maintain the Commercial Leases Database, and”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 20:
In page 26, subsection (4), lines 9 and 10, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 11, as amended, agreed to.
Sections 12 and 13 agreed to.
SECTION 14
Deputy Alan Shatter:
I move amendment No. 21:
In page 28, subsection (1)(b), line 6, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 22:
In page 28, subsection (3), line 12, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 14, as amended, agreed to.
Section 15 agreed to.
SECTION 16
Chairman:
Amendments Nos. 23, 35, 42, 43, 47 to 49, inclusive, 52, 56, 58, 60, 61 and 74 are related and will be discussed together.
Deputy Alan Shatter:
I move amendment No. 23:
In page 30, subsection (2), lines 12 and 13, to delete “fine not exceeding €5,000” and substitute “class A fine”.
These amendments are drafting changes necessitated by the coming into force of provisions of the Fines Act 2010 on 4 January last. Under Part 2 of the 2010 Act, summary fines must in future be specified not in monetary terms but by reference to five new classes of fines, that is classes A to E. For this reason, all references in the Bill to fines up to €5,000 must be replaced with a reference to a class A fine.
Amendment agreed to.
Section 16, as amended, agreed to.
Sections 17 to 19, inclusive, agreed to.
SECTION 20
Deputy Alan Shatter:
I move amendment No. 24:
In page 33, subsection (3)(a), line 18, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 25:
In page 33, subsection (3)(b), line 24, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 20, as amended, agreed to.
SECTION 21
Deputy Alan Shatter:
I move amendment No. 26:
In page 34, subsection (1), line 10, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22
Deputy Alan Shatter:
I move amendment No. 27:
In page 34, subsection (1), line 18, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 28:
In page 34, subsection (3), line 27, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 29:
In page 34, subsection (4), line 30, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 30:
In page 34, subsection (6)(b), line 41, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23
Deputy Alan Shatter:
I move amendment No. 31:
In page 35, subsection (2), line 22, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 23, as amended, agreed to.
Sections 24 and 25 agreed to.
SECTION 26
Deputy Alan Shatter:
I move amendment No. 32:
In page 37, subsection (4), line 46, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 26, as amended, agreed to.
SECTION 27
Deputy Alan Shatter:
I move amendment No. 33:
In page 38, line 7, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 27, as amended, agreed to.
SECTION 28
Deputy Alan Shatter:
I move amendment No. 34:
In page 38, subsection (1)(b), lines 18 and 19, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 28, as amended, agreed to.
SECTION 29
Deputy Alan Shatter:
I move amendment No. 35:
In page 38, subsection (2)(a), line 39, to delete “fine not exceeding €5,000” and substitute “class A fine”.
Amendment agreed to.
Section 29, as amended, agreed to.
SECTION 30
Deputy Alan Shatter:
I move amendment No. 36:
In page 39, subsection (3)(b), line 18, to delete “(if any)”.
Section 30 requires the authority to establish and maintain a register of licensees to be known as the property services register. However, the current wording of subsection (3) appears to make it optional for the new authority to make the register available on its website. Removing the words “if any” in subsection (3) will ensure that the public will have on-line access to the register which I regard as of crucial importance.
Deletion of these words will also ensure that this subsection is consistent with the new section 86 which provides for the publication of residential property sales prices on the authority’s website, and section 87 which requires the authority to make the commercial leases database available at its principal office and on its website on payment of the appropriate fee.
Amendment agreed to.
Section 30, as amended, agreed to.
SECTION 31
Chairman:
Amendments Nos. 37 and 40 are cognate and will be discussed together.
Deputy Alan Shatter:
I move amendment No. 37:
In page 40, subsection (2)(b), lines 31 and 32, to delete all words from and including “certificate” in line 31 down to and including “proper” in line 32 and substitute the following:
“report in the specified form by a duly qualified accountant that appropriate”.
These are drafting amendments. Amendments Nos. 37 and 40 provide that an application for a licence, or for renewal, by a property services employer or independent contractor must be accompanied by a “report”, instead of a “certificate”, from a duly qualified accountant to the effect that “appropriate”, instead of “proper”, financial controls and systems are in place. The revised wording is more suitable to achieve the purpose of these provisions.
These amendments are being proposed following consultations with Chartered Accountants Ireland which have advised that accountants normally give a report or provide an opinion in financial issues. It has also advised that the word “appropriate” rather than “proper” should be used as there is not one “proper” type of financial controls and systems which licensees must have in place.
Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32
Chairman:
Amendments Nos. 38 and 39 are cognate and both may be discussed together.
Deputy Alan Shatter:
I move amendment No. 38:
In page 42, subsection (3)(g)(ii), line 7, after “(f)” to insert “of this subsection”.
These are simple drafting amendments.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 39:
In page 42, subsection (3)(h)(ii), line 17, after “(f)” to insert “of this subsection”.
Amendment agreed to.
Section 32, as amended, agreed to.
Sections 33 to 35, inclusive, agreed to.
SECTION 36
Deputy Alan Shatter:
I move amendment No. 40:
In page 45, subsection (4)(b), lines 42 and 43, to delete all words from and including “certificate” in line 42 down to and including “proper” in line 43 and substitute the following:
“report in the specified form by a duly qualified accountant that appropriate”.
Amendment agreed to.
Section 36, as amended, agreed to.
Section 37 agreed to.
SECTION 38
Deputy Alan Shatter:
I move amendment No. 41:
In page 47, subsection (2), lines 19 and 20, to delete all words from and including is” in line 19 down to and including “partnership)” in line 20 and substitute “has a place of business as a licensee”.
Amendment 41 clarifies that any licensee who has a place of business must display a copy of the licence at that place of business.
Amendment agreed to.
