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

Wednesday, 3 May 1978

Dáil Eireann Debate
Vol. 306 No. 2

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An Ceann Comhairle: Information on Joseph Brennan  Zoom on Joseph Brennan  Amendment No. 40a was discussed with amendment No. 40 which has already been disposed of. The Minister will move the amendment and there will be no further debate.

Minister for Justice (Mr. G. Collins): Information on Gerard Collins  Zoom on Gerard Collins  I move amendment No. 40a:

In page 13, lines 25 and 26, to delete subsection (6) and substitute:—

“(6) Sections 9 and 19 (1) of the Act of 1967 (which provide for the costs of an arbitration) shall not apply where the applicant is in occupation of the dwelling-house.”.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  On the amendment——

[160]An Ceann Comhairle: Information on Joseph Brennan  Zoom on Joseph Brennan  We cannot have a debate. We have already discussed it and it was disposed of with amendment No. 40. We must decide without debate.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I have no objection to it. It seems to me to meet the point raised in amendment No. 41.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  It meets what the Deputy is asking for in amendment No. 41.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  It meets what I am asking for, so it is agreed.

Amendment agreed to.

An Ceann Comhairle: Information on Joseph Brennan  Zoom on Joseph Brennan  Amendment No. 41 in the name of Deputy O'Keeffe.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  Amendments Nos. 40a and 41 are related in that amendment No. 41 relates to the cost of arbitration. I put down the amendment because of my concern that the householder would have to pay the cost of arbitration.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  On a point of order, has not amendment No. 41 been disposed of?

An Ceann Comhairle: Information on Joseph Brennan  Zoom on Joseph Brennan  Amendment No. 41 was discussed with amendment No. 40. They were related. Amendment No. 40 was defeated and amendment No. 41 should automatically fall with amendment No. 40.

Amendment No. 41 not moved.

Question proposed: “That section 23, as amended, stand part of the Bill.”

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  Arising out of our discussion on the amendments, it appears that the cost to the householder will be far greater than originally anticipated. I would ask the Minister to give further consideration to the question of reducing the over-all cost to the householder of acquiring his freehold under this Bill.

In particular, I would ask him to give consideration to the question of ensuring that the title which the householder will get will be a freehold absolute registered title. It is clear from our discussions on this section [161] that the title which the householder will get under this Bill will not be a registered title. The Bill merely provides for a vesting certificate which would not be legally acceptable as a good title. After going to the expense of obtaining such a vesting certificate under the Bill, the householder will now have to go to the additional expense of registering this title.

In some cases, particularly where a registration under the provision of the registration of title is involved, that is a registration in the Land Registry, the expenses involved could be very considerable, because it could involve the cost to the householder of obtaining a map for production to the Land Registry. This could be quite a considerable expense in view of the cost of the Ordnance Survey sheet and the cost of getting it marked by an engineer. It might involve an application equivalent to an application for first registration in the Land Registry. In that case substantial costs would be involved. In all cases cost will be involved to the householder. Even in a simple straightforward case there will be the cost of registration in the Registry of Deeds. This will involve the preparation of a memorial which is a rather complicated legal document, together with the payment of fees to the Registry of Deeds.

It is now clear that in no case will a householder obtain an acceptable conveyancing title on payment of the minimum fee of £5. I have done some investigation and calculations on this matter and it seems to me that the average cost to the householder will probably be of the order of about £50. This type of additional expense could be obviated if the Minister were prepared to agree that the householder should get a registered title having resorted to the provisions of this Bill to acquire his freehold.

I appreciate this is a general point at this stage but I urge the Minister to give further consideration to the point that the householder will end up with a registered absolute freehold title.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  I fully support some of the points made by Deputy [162] O'Keeffe. Part III deals with the vesting of fee simple in dwellinghouses. It would appear from what was stated on the last occasion this matter was debated in the House that the Minister is furnishing only a vesting certificate. He said he was providing a scheme to lead to the abolition of ground rents. I put it to the Minister very strongly that furnishing the vesting certificate on its own is not sufficient. It is absolutely essential to provide that the person obtains the full fee simple, that he obtains the equivalent of a land certificate which is the basic title deed in relation to farms and quite a large number of houses in Dublin. Added to that land certificate there will be lodged in the Land Registry a map of the land. Those are two simple but nevertheless absolutely fundamental and essential items which will be required.

