Thursday, 1 April 1982
Dáil Eireann Debate
Mr. Taylor: In regard to the definition of “dwelling” in this section as meaning a house let as a separate dwelling or a part so let, I am wondering whether, for instance, a flat over a shop would be excluded from that definition.
Briefly, this is to give effect to works which a tenant might be obliged to undertake such as treating dampness and which professional evidence in court would argue is a structural alteration. Subsection (1) of section 7 provides that:
“improvement” means any addition to or alteration of a dwelling carried out by the tenant or any of his predecessors in title on or after the 31st day of December 1960 which adds to the letting value of the dwelling and includes any addition or alteration connected with the provision of any services  to the dwelling, but does not include work of repairing (except where such work was the responsibility of the landlord and he failed to carry out the work), painting and decorating or any of them....
I am simply saying that the tenant should get the benefit by way of capitalised reduction on the gross rent for work which could be of a structural nature but which was not part and parcel of what was perceived as the landlord's responsibility but which would improve the value of the property. Damp proofing would be an example.
Mr. Raphael Burke