Section 38, as amended, agreed to.
SECTION 39
Deputy Alan Shatter:
I move amendment No. 42:
In page 48, subsection (2), lines 31 and 32, to delete “fine not exceeding €5,000” and substitute “class A fine”.
Amendment agreed to.
Section 39, as amended, agreed to.
Section 40 agreed to.
SECTION 41
Deputy Alan Shatter:
I move amendment No. 43:
In page 49, subsection (4), line 28, to delete “fine not exceeding €5,000” and substitute “class A fine”.
Amendment agreed to.
Section 41, as amended, agreed to.
Sections 42 to 46, inclusive, agreed to.
SECTION 47
Deputy Alan Shatter:
I move amendment No. 44:
In page 53, subsection (1)(l), line 17, after “auditor” to insert “or a duly qualified accountant”.
Amendment No. 44 takes account of the fact that not all accountants are auditors. It will also ensure consistency with sections 31 and 56, as amended by amendments Nos. 37 and 40, which require applicants for licences or renewal as a property services employer or independent contractor to furnish to the authority a report from a duly qualified accountant that proper financial systems and controls are in place for the protection of clients’ moneys.
Amendment agreed to.
Section 47, as amended, agreed to.
SECTION 48
Chairman:
Amendments Nos. 45 and 46 are related and will be discussed together.
Deputy Alan Shatter:
I move amendment No. 45 :
In page 53, subsection (1), line 33, to delete “A licensee” and substitute “Subject to subsection (2), a licensee”.
Section 48 makes it an offence for a licensee to lodge moneys to an account, other than a client account. However, property management agents routinely collect money on behalf of owners’ management companies and deposit that money into the company’s own accounts rather than into the agent’s client account. Amendment No. 46 is intended to allow for this situation and amendment No. 45 is a consequential drafting amendment.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 46 :
In page 53, between lines 35 and 36, to insert the following subsection:
“(2) Subsection (1) shall not apply to a licensee who lodges client moneys (or who causes client moneys to be lodged) to an account (in this subsection referred to as the “relevant account”) other than a client account where—
(a) the relevant account is an account into which charges levied under section 18 of the Multi-Unit Developments Act 2011 are paid for the purposes of a scheme referred to in that section, or
(b) the relevant account is an account into which contributions fixed under section 19 of the Multi-Unit Developments Act 2011 are paid for the purposes of a sinking fund referred to in that section.”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 47:
In page 53, subsection (3)(a), line 41, to delete “fine not exceeding €5,000” and substitute “class A fine”.
Amendment agreed to.
Section 48, as amended, agreed to.
SECTION 49
Deputy Alan Shatter:
I move amendment No. 48:
In page 56, subsection (6)(a), line 5, to delete “fine not exceeding €5,000” and substitute “class A fine”.
Amendment agreed to.
Section 49, as amended, agreed to.
Sections 50 to 57, inclusive, agreed to.
SECTION 58
Deputy Alan Shatter:
I move amendment No. 49:
In page 60, subsection (2), lines 20 and 21, to delete “fine not exceeding €5,000” and substitute “class A fine”.
Amendment agreed to.
Section 58, as amended, agreed to.
SECTION 59
Chairman:
Amendments Nos. 50 and 51 are related and may be discussed together.
Deputy Alan Shatter:
I move amendment No. 50:
In page 60, subsection (1), line 23, to delete “Where” and substitute “Subject to subsection (2), where”.
Section 59 provides that where land is offered for sale by auction, the vendor cannot bid at the auction or have someone else bid on his or her behalf. This is allowed under the sale of land by the Auction Act 1867, which is to be repealed in the First Schedule. Amendment No. 51 provides that this prohibition will not apply where the land is being sold by auction on foot of a court order under the Family Law Act 1995 or the Family Law (Divorce) Act 1996. This will allow a joint owner’s spouse to bid for the property sold under a court order following judicial separation or divorce. Amendment No. 50 is a consequential drafting amendment.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 51:
In page 60, between lines 27 and 28, to insert the following subsection:
“(2) Subsection (1) shall not apply where land is offered for sale by auction in compliance with—
(a) a court order under the Family Law Act 1995, or
(b) a court order under the Family Law (Divorce) Act 1996.”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 52:
In page 60, subsection (5), lines 43 and 44, to delete “fine not exceeding €5,000” and substitute “class A fine”.
Amendment agreed to.
Section 59, as amended, agreed to.
SECTION 60
Question proposed: “That section 60 stand part of the Bill.”
Deputy Alan Shatter:
Before we go further on section 60, I would like to raise an issue to which I want to give some thought before we go to Report Stage and to which members may want to give some consideration also. Section 60 is an important section to ensure there is clear transparency in circumstances where, to put it in non-technical terms, an auctioneer also provides a financial service to a purchaser or vendor engaged in the sale of a property. In order to ensure clear transparency, they must set out in writing that they have no objection to the person providing the property service also providing a financial service. In simple terms, an auctioneer engaged in selling a property might also provide a financial service to the vendor by identifying someone who might provide the loan for the property. During the property boom that was quite a frequent occurrence.
Looking at large numbers of the developments that took place during the property boom, development companies often had a group of auctioneers engaged in selling the properties and these auctioneers would have arranged a financial institution which would provide a financial package of loans to the purchasers. Frequently, there was an unspoken connection between the financial institution providing the package of loans to purchasers and the developer and there were a number of instances where the financial institution which lent money to the developer for the purpose of a development was the same financial institution that was providing a package of loans or mortgages to purchasers. I believe that what we had was a spectacular version of a property Ponzi scheme where some of the financial institutions that had funded developers to build properties at exorbitant prices were then providing 100% loans to purchasers, so that the developers got paid and they then paid their loans back to the lender. The lenders disbursed the loans to a variety of purchasers, many of whom are in negative equity.