This whole procedure we are going through in great detail, basically is sidestepping the real issue unless we furnish a full absolute title. I cannot over-stress the importance of this point. Our work has been wasted unless we furnish to people buying out ground rents a full absolute fee simple. Basically we are tying in the lesser interest with the superior interest and merging the two. We must ensure that a person obtains an absolute registered title in the Land Registry and obtains a full land certificate after the completion of all necessary work.

The Minister stated that this vesting certificate on its own will not be sufficient. People will be furnished with vesting certificates to which maps will not be attached and they must have themselves registered. That was basically the Minister's point. I said earlier that it is essential that county registrars should do this work and, titles having being fully investigated, the Land Registry would then register them. We are now providing that a person will be furnished with a vesting certificate and must then have himself registered as owner. This will lead to an application in the Land Registry for first registration and this is a slow and tortuous procedure. Maps must be measured precisely and the matter must be looked into by an engineer; [163] all the necessary affidavits must be furnished and the matter must be investigated by the Registrar of Titles. Whether a person gets a possessory title or an absolute title will be decided in the first registration. It is essential that all of this should take place at the one time and a person should have an absolute title registered in the Land Registry.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  Section 23 is a fees section. The question of whether the vesting certificate does or does not carry with it registration of title has no direct connection with section 23. It might be appropriate to discuss it in the context of section 22 (3) and section 22 (5) which deal with registration aspects of the vesting certificate procedure. The registration of title issue might come up again and again and cause serious confusion. We must be careful of this because we might give the wrong impression and seriously damage this worth-while legislation. We must never get away from the purpose of the Bill.

This Bill does not compel purchasing tenants to register their new title. It is not correct to say that the title so acquired is useless without registration. That is not so. It will be a perfectly good title, whether the house is built on registered or unregistered land. It will be a statutory title declared to operate as a conveyance free from incumbrance of the fee simple and any intermediate interests. In addition, it is proposed to keep separate registers of such certificates and of arbitrations. In these two regards, the vesting certificate will be a better instrument than a privately drawn deed of transfer.

The point was made that another purchaser for value could acquire title to property if the vesting certificate had not been registered in the Registry of Deeds. That is unreal. There would not be any question of the second purchaser's getting possession of a house which is not the landlord's to sell. If it is only the ground rent that has been sold to him, he has no security for it while the former tenant has a statutory fee simple. Why the [164] second purchaser should purchase such property is beyond understanding.

If registration were to be compulsory it could only be justified on the basis of giving the service free. This was fully considered in the context of both the former Minister's Bill and the present one and it was never the intention to give such a service. As I pointed out here, this Bill proposes the reduction to minimal proportions —and I use those words purposely— of the legal costs of purchase. The Government's financial commitment is substantial and there cannot be a question of the taxpayer having to foot the bill for registration, either in the Land Registry or the Registry of Deeds. In addition, the physical impact of having to register as many as 250,000 extra cases over five years could be very serious.

It is accepted, of course, that registration is desirable and consideration is being given, as I have already said, to designing procedures which will encourage house owners to register, particularly where they acquire the fee simple in unregistered land. The cost of registration of the vesting certificate in the Registry of Deeds would be £4; the cost of first registration of a house valued at £20 in the Land Registry would be £5.50; the cost of transfer from the leasehold register to the freehold register of a house with a ground rent of £10 would be £2.90 and the cost of registering the fee simple of a house valued at £20 on registered land would be £5.60. A map would be required only in the second example, that is, first registration in the Land Registry, and that would have to be paid for by the applicant.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  All that is agreed.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I have spelled out the position on a number of occasions during discussion on the amendments. It should come as no surprise to anybody who understands the purpose of the Bill and the purpose of my predecessor's Bill. We all want to see this problem being tackled; it is not a political football. I believe that what we are enacting through the Oireachtas [165] will provide a scheme whereby people may buy out their ground rents at minimal costs. I have dealt with the question of registration and I am quite prepared to give every consideration to encouraging people to register.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  The Minister possibly underestimates the necessity to register. He agrees that it is desirable, but any practising lawyer will tell him that an unregistered title would not be acceptable from the conveyancing point of view. In that context it is not only desirable but virtually essential. I accept that it is not essential in most cases to convey the freehold but anyone who owns his house must be in a situation where he can freely sell that house. In some cases it is essential and that applies in the area of compulsory registration where, under the Registration of Title Act, 1964, the document of transfer is inoperative unless it is registered within six months.