I am considering the possibility of this Bill addressing an issue in this regard and I want to give notice to members of the committee of this. We will require some advice from the Office of the Attorney General as to whether it is appropriate to incorporate it in this Bill or whether it may be an issue that should be considered by the Minister for Finance. The issue concerns the relationship between the auctioneer and the purchaser or seller of property and is not about the financial institution as such. I want to consider the possibility that where a financial institution is providing a loan package for the acquisition of property, particularly residential property, and where that same financial institution has provided the money that has funded the development that has taken place, that there will be an obligation on the developer to inform the estate agent or the licensee of this and that the estate agent will be under an obligation to inform the purchaser. This is in order to provide transparency in areas where financial institutions are enthusiastically providing funding which they know facilitates them recovering the funding from a loan they have previously provided to a developer.
All of this may seem a bit esoteric and irrelevant in the current financial climate and in the context of the financial difficulties we are in, but not necessarily. There may be financial institutions that still have relationships with developers who are over-borrowed and where they are trying to assist the developer to recover moneys. Even in the current market, there could be an incentive to provide what may be inappropriate loans when one steps back from the interests the institution may have in getting its primary loan repaid by the developer. This is an issue that may, in some sense, go beyond this Bill but it is something I want to look at to see whether we can develop something in the Bill to provide an additional protection, one that will still have some relevance today and which may have relevance in future years should the market improve and change.
Deputy Dara Calleary:
I welcome the thrust of the Minister’s remarks. He should challenge the Department of Finance by putting something forward. One of the issues over the past number of years was that it did not challenge itself. While any proposal may be “esoteric now”, a stage will come where the lessons of what has happened over the past few years will be forgotten unless we take action now. Without having seen the detail, I support the thrust of what the Minister suggests. I have no doubt the Minister will challenge the Department of Finance that if it is not going to make a provision in this regard, he will do it through this Bill.
Deputy Tom Hayes:
I agree with the thrust of what the Minister suggests, particularly with regard to the banks. However, it should be borne in mind that there are small auctioneers around the country who are also agents for building societies. They have been above the law and have lived within it. This is particularly true of small shops in rural areas. The Minister should be careful of what he is drafting. The Minister’s point regarding the banks is a no-brainer.
Deputy Alan Shatter:
I can reassure Deputy Tom Hayes. This is not about preventing people from engaging in legitimate business but ensuring transparency of relationships. This is done in the hope that the transparency will facilitate those seeking to purchase property to understand why one particular financial institution may be overenthusiastic in providing funds at a level that other institutions may have no enthusiasm for providing funds. A significant number of people had financial packages presented to them, particularly between 2004 to 2007, that made it look as if the financial institution was doing them a favour for providing funding for grossly overpriced residential property and, in some areas, grossly overpriced commercial property without realising that the enthusiastic financial institution that put the package together had funded the construction of the property in the first place and had a separate, identifiable vested interest in the developer repaying the loan. The money was going around in a circuitous manner and was essentially a banking version of a Ponzi scheme. They were spreading the risk to a large number of residential purchasers. Tragically, for them, this has left them in negative equity. If the institution did not have an interest in facilitating the developer repaying the loan, the institution might have shown greater care and applied due diligence in determining the wisdom of certain properties being purchased at the price levels at which they were acquired. They might also have questioned the wisdom of providing 100% mortgages and, in some instances, 110% mortgages to encourage purchases to take place without properly assessing the capacity of those obtaining the mortgages to repay them.
Question put and agreed to.
Section 61 agreed to.
SECTION 62
Deputy Alan Shatter:
I move amendment No. 53:
In page 61, subsection (1)(b), line 41, after “land),” to insert “booking deposits for the letting of land,”.-
This amendment proposes to extend the authority’s regulation-making powers to permit it to make regulations on booking deposits for the letting of land. The authority already has this power in the current text of section 62(1)(b) with regard to sales of land.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 54:
In page 62, subsection (4), to delete lines 15 to 17 and substitute the following:
“licensees or classes of such persons is guilty of an offence and liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 3 years or both.”.
This amendment makes specific provision for indictable offences in the case of breaches of regulations made under section 62. Section 62(4) as currently worded already makes provision only for summary offences.
Amendment agreed to.
Section 62, as amended, agreed to.
Sections 63 to 65, inclusive, agreed to.
SECTION 66
Deputy Alan Shatter:
I move amendment No. 55:
In page 67, subsection (1)(f), line 3, after “licensee,” to insert “the licensee’s principal officer,”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 56:
In page 69, subsection (17)(i), line 26, to delete “fine not exceeding €5,000” and substitute “class A fine”.
Amendment agreed to.
Section 66, as amended, agreed to.
NEW SECTION
Chairman:
Acceptance of the following amendment involves the deletion of section 67 of the Bill. Amendments Nos. 57, 78, 83 and 85 to 92, inclusive, are related and will be discussed together.
Deputy Alan Shatter:
I move amendment No. 57:
In page 70, before section 67, to insert the following new section:
67.—(1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication to the Authority, whether in writing or otherwise, of his or her opinion that any improper conduct by a licensee may have occurred or may be occurring, or that a contravention of a provision of this Act or of regulations made under this Act by a person other than a licensee may have been or may be being committed, unless—
(a) in communicating his or her opinion to the Authority did so—
(i) knowing it to be false, misleading, frivolous or vexatious, or
(ii) reckless as to whether it was false, misleading, frivolous or vexatious, or
(b) in connection with the communication of his or her opinion to the Authority, furnished information that he or she knew to be false or misleading.
(2) The reference in subsection (1) to liability in damages shall be construed as including a reference to liability to any other form of relief.
(3) A person who makes a communication under subsection (1), which the person knows to be false, that any improper conduct by a licensee may have occurred or may be occurring, or that a contravention of a provision of this Act or of regulations made under this Act by a person other than a licensee may have been or may be being committed, is guilty of an offence.
(4) Subsection (1) is in addition to, and not in substitution for, any privilege or defence available in legal proceedings, by virtue of any statutory provision or rule of law in force immediately before the commencement of this section, in respect of the communication by a person to another (whether that other person is the Authority or not) of an opinion of the kind referred to in subsection (1).
(5) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for—
(a) having formed an opinion of the kind referred to in subsection (1) and communicated it, whether in writing or otherwise, to the Authority unless the employee—
(i) in communicating his or her opinion to the Authority did so—
(I) knowing it to be false, misleading, frivolous or vexatious, or
(II) reckless as to whether it was false, misleading, frivolous or vexatious,
or
(ii) in connection with the communication of his or her opinion to the Authority, furnished information that he or she knew to be false or misleading, or
(b) giving notice of his or her intention to do the thing referred to in paragraph (a).
(6) Schedule 4 shall have effect for the purposes of subsection (5).
(7) An employer who contravenes subsection (5) is guilty of an offence.
(8) A person guilty of an offence under subsection (3) or (7) shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 3 years or both.
(9) Any person who, upon examination on oath authorised under paragraph 3(1) of Schedule 4, wilfully makes any statement which is material for the purpose and which the person knows to be false or does not believe to be true is guilty of an offence and liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.
(10) A person to whom a notice under paragraph 3(2) of Schedule 4 has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates is guilty of an offence and liable on summary conviction to a class A fine.
(11) A document purporting to be signed by the chairperson or a deputy chairperson of the Labour Court stating that—
(a) a person named in the document was, by a notice under paragraph 3(2) of Schedule 4, required to attend before the Labour Court on a day and at a time and place specified in the document, to give evidence or produce a document, or both,
(b) a sitting of the Labour Court was held on that day and at that time and place, and
(c) the person did not attend before the Labour Court in pursuance of the notice or, as the case may be, having so attended, refused to give evidence or refused or wilfully failed to produce the document,
shall, in a prosecution of the person under subsection (10), be evidence of the matters so stated without further proof unless the contrary is shown.
(12) For the purposes of this section, a reference to “dismissal” includes—
(a) a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007, and
(b) a dismissal wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3) of the Protection of Employees (Fixed-Term Work) Act 2003.
(13) Paragraphs (a), (c), (d), (e) and (f) of the definition of “penalisation” in subsection (14) shall not be construed in a manner which prevents an employer from—
(a) ensuring that the business concerned is carried on in an efficient manner, or
(b) taking any action required for economic, technical or organisational reasons.
(14) In this section—
“contract of employment” means a contract of employment or of service or of apprenticeship, whether the contract is express or implied and, if express, whether it is oral or in writing;
“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;
“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, and includes—
(a) a person (other than an employee of that person) under whose control and direction an employee works, and
(b) where appropriate, the successor of the employer or an associated employer of the employer;
“penalisation” means any act or omission by an employer, or by a person acting on behalf of an employer, that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—
(a) suspension, lay-off or dismissal,
(b) the threat of suspension, lay-off or dismissal,
(c) demotion or loss of opportunity for promotion,
(d) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
(e) the imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty),
(f) unfair treatment, including selection for redundancy,
(g) coercion, intimidation or harassment,
(h) discrimination, disadvantage or adverse treatment,
(i) injury, damage or loss, and
(j) threats of reprisal.”.
This group of amendments update and strengthen the whistleblower provisions in the Bill, section 67 and Schedule 4, to bring them into line with provisions in the Prevention of Corruption (Amendment) Act 2010.
Amendment agreed to.
Section 67 deleted.
Sections 68 to 71, inclusive, agreed to.
SECTION 72
Deputy Alan Shatter:
I move amendment No. 58:
In page 76, subsection (5), line 26, to delete “fine not exceeding €5,000” and substitute “class A fine”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 59:
In page 76, subsection (7), line 37, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 72, as amended, agreed to.
Section 73 agreed to.
SECTION 74
Deputy Alan Shatter:
I move amendment No. 60:
In page 78, subsection (5), line 16, to delete “fine not exceeding €5,000” and substitute “class A fine”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 61:
In page 78, subsection (6), lines 19 and 20, to delete “fine not exceeding €5,000” and substitute “class A fine”.
Amendment agreed to.
Section 74, as amended, agreed to.
Sections 75 to 77, inclusive, agreed to.
SECTION 78
Deputy Alan Shatter:
I move amendment No. 62:
In page 79, subsection (1), lines 21 and 22, to delete “partner, employee or agent or former partner” and substitute the following:
“principal officer, employee or agent or former principal officer”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 63:
In page 79, subsection (2), to delete lines 29 to 33 and substitute the following:
“incurred by the client in seeking to recover it with, where the Authority thinks fit, interest at the rate for the time being standing specified under section 26 of the Debtors (Ireland) Act 1840 on the whole or any part of the amount or value of such loss”.