The people should not be misled on this. I agree with the Minister that people should be encouraged to use this Act but it must be made clear that in the context of registration anybody wishing to benefit from this Act should register their title. In relation to the cost, the fees mentioned by the Minister relate solely to the fees payable to the relevant Government Department, be it the Land Registry or the Registry of Deeds. The fee which one would pay to the Land Registry in relation to an application for first registration is quite small but the Minister may not be aware that it is normally necessary to prepare an affidavit about five pages long covering all sorts of historical background, making the case for registration. In addition rulings on title are issued which are often very complicated and involve further expense in getting certificates from the Valuation Office, the Registry of Deeds and so on. If the Minister considers that registration is such a simple procedure he should be made aware that it is not so simple that any ordinary person could do it without legal assistance.

I take considerable encouragement from the Minister's reference to simplified procedures for registration. This is highly desirable. In many cases [166] where unregistered property is involved, to register a deed it is necessary to prepare a document called a memorial, and to have this sworn before a commissioner, and a person without legal experience could not do this. If the Minister as part of this scheme were prepared to look at the simplification of registration procedures, it would be a considerable addition. Subject to that, and subject to the householders and the ground rent tenants knowing what the situation is, we can leave the matter rest.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  In endeavouring to minimise the costs involved in this matter the Minister has made a special effort. In some instances we are dealing with quite valuable properties and what may be occurring is that in the efforts to minimise the costs the Minister is going some of the way but not all of the way. In relation to the application for first registration which the Minister referred to it is not good enough to say that the fee involved is £2 or £3. The preparation of the application for first registration will take a long time and will be expensive as there is a lot of work involved. It is essential that the application be made immediately upon the issuing of the vesting certificate.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  It is a question of a difference between us as to whether we should compulsorily require people to do it or encourage them to do it or to do it for them. Registration becomes essential in relation to land before a sale takes place and until such time as another transaction takes place one can encourage people to do what they want to do rather than cause the terrible problems which compulsion would cause. In an effort to encourage people certain procedures can be worked out to give people an incentive to go ahead and do what we all believe is best.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  A middle course would be to simplify the procedure so that in effect people could do it themselves.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  We have already done a lot of homework in regard to [167] simplifying procedure which is something that we are all agreed upon.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  The Minister has outlined the choices available but in the long term for the satisfaction of everybody it is essential that it would lead to the full freehold title.

Section 23, as amended, agreed to.

Amendments Nos. 42, 43 and 44 not moved.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  I move amendment No. 45:

In page 13, lines 40 and 41, to delete subsection (3).

This section gives me some concern. This section deals with the duty of the Registrar of Titles as to applications under Part III of the Bill.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  In the order of priority in which they are received.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  We are dealing with the vesting of fee simple in dwelling houses. The section deals basically with the order in which they are received under this part. Does the Minister intend to extend the five-year period mentioned earlier in the Bill? If a number of people do not move to have their fee simples purchased until about four-and-a-half years after the passage of the Act it could occur that quite a large amount of applications that are not processed will be on hands at the end of the five-year period.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  They will all be processed as long as they are in within the five years.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  The Bill says:

No action shall lie against the Registrar in relation to the duty imposed upon him under this section.

That section is unnecessary. Any Government Department or semi-State body involved in a matter of this nature should be accountable for any mistakes they make. They must be liable to pay any costs that arise from actions brought against them in court. Otherwise a Government Department [168] is being exempted from liability and responsibility in court. That sort of exemption should not be included in legislation of this nature. Professional people, Government Departments and semi-State bodies should be required to stand by their decisions and should be held accountable for their mistakes. In this House if anybody makes a mistake he or she has the press and the public to answer to and that is a good thing. I cannot see why the Minister is asking the House more or less to indemnify the registrar against his responsibilities under this section. I can see no reason why the registrar should be exempt from responsibility in our courts. Until I hear good reasons from the Minister for this situation I shall continue to hold that view.

An Ceann Comhairle: Information on Joseph Brennan  Zoom on Joseph Brennan  Is the amendment withdrawn?

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  We would like to hear the Minister.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I think I have answered the first question raised by the Deputy. In answering the second one I probably answered the first also. The Deputy is right in assuming that the Bill covers a five-year period and no more than that, but I assure him that any application received before the expiry of the period will be processed. Once notice of an application is given the rights of the person concerned are protected all down the line.