This is a drafting amendment. It will ensure consistency between the wording of section 78(2) and the amended paragraph 4(3) of Schedule 4.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 64:
In page 80, subsection (6)(a)(i)(II), lines 21 and 22, to delete “partner, employee or agent or former partner” and substitute the following:
“principal officer, employee or agent or former principal officer”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 65:
In page 80, subsection (6)(a)(i)(III), lines 27 and 28, to delete “partner, employee or agent or former partner” and substitute the following:
“principal officer, employee or agent or former principal officer”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 66:
In page 80, subsection (6)(a)(ii), lines 33 and 34, to delete “partner, employee or agent or former partner” and substitute the following:
“principal officer, employee or agent or former principal officer”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 67:
In page 80, subsection (6), lines 38 to 47, to delete paragraph (b) and substitute the following:
“(b) In paragraph (a), references to the licensee or any principal officer, employee or agent or former principal officer, employee or agent of the licensee include, in the event of the death, insolvency or other disability of such licensee, principal officer, employee or agent or former principal officer, employee or agent, references to the personal representative of such licensee, principal officer, employee or agent or former principal officer, employee or agent or any other person having authority to administer the estate of such licensee, principal officer, employee or agent or former principal officer, employee or agent.”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 68:
In page 81, between lines 19 and 20, to insert the following subsection:
“(11) The Authority may, for the purposes of satisfying itself as referred to in subsection (1) or for the purposes of protecting its rights under subsection (6), or for both such purposes, require any person to answer all questions, execute all documents and take all steps as may, in the opinion of the Authority, be necessary for any of those purposes, and may require a client of a licensee who claims he or she has sustained a loss referred to in subsection (1) to verify any document by affidavit.”.
This amendment will give the Property Services Regulatory Authority the power to investigate claims for compensation from the compensation fund, including the power to require any person to answer questions and to verify documents by affidavit. It is intended to protect the fund against dishonest claims and to protect the authority’s right to try to recoup any moneys it pays out of the fund.
Amendment agreed to.
Section 78, as amended, agreed to.
Sections 79 to 82, inclusive, agreed to.
SECTION 83
Deputy Alan Shatter:
I move amendment No. 69:
In page 83, subsection (1), line 9, to delete “does” and substitute “shall”.
Amendment agreed to.
Section 83, as amended, agreed to.
Sections 84 and 85 agreed to.
NEW SECTIONS
Deputy Alan Shatter:
I move amendment No. 70:
In page 84, before section 86, to insert the following new section:
"PART 12 RESIDENTIAL PROPERTY SALES PRICES AND COMMERCIAL LEASES DATABASE
86.—(1) The Authority shall, as soon as is practicable after the commencement of this section, maintain and publish particulars of residential property sales prices in the State, including—
(a) the address of the property,
(b) the price at which the property was sold, and
(c) the date of the sale of the property.
(2) The particulars referred to in subsection (1) may, at the Authority’s discretion, relate, whether in respect of all residential properties in the State or a class of such properties, to sales of properties over a period of time, including a period of time which has elapsed before the commencement of this section.
(3) The Authority shall make the particulars referred to in subsection (1) available for inspection free of charge by any person on its Internet website in such a manner that the section of the website which contains the particulars is readily accessible by members of the public.”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 71:
In page 84, before section 86, to insert the following new section:
87.—(1) The Authority shall, as soon as is practicable after the commencement of this section, establish and maintain for the purposes of this Act a database relating to commercial property leases, to be known as the Commercial Leases Database.
(2) The Commercial Leases Database shall be in such form as the Authority thinks fit and shall, in respect of each relevant commercial lease which is in force, contain—
(a) the address and description of the commercial property the subject of the lease,
(b) the date of the lease of the property,
(c) the term of years of the lease,
(d) the rent payable in respect of the property,
(e) the particulars provided to the Authority under section 88 in relation to the property, and
(f) such other particulars as may be prescribed by regulations made under section 92 for the purposes of this paragraph.
(3) The Authority shall make the Commercial Leases Database available for inspection by any person, on payment of the appropriate fee—
(a) at its principal office during normal working hours, and
(b) on its Internet website in such a manner that the section of that website which contains the Database is readily accessible by such person.”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 72:
In page 84, before section 86, to insert the following new section:
88.—(1) The tenant under a relevant commercial lease (or such other person as the tenant has authorised in writing to act on his or her behalf for the purposes of this subsection in so far as it relates to the lease) shall, within the relevant period immediately following the day on which a stamp certificate is received by or on behalf of the tenant from the Revenue Commissioners in respect of the lease, give to the Authority a notice in the specified form setting out—
(a) the commencement date of the terms of the lease,
(b) the capital consideration (if any) to be paid by the tenant or landlord in respect of the commercial property the subject of the lease,
(c) the frequency of the rent review in respect of the property,
(d) the particulars relating to who is liable in respect of the rates, insurance, service charges and repairs in respect of the property,
(e) the net floor area, per each floor, of the property,
(f) the particulars (if any) relating to rent-free periods, fitting out time allowed, fit out allowances and capital contributions in respect of the property,
(g) the particulars relating to any break-clause in the lease,
(h) the certificate identification number (within the meaning of regulation 2 of the Stamp Duty (E-stamping of Instruments) Regulations 2009 (S.I. No. 476 of 2009)) of that stamp certificate, and
(i) such other particulars as may be prescribed by regulations made under section 92 for the purposes of this paragraph.
(2) Where a reviewed rent has been determined (whether or not the rent concerned is increased, decreased or remains the same) in respect of a relevant commercial lease (whether by agreement or otherwise), the tenant under the lease (or such other person as the tenant has authorised in writing to act on his or her behalf for the purposes of this subsection in so far as it relates to the lease) shall, within the relevant period immediately following the day of the determination, give to the Authority a notice in the specified form setting out—
(a) the particulars of the reviewed rent,
(b) the particulars of any other variations made to the lease during, or for the purposes of, the rent review, and
(c) such other particulars as may be prescribed by regulations made under section 92 for the purposes of this paragraph.
(3) A provision (howsoever expressed) of any contract or other agreement which has as its object or effect the prevention of the disclosure of any of the particulars referred to in subsection (1) or (2), whether to the Authority or to other persons or to both, shall not prevent the disclosure of those particulars to the Authority in accordance with this section.