Subsection (3) provides that no action shall lie against the registrar in relation to a duty imposed under the section, that is the duty to deal with applications in order of receipt. Section 24 (1) imposes a duty on the Registrar of Titles to deal with applications in order of receipt. This is tempered by the discretion given by the registrar in subsection (2) to depart from the strict order of receipt in very clearcut circumstances. This is an unusual statutory provision; rarely does a statute regulate details of administrative procedure. It is considered necessary in this Bill because of the likelihood that the scheme will attract a very large response on the passing of the Act. It would be most inappropriate [169] if a legal action should lie against the registrar because of the way he uses or refuses to use his discretion. I believe it could defeat the purpose of the section which is to achieve maximum efficiency in dealing with applications if such actions could be brought. I also believe, and I hope the Deputy will accept, that ridiculous results could ensue if the registrar were open to an action. Cases to be dealt with today would have to be held up until a more difficult case which had priority had been completed. I think the Deputy and I are ad idem on this, that there is a long delay in matters being dealt with in the Land Registry. I gave a very considered opinion earlier in the debate that at least 25 per cent of the delay is due to the fact that people want to jump the gun in having their applications dealt with. I am as guilty as any Deputy in respect of approaches of people I represent, whether professional people or others who want jobs done, in going to the Land Registry to get ahead of somebody else. That accounts for at least 25 per cent of the actual delay. I am strongly advised that for proper working of this Bill we will ensure maximum efficiency by having it as it is. I think this is commonsense.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  I am glad to have heard the Minister and I fully agree with most of what he says.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I thank the Deputy. I am glad of the opportunity of saying it.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  I have found the Minister most courteous and helpful.

Amendment, by leave, withdrawn.

Question proposed: “That section 24 stand part of the Bill.”

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I agree with the Minister in relation to the priority being given to applications under the Bill. The Bill may be a little loose as regards the circumstances in which the registrar would exercise discretion to take a particular application out of its normal place in the list but, knowing the common sense of those who work in the Land Registry I think the provision will be used sensibly by them. I [170] can see situations of considerable difficulty relating to somebody selling a property or possibly obtaining a mortgage where a special effort has to be made to complete the job as quickly as possible. I approve of the section, having shared to some extent the reservation of my colleague.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I can understand that.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  I am quite happy with the section as phrased. My amendment was designed to elicit a full explanation about the insertion of this exemption provision which I consider rather unique. I have had occasion to go to the Land Registry like the Minister to have matters expedited and I found the staff courteous, efficient and helpful and they co-operate wherever possible. They are doing a very difficult job.

Question put and agreed to.

Question proposed: “That section 25 stand part of the Bill.”

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  I am opposed to this section. I have already given some reasons for my views. I believe that this is a matter that ideally should be dealt with at the different levels by the county registrar in the various counties. Now, as outlined earlier by the Minister, when people will receive only a vesting certificate and where the registration is not actually concluded and the person not actually registered in the Land Registry as a result of an application under this Bill, I feel more strongly than ever that the matter can be dealt with quite simply and efficiently by the county registrars. All our county registrars are skilled in legal matters and have many years experience and they would have little difficulty in dealing with these applications and furnishing vesting certificates. If the matter were brought under the jurisdiction of county registrars it would mean additional staff being employed in the 26 or 27 offices throughout the country. It would mean decentralisation which would be spontaneous and proper. Much of the decentralisation has been of a forced type but in this [171] instance it would be on a proper basis. When dealing with this section I believe it is essential that the Minister should give this view serious consideration as it is most important.

An Leas-Cheann Comhairle: Information on Seán Browne  Zoom on Seán Browne  The Chair would like to point out that we had a very long debate on this matter already and also a division, if I am correct. I do not want to curtail any discussion on this section but it is only right to point out what is the case.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  Ideally the applications should be processed through the county registrars and my view was reinforced when we were told that the vesting certificates will be furnished. This could be done by the county registrar and the person could then go to the Land Registry or to the Registry of Deeds at a later stage to have registration effected.

If my first choice is not accepted, my second choice—one that has not been proposed by any party up to now —would be the Land Commission. There is not the same shortage of staff as in the Land Registry. Have the Department considered that there are many qualified legal advisers in the Land Commission offices in Dublin? I accept that there may be some difficulties with the various Land Acts and the setting up of the Land Commission but I doubt it. In the Land Commission offices throughout the country there are people skilled in mapping, who are au fait with legal technicalities and familiar with local circumstances. The annuities on many of the holdings throughout the country are almost bought out and, consequently, there are people in the collection branches in the Land Commission who might be able to help with regard to this Bill. I know that the people concerned are quite busy but many of the estates with which they are dealing have been bought out and the Minister may be able to use those people to help in implementing the measure before the House. These people might be attached to the Land Commission offices throughout the country or based in Dublin or Castlebar.