(4) A person who, without reasonable excuse, contravenes subsection (1) or (2) is guilty of an offence and liable on summary conviction to a class A fine.
(5) In this section, “relevant period” means—
(a) the period prescribed by regulations made under section 92 for the purposes of this definition,
(b) if no such period is so prescribed for the time being, 30 days.”.
Amendment agreed to.
Sections 86 and 87 agreed to.
SECTION 88
Deputy Alan Shatter:
I move amendment No. 73:
In page 86, subsection (2), lines 29 to 32, to delete paragraphs (a) and (b) and substitute the following:
“(a) imposition of a minor sanction on a licensee pursuant to a decision under section 68(4)(a),
(b) imposition of a minor sanction on a licensee pursuant to a decision given under section 70(3), or
(c) imposition of a minor sanction on a licensee pursuant to a determination under paragraph 25(1)(a) or (c) of Schedule 5.”.
Section 88 provides for publication by the authority of certain decisions and sanctions. For example, it provides for publication by the authority of a suspension of a licence or the refusal to renew a licence. This amendment clarifies that the authority may in its discretion also publish particulars of the imposition of minor sanctions by the Property Services Appeal Board.
Amendment agreed to.
Section 88, as amended, agreed to.
Sections 89 and 90 agreed to.
SECTION 91
Deputy Alan Shatter:
I move amendment No. 74:
In page 88, subsection (1), lines 7 and 8, to delete “fine not exceeding €5,000” and substitute “class A fine”.
Amendment agreed to.
Section 91, as amended, agreed to.
Section 92 agreed to.
SECTION 93
Deputy Alan Shatter:
I move amendment No. 75:
In page 90, subsection (2), line 42, to delete “section 3” and substitute “section 3(1)”.
This is a minor drafting amendment.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 76:
In page 90, subsection (3), line 51, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Section 93, as amended, agreed to.
Section 94 agreed to.
Schedule 1 agreed to.
SCHEDULE 2
Deputy Alan Shatter:
I move amendment No. 77:
In page 97, paragraph 1, lines 24 to 26, to delete clause (i) and substitute the following:
“(i) a statement of the obligation (if any) on the licensee, pursuant to sections 42 and 43 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, to report, to the Garda Síochána and the Revenue Commissioners, suspicious transactions and transactions involving places designated under section 32 of that Act,”.
This is a drafting amendment which updates the text of paragraph 1, section (i), of Schedule 2 to take account of the updated provisions on the reporting of money laundering in the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010.
Amendment agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 agreed to.
SCHEDULE 4
Deputy Alan Shatter:
I move amendment No. 78:
In page 102, paragraph 1(1), line 5, to delete “his or her parent or guardian)” and substitute the following:
“the employee’s parent or guardian with the consent of the employee) or, with the consent of the employee, any trade union of which the employee is a member,”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 79:
In page 102, paragraph 1(1), line 6, to delete “his or her” and substitute “the employee’s”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 80:
In page 102, paragraph 1(3)(b), line 22, after “action” to insert the following:
“, which may include, in a case where the penalisation constitutes a dismissal within the meaning of section 67(12), re-instatement or re-engagement”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 81:
In page 102, paragraph 1(3)(c), line 27, after “regulations” to insert “made”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 82:
In page 102, paragraph 1(4), line 34, to delete “A rights” and substitute “Subject to subparagraph (10), a rights”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 83:
In page 102, paragraph 1(5), line 43, to delete “a reasonable cause” and substitute “exceptional circumstances”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 84:
In page 103, paragraph 1(6), line 2, to delete “Enterprise, Trade and Employment” and substitute “Jobs, Enterprise and Innovation”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 85:
In page 103, paragraph 1, between lines 9 and 10, to insert the following:
“(10) Where a delay by an employee in presenting a complaint under this paragraph is due to any misrepresentation by the employer, subparagraph (4) shall be construed as if the reference to the date of the contravention were a reference to the date on which the misrepresentation came to the employee’s notice.”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 86:
In page 103, paragraph 2(1), line 12, to delete “paragraph 1” and substitute “paragraph 1(2)”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 87:
In page 104, paragraph 3(4), line 23, after “brought,” to insert the following:
“or, if such appeal has been brought, it has been abandoned,”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 88:
In page 104, paragraph 3, lines 43 to 47, to delete subparagraph 8 and substitute the following:
“(8) (a) If penalisation of an employee, in contravention of section 67(5), constitutes a dismissal of the employee as referred to in paragraph (a) of the definition of “penalisation” in section 67(14), the employee (or, in the case of an employee who has not reached the age of 18 years, the employee’s parent or guardian with the consent of the employee) may institute proceedings in respect of that dismissal under the Unfair Dismissals Acts 1977 to 2007 or to recover damages at common law for wrongful dismissal and, if the employee or his or her parent or guardian, as the case may be, does so, a complaint in relation to such dismissal may not be presented to a rights commissioner under paragraph 1 (1).
(b) If an employee (or, in the case of an employee who has not reached the age of 18 years, the employee’s parent or guardian with the consent of the employee) presents a complaint to a rights commissioner under paragraph 1(1) in respect of a dismissal referred to in clause (a), the employee or his or her parent or guardian, as the case may be, may not institute proceedings in respect of that dismissal under the Unfair Dismissals Acts 1977 to 2007 or to recover damages at common law for wrongful dismissal.”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 89:
In page 104, paragraph 3, after line 47, to insert the following:
“(9) There shall be included among the debts which, under section 285 of the Companies Act 1963 (as amended by section 10 of the Companies (Amendment) Act 1982 and section 134 of the Companies Act 1990) are, in the distribution of the assets of a company being wound up, to be paid in priority to all other debts, all compensation payable by virtue of a decision under paragraph 1(2) (b) or a determination under paragraph 2(1) by the company to an employee, and that Act shall have effect accordingly. Formal proof of the debts to which priority is given under this subparagraph shall not be required except in cases where it may otherwise be provided by rules made under that Act.