[172] The functions, powers and duties to be conferred on the Registrar of Titles will be limited enough. They will be limited to the furnishing of the vesting certificate and dealing with arbitration and so on. They will not furnish the full absolute fee simple. They go only a certain distance and this could be dealt with more effectively first by the county registrar or, secondly, through the Land Commission. I would ask the Minister to reconsider this matter. The functions and powers could be much more appropriately dealt with by those two bodies.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I wish to comment on the section from another angle. The section purports to permit the powers and duties to be delegated to officers, I presume to officers of the Land Registry, not of the Department of Justice?

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  They are all officers but I meant the Land Registry.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  Under the provisions of section 21 the arbitration powers and duties provided for in the 1967 Act will apply for the purpose of this measure. Therefore, the position is that the powers and duties that can be exercised by the Registrar of Titles or by any of his officers as shall be authorised include the powers and duties that are superimposed as a result of the earlier provisions in the 1967 Act.

It is relevant to look at the extent of those powers and duties. Under section 17 (3) these powers include the right to make an order for security for costs, discovery and inspection of documents and interrogatories, the giving of evidence by affidavit and, most important, the examination on oath of any witness. It is clear to me that any person who has such powers is carrying out a judicial function and in so doing we must look at the type of person that will carry out that function.

I refer the Minister to the discussions that took place on the 1965 Bill that was subsequently enacted in 1967. I was not a Member of this House at the time but I understand that exception was taken to a similar power in the 1965 Bill, to some extent in this House and to a greater extent in the [173] Upper House, on a number of points but particularly on a constitutional basis.

The points made at the time were accepted by the then Minister and the particular power of delegation was withdrawn. I am concerned that we have this power in the Bill before the House. I appreciate the necessity for it. It results from the fact that we are transferring the arbitration powers from county registrars throughout the country and centralising it with the registrar and he will not be able to deal with all of them. It is a by-product of that decision. In arbitration proceedings under the 1967 Act every single one had to be conducted personally by the county registrar and where the county registrar for one reason or another—particularly if he had a personal interest—could not deal with the arbitration himself he nominated the county registrar for the adjoining or other county to deal with the matter. In effect, it was the county registrar himself who dealt with the matter.

Previously I raised the question of the Registrar of Titles carrying out a judicial function. I am not referring to the present Registrar of Titles personally but I think it relevant to look at the basis and the requirements of the appointment. Normally the county registrar has practice and experience in the courts but there is no necessity for such practice and experience on the part of the Registrar of Titles. Even more so, what will be the qualifications of the officers nominated to carry out these judicial functions? If such power of delegation had been left in the earlier Act, the messenger in the courthouse could have been nominated to carry out arbitration proceedings because he was an officer who would come within the terms of that provision. I am concerned about the constitutionality of the matter. The Minister has assured me that he has looked into it. I do not know if the points I am now raising have been considered. I am also concerned from the point of view of justice not alone being done but being seen to be done. I have absolute faith in the impartiality of the registrar and I have faith in the fairness and impartiality of the [174] people in the Land Registry. We must ensure that the people who carry out arbitrations, those who carry out judicial functions, are qualified to do so.

I am raising the question of constitutionality and I am also raising the latter point that anybody going before an arbitrator must be assured that the person carrying out that judicial function has the proper qualifications to do so. This can be done by having a further look at this section, by limiting it to people with such proper qualifications. In the light of what has been said from this side of the House in a non-political sense and in an effort to make sure that the Bill will be a good one when it leaves the House, the constitutionality aspect might be looked at again. The question of tightening up the provisions of this section to ensure that anybody carrying out arbitration has proper qualifications to do so should be looked at. The House and the public should be assured that those who carry out arbitrations are members of the Land Registry who have qualifications and, if possible, experience in dealing with the type of matters which would come up on an arbitration.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  Section 25 is a provision somewhat on the lines of section 13 of the Registration of Titles Act, 1964 and provides, as is agreed is obviously necessary, that any of the powers and duties of the Registrar of Titles under part 3 may be exercised and performed by such other officers of the Land Registry as the Minister for Justice of the day may authorise in that behalf.

Deputy Enright might not hold it against me if I do not deal with his suggestion about the Land Commission because I would probably be out of order in dealing with it. This is a very wide area and I do not think that I could deal with it under this particular section. I believe, from my own knowledge, that the Land Commission would not be in a position to implement the Bill.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  I am not too clear about whether or not they have power. They are local officers.