(10) There shall be included among the debts which, under section 81 of the Bankruptcy Act 1988 are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable by virtue of a decision under paragraph 1 (2)(b) or a determination under paragraph 2(1) by the bankrupt or arranging debtor, as the case may be, to an employee, and that Act shall have effect accordingly. Formal proof of the debts to which priority is given under this subparagraph shall not be required except in cases where it may otherwise be provided under that Act.”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 90:
In page 105, paragraph 4(1)(a), line 7, after “concerned” to insert the following:
“(or, in the case of an employee who has not reached the age of 18 years, the employee’s parent or guardian with the consent of the employee)”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 91:
In page 105, paragraph 4(3), to delete lines 24 to 28 and substitute the following:
“pay to the employee concerned interest on the compensation at the rate for the time being standing specified under section 26 of the Debtors (Ireland) Act 1840 in respect of the whole or part of the period beginning 28 days after the day on which the”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 92:
In page 105, paragraph 4(4), line 34, after “any” to insert “profession,”.
Amendment agreed to.
Schedule 4, as amended, agreed to.
SCHEDULE 5
Deputy Alan Shatter:
I move amendment No. 93:
In page 106, paragraph 1, line 8, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 94:
In page 108, paragraph 5, line 9, to delete “Finance” and substitute “Public Expenditure and Reform”.
Amendment agreed to.
Schedule 5, as amended, agreed to.
SCHEDULE 6
Chairman:
Amendments Nos. 95 and 96 are related and may be discussed together.
Deputy Joanna Tuffy took the Chair.
Deputy Alan Shatter:
I move amendment No. 95:
In page 116, lines 9 to 11, to delete paragraph 3 and substitute the following:
“3. The Authority may, with the approval of the Minister, given with the consent of the Minister for Public Expenditure and Reform and the Minister for Finance, borrow for the Fund and, for the purpose of giving security in respect of such borrowing, may charge investments of the Fund.”.
These amendments relate to the property services compensation fund. Schedule 6 provides that the authority may borrow for the compensation fund. Amendment No. 95 makes this borrowing power subject to the approval, in the first instance, of the Minister for Justice and Equality, and then of the Minister for Public Expenditure and Reform and the Minister for Finance. This is a standard provision in respect of the borrowing powers of public bodies.
Amendment No. 96 imposes an obligation on the authority to keep proper accounts in respect of the compensation fund and provides that these accounts will be audited by the Comptroller and Auditor General. The Bill already imposes an obligation on the authority to keep proper accounts and for the auditing of those accounts by the Comptroller and Auditor General. The amendment simply clarifies that the same obligations will apply in respect of the compensation fund.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 96:
In page 117, after line 3, to insert the following:
“7. The Authority shall keep all proper and usual accounts of all moneys paid into the Fund and disbursements from the Fund, including—
(a) an income and expenditure account,
(b) a cash-flow statement, and
(c) a balance sheet.
8. As soon as may be after the end of each financial year of the Authority, the Authority shall submit—
(a) the accounts of the Fund to the Comptroller and Auditor General for audit, and
(b) a copy of an abstract of the accounts as so audited together with a copy of the report of the Comptroller and Auditor General thereon to the Minister.
9. The Minister shall cause copies of the 2 documents referred to in paragraph (8)(b) to be laid before each House of the Oireachtas as soon as may be after the documents are submitted to him or her by the Authority.”.
Amendment agreed to.
Schedule 6, as amended, agreed to.
Schedule 7 agreed to.
SCHEDULE 8
Deputy Alan Shatter:
I move amendment No. 97:
In page 125, after line 52, to insert the following:
9. The Stamp Duties Consolidation Act 1999 is amended by inserting the following sections after section 137A:
137B.—(1) In this section “Authority” means An tUdarás Rialála Seirbhísí Maoine or, in the English language, the Property Services Regulatory Authority.
(2) Notwithstanding any obligation to maintain secrecy or any other restriction on the disclosure or production of information obtained by or furnished to the Commissioners, the Commissioners shall, at such intervals as are specified by the Authority on or after the establishment day within the meaning of section 2(1) of the Property Services (Regulation) Act 2011, supply to the Authority, such information in the Commissioners’ e-stamping system (including information which was in that system before that establishment day) as may be required by the Authority for the performance of the functions of the Authority.
137C.—(1) In this section “Commissioner of Valuation” means a Commissioner appointed under section 9(5) of the Valuation Act 2001.
(2) Notwithstanding any obligation to maintain secrecy or any other restriction on the disclosure or production of information obtained by or furnished to the Commissioners, the Commissioners shall, at such intervals as are specified by the Commissioner of Valuation, supply to the Commissioner of Valuation such information in the Commissioners’ e-stamping system as may be required by the Commissioner of Valuation for the performance of the functions of the Commissioner of Valuation.”.”.
Amendment agreed to.
Deputy Alan Shatter:
I move amendment No. 98:
In page 125, after line 52, to insert the following:
10. Schedule 5 to the Social Welfare Consolidation Act 2005 is amended, in paragraph 1(4), by substituting the following for “the Probate Office,”:
“the Probate Office,
the Property Services Regulatory Authority,”.”.
This amendment is required in order to enable the authority to request individual applicants for licences to provide their PPS numbers on their licence application forms. This will ensure that a rejected applicant will not be able to apply for a licence under another name.