[175]Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  One has to be careful here. This is not my area of responsibility. I think, in fairness to the Land Commission, that one could count their legal staff if not on the fingers of one hand definitely on two.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  I accept that their legal staff are very busy.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  As rural Deputies the two Deputies opposite and I have often heard many complaints laid at the door of the Land Commission with regard to the approach they have in straightening out title of property and other matters. We cannot go into that now. I am quite prepared, in the light of what Deputy O'Keeffe said, to undertake to have an examination carried out of the precise powers to be exercised by the arbitrator before Report Stage. However, I am very definitely assured of the constitutionality of the overall position concerning arbitration by the Registrar or by his officers. I am quite prepared, in the light of what the Deputy said, to undertake to have an examination of the matter and when we come to Report Stage we will tease the matter out.

Question put and agreed to.

An Leas-Cheann Comhairle: Information on Seán Browne  Zoom on Seán Browne  Amendment No. 46 is in the name of the Minister. Amendment No. 47 in the name of Deputy O'Keeffe is an alternative. If Amendment No. 46 is accepted Amendment No. 47 cannot be moved.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I move Amendment No. 46:

In page 14, subsection (2), line 4, to delete “acquisition of the fee simple” and substitute “the lease or for the period during which any part of the purchase price of the leasehold interest remains unpaid, whichever is the greater”.

My amendment is intended to go practically all the way towards meeting the point of Deputy O'Keeffe's amendment. The Deputy wants the 25-year period in which local authorities are being allowed a measure of control over houses bought from them at fee simple to start to run not from the date of [176] the acquisition of the fee simple as in the Bill but from the earlier date on which the leasehold interest was acquired by the tenant.

My amendment achieves this except in a case where the tenant has not in effect purchased the house, although he has been given a lease, for the simple reason that he has not completed the payment of the purchase price. This is necessary because the lease or transfer order under which the house was originally leased also operates as a mortgage agreement. The principle of the Deputy's amendment, however, is being conceded, that is that the 25 years are to run from the time when the tenant effectively becomes the owner of the house.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I appreciate the Minister's approach to this particular problem. The reason I put down the amendment was that I felt it was unfair that the clear freehold should date from the date of the operation of this Bill to acquire the freehold. We could find a situation where somebody with a local authority lease going back many years would have a further 25 years added on to his term whereas somebody who had purchased under a tenant purchase scheme, perhaps in the previous 12 months, would then only have an additional 25 years added on. It seems to me to be unjust and unfair. I accept that the Minister has made a gallant effort to deal with the point.

It is not really of much use to a local authority tenant to have his freehold while the lease term lasts or while a part of the purchase price for the leasehold remains outstanding. In effect, all the other conditions will apply during that time. I can see that there are difficulties in that area and that there is need for some control for a limited period. The effect of the amendment now proposed by the Minister at least provides a greater amount of fairness and equity between local authority purchasers. On that basis I am prepared to accept that a fair attempt is being made to do that.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  The Minister is continuing some of the terms and conditions in the lease for a period. If [177] the tenant pays the purchase price that is due on the property why is it necessary to impose any terms and conditions further?

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  There is a strong desire on the part of local authorities to preserve their stocks of houses. As the Deputy is aware, they are not open to people who are not eligible for housing. This, I believe, is an effort to try to preserve stocks of houses. There are certain counties, in particular seaside counties, where local authority houses would be very comfortable summer homes for a lot of people who are not eligible for subsidised housing.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  I see the point, but under the present housing Acts I am sure the Minister is aware that people buying local authority houses must pay the full market value of the house.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  Except that not everybody is eligible to buy them.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  I accept that there is a difficulty in that a wealthy speculator could buy up 100 dwelling-houses in an area and sublet them at enormous rents. That is a difficulty that must be faced. People buying out their house from a local authority must pay the market value and they are being restricted in their dealings with the property.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  Would the Deputy agree that essentially the only restriction that is on such a person is that the local authority will restrict those to whom the house can be sold?

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  In so far as the restriction on the terms and conditions only affects the right of resale to people who come within the meaning of the Labourers Acts—they are very wide and cover a multitude of people—I would go along with the Minister in this. The Minister's amendment states:

In page 14, subsection (2), line 4, to delete “acquisition of the fee simple” and substitute “the lease or for the period during which any part of the purchase price of the leasehold interest remains unpaid, whichever is the greater”.

[178] Does the Minister intend extending it further?

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  It has nothing to do with the length of the lease. It is when the 25 years starts to run.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  I am sure the Minister is aware that all leases are still working away on ground rents. I even saw them on leases yesterday. If I get a loan from a building society to build a house and later decide to sell it there is no prohibition on me, but there is a restriction on those living in local authority houses even though they pay the full market price. People must pay between £8,000 and £9,000 for a county council semi-detached house with a small front garden and in many cases no rear garden. Would the Minister give more thought to this because those people are entitled to a fair crack of the whip.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I will do that.

Amendment agreed to.

Amendment No. 47 not moved.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I move amendment No. 48:

In page 14, between lines 29 and 30, to insert:

“(9) Where a housing authority has not the fee simple in any land on which it has provided dwellings under the Housing Act, 1966, the authority shall be entitled to acquire the fee simple and for that purpose the provisions of Part II shall apply to the authority.”.

This amendment is essentially a drafting amendment intended to cater for the situation where the local authority must give the fee simple but has only a leasehold interest itself. Under section 3 of the Landlord and Tenant Act, 1931, the local authority is deemed to be the lessee and as such has of course the right to acquire the fee simple. However, a doubt has arisen as to whether this provision of the 1931 Act can be properly applied. If applied it could be held that the local authority must act for each individual tenant in the acquisition of the fee simple from the superior lessor and this is not what is intended. What [179] is wanted is that the local authority can move to get the fee simple of all or any of the land on which it has built houses so that it can comply with the Act. In cases of dispute, for instance, as to the purchase price it is the 1967 Act procedure which will apply and not Part III of the Bill.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  Do I take it that the local authority will have power to buy out the fee simple?

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  They will. They always had but there was doubt as to whether or not they should. This is doing away with the doubt.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  We then revert to the earlier section whereby the local authority had bought out the fee simple, but where does that leave the tenants of the houses later? Is the Minister dealing with the land on which local authorities have built houses which they have leased to tenants?

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  Who have sold their houses.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  Who have sold their leasehold interest in the houses?

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  Yes.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  The local authority buy out the fee simple and grants fee simple to the tenants, subject to the restrictions we mentioned earlier?

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  Exactly.

Amendment agreed to.

Question proposed: “That section 26, as amended, stand part of the Bill.”

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  The section provides that it shall operate in relation to the leases to tenants of dwellings provided by the housing authority under the 1966 Housing Act. I am concerned about the situation in relation to houses provided by housing authorities prior to 1966. I accept that under the 1966 Act there is a provision which incorporates houses provided under earlier housing Acts. I want to ensure that the terms would not be confined to those who purchased under the 1966 Act and that tenants who got a lease of a local authority house under a [180] tenant purchase scheme prior to that year would also be entitled to the benefit of this section. Even though section 118 of the 1966 Act refers to houses acquired under that Act or deemed to have been acquired it would be better to make it clearer here.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I understand that those houses are covered by adaptation in the 1966 Act.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I believe there is a provision in section 118 of the 1966 Act that covers that, but I am not certain if this is so. We want to ensure that we have a simple Bill that will be understood by as many people as possible.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  It is not a very easy thing, as the Deputy knows.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I am becoming more and more aware of it. Anybody who had acquired his title under a tenant purchase scheme prior to 1966 would immediately assume that he was not covered by this Bill. It is highly unlikely that he would be aware that there was an adaptation procedure provided by section 118 of the 1966 Act. From the pont of view of making the position absolutely clear to anybody reading the Bill to see how he stands under it, the Minister might consider the point.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I will. It is a drafting point, if any, and I am quite prepared to look at it.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  On the other matters in the section there is not much more to say at this stage. I presume there is no question of arbitration. The figures are quite clear. The tenant is entitled to purchase, bearing in mind the amount referred to in section 17 (3) of the Bill which will be the statutory multiplier. I presume that this will apply even in the case of an old purchase by a local authority tenant where less than 25 years has to run in the lease.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  The Deputy is right. In subsection (5) it is clear.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  The automatic multiplier applied where there was 25 years to run in the lease. Taking it a stage [181] further, if the lease to the local authority tenant under an early purchase scheme has less than 25 years to run I assume it would be the intention of everybody that the tenant would not suffer as a result.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  That is right. The Deputy will see that subsection (5) makes that very definite and confirms the Deputy's assumption.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  Yes, but of course section 17 (3) relates to a lease which has not less than 25 years to run. With regard to a case where a local authority lease has less than 25 years to run, I am sure the local authorities will be fair in the administration of this. Will the tenant in all cases be entitled to pay not more than the statutory multiplier?