Amendment agreed to.
Schedule 8, as amended, agreed to.
Question proposed: “That the Title be the Title to the Bill.”
Vice Chairman:
Would the Minister like to make a final comment on the Bill?
Deputy Alan Shatter:
I thank the Chairman, who is temporarily absent, the Vice Chairman and the committee members for their co-operation and assistance in facilitating the speedy passage of Committee Stage. This is an important Bill, which was initiated by my predecessors, and on assuming office, I was anxious to see it enacted as quickly as possible.
Some time had to be spent in preparing the series of amendments introduced today. While some are technical in nature, the two of major importance relate to the sale prices of residential properties and to the commercial leasing database. These measures will provide a new level of transparency which will be of great assistance both to those who intend to acquire homes and to those in the commercial sector who wish to lease property. We will now have a touchstone against which to ascertain market prices and rental levels, thus allowing for accurate comparisons.
It will take a little time for the information to be built up once the legislation is enacted and the authority is established. It is the type of information that is available in a broad range of other countries. The availability of that information will provide assurances to people seeking to purchase residential property that they are not offering too much by way of price. That will provide some balance in terms of how the market operates. In the context of the commercial sector it will not only provide transparency in regard to rents but also an insight in cases where they seem particularly high or low by indicating whether there are other provisions contained in a lease which explain the discrepancy. These might include cases where a tenant is carrying out improvements on a property and is, as a consequence, receiving a discount on rent, or where a landlord is investing money in a property and, as a result, the rent is particularly high. At present, one cannot access information on those types of comparators. Some of the information is essentially regarded as data that cannot be revealed.
Leaving aside the main purpose of this Bill, which is to create a new architecture in order to address a professional sector that has a huge impact on individuals and on the economy and trading, the additional amendments we have implemented are also of importance. I appreciate the support of the committee in putting them through.
Vice Chairman:
I have a question for the Minister that is relevant to this legislation. An issue that would be important to me as a public representative because it has come up frequently with constituents is the regulation of property management services companies. It has come to my attention that people working as property management agents do not have any qualification. If those people move to the new regime will that issue be addressed? Also, it is important to monitor this legislation in terms of how it will work in practice.
It is important that the Property Services Regulation Authority provides a means for mediating in disputes between apartment owners and managing agents. Does the Minister believe the legislation underpins that?
Deputy Alan Shatter:
Some of the issues raised by the Vice Chairman were addressed in the Multi-Unit Developments Bill which has been enacted and provides mechanisms for doing that.
Regarding agents, there are specific provisions in the Bill for enforcing standards. The authority can prescribe a code of practice in these areas and enactment of the legislation should be of specific help in that regard.
Vice Chairman:
Will the authority mediate between the parties in disputes?
Deputy Alan Shatter:
No. That would not be a role of the authority. The authority essentially is an oversight and disciplinary authority. It is not a mediation authority where there would be disputes, for example, between an individual or a large number of apartment owners. The management company ultimately is acting on behalf of the apartment owners because if a management company-----
Vice Chairman:
No. I am referring to managing agents.
Deputy Alan Shatter:
The managing agent is ultimately-----
Vice Chairman:
I appreciate that.
Deputy Alan Shatter:
Unless the developer has remained in control of a multi-unit residential development, once the developer ceases to remain in control, and there are specific provisions in the multi-unit legislation to prevent the type of situation we have seen where developers remain in control for many years and do not divest themselves, it is the occupiers of the multi-unit dwellings who provide the board or the management for the company. It is they who appoint agents often to act in their stead. This legislation allows for the prescription of codes of practice for agents and it also addresses - we dealt with it in one of the amendments - issues relating to dealing with funds. If there is a dispute between the agent and the people who appointed them or if the agent is a hangover from the developer, that is not an issue specifically relevant to this Bill.
Vice Chairman:
I have a good deal of experience of this from my time as a solicitor in conveyancing and I understand the structure. It was foreseen at some stage that the Property Services Regulatory Authority would mediate in disputes between apartment owners and the managing agents rather than issues ending up in court where they never get resolved.
Deputy Alan Shatter:
The complaints structure provided in this Bill is relevant in that if there is a complaint about an agent-----
Vice Chairman:
It could be mediated.
Deputy Alan Shatter:
-----the architecture of the complaints structure, which is contained in Part 7 of the Bill, would deal with that. It states that a person can “... make a complaint in writing to the Authority alleging that improper conduct by a licensee [in this case it would be the agent] has occurred or is occurring ...”. Where a complaint has been received there is a broad range of things that can occur, one of which is the investigation of the complaint. Those are the provisions contained in the legislation.
There is a provision in the Bill for that type of issue to be resolved by mediation. Section 63(2)(c) states: “... following the making of such inquiries as the Authority thinks fit, it is satisfied that the complaint is likely to be resolved by mediation or other informal means between the parties concerned”. The authority can have a complaint investigated unless it is satisfied it can be resolved by mediation. Section 63(6) provides that where a complaint “is not resolved by mediation or other informal means ... the complainant may, at his or her discretion, make a fresh complaint ...” and the matter will then be processed.
The legislation clearly envisages the possibility of using mediation but if mediation does not work, it is not the authority that would be mediating but an independent mediator. The authority would not be acting in the role of mediator. It would decide if the complaint can be resolved by mediation and if it cannot, one goes through the complaints structure but the authority is not the mediator. It is dealing with the complaint and making an assessment as to whether it could be resolved by mediation and where it was of that view, presumably it could encourage people to use mediation. It does not mean automatically they will do that.
Vice Chairman:
That clarifies the matter. I thank the Minister and his officials for attending.
Question put and agreed to.
Bill reported with amendments.
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