Question put and agreed to.

Question proposed: “That section 27 stand part of the Bill.”

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  I want to ask the Minister one simple question. I presume that the ordinary civil remedy he has referred to is that when a person is in arrears of rent for a period the landlord can sue in the courts as if it was an ordinary debt due.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  That is the position.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  If that is the position I would like to go on record as welcoming this section. The entitlement of a person to take possession of a dwelling-house if the occupant failed to pay the rent, which was often quite small but may have been a sizeable amount to the tenant concerned who had rights in the dwelling-house, was a great bone of contention and caused widespread unrest throughout the length and breadth of the country. This provision which prevents landlords from entering upon property and ejecting tenants for non-payment of rent is welcome. The provision whereby the Minister allows the landlord to sue for moneys due as an ordinary debt is welcome also in that it does not take away the right of the landlord to moneys due to him. It prevents him from acting like an oldtime landlord using the iron fist, coming [182] in and taking possession of a dwelling-house and ejecting the occupants. That was a scandalous situation which went back to ancient times. It is good that the provision of right of entry is being scrapped. This whole section is very welcome and Deputies on all sides of the House must be in agreement with it.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I would like to endorse what Deputy Enright has said. The old concept of eviction brings up memories of our historical past. I agree totally with the suggestion of the Minister that the right of re-entry, the right in effect of eviction, should be withdrawn. It is no harm to make it clear, however, that such right is withdrawn only in the case of ground rents, and we are dealing solely with ground rents in this Bill. Hopefully, in the near future problems in other areas of landlord and tenant will be before this House. There is great urgency in that area, but we will clear the ground rents question first. We have nearly finished the Bill.

Is the Minister satisfied with the drafting of this section? The right of re-entry arose first of all under a normally specific term of these leases, and it also arose by way of ejectment for non-payment of rent. There are other rights of ejectment which possibly could arise; ejectment for breach of covenant and so on. No right of ejectment should arise in any case where a ground rent is involved; where in effect the person who owns the house is the person in possession who is obviously paying only a few pounds a year in ground rent. That is the owner of the house, and in such cases all rights of ejection or eviction should be removed. I can see situations arising where the landlord could be raising a point on breach of covenant. Perhaps the Minister would look at this aspect as to whether all rights of ejectment and eviction in such cases should be removed.

Question put and agreed to.

An Leas-Cheann Comhairle: Information on Seán Browne  Zoom on Seán Browne  Amendment No. 50 is consequential on amendment No. 49 and therefore these amendments may be taken together.

[183]Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I move amendment No. 49:

In page 14, lines 39 to 43, to delete subsection (1), and substitute:

“(1) Where a person having an interest in land acquires the fee simple in the land, all covenants subject to which he held the land, other than a covenant specified in subsection (2), shall thereupon cease to have effect and no new covenant shall be created in conveying the fee simple.”.

This is purely a drafting amendment. Following discussions with the law society it was considered desirable to clarify that this provision applies only to the survival of covenant in the context of the purchase of the fee simple by a lessee. It does not deal with the situation in which fee simple land is being transferred in the ordinary way. Where that Act specifies the classes of covenants which may have survived these are the only classes which survive.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  Do I take it that the law society have examined the amendments proposed and are satisfied that they meet the points raised by them? They were very legitimate points.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  The Deputy reasonably assumes so.

Amendment agreed to.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I move amendment No. 50:

In page 15, subsection (3), line 11, after “1967”, to insert “by a person who had an interest in the land”.

This is purely a drafting amendment. It is consequential on the one that has just been dealt with.

Amendment agreed to.

Mr. G. Collins: Information on Gerard Collins  Zoom on Gerard Collins  I move amendment No. 51:

In page 15, between lines 14 and 15, to insert:

“(4) Section 72 (1) of the Registration of Title Act, 1964 (which [184] relates to burdens that affect land without registration) is hereby amended by the insertion of:

‘(r) covenants which continue in force by virtue of section 28 of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978'.”.

Amendment agreed to.

Section 28, as amended, agreed to.

Section 29 agreed to.

Title agreed to.

Bill reported with amendments.

An Leas-Cheann Comhairle: Information on Seán Browne  Zoom on Seán Browne  When is it intended to take the next stage?

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I have no wish to hold up the Bill but there are a couple of matters that I may have to deal with on Report Stage so I should like some time before then.

Report Stage ordered for Wednesday, 17 May 1978.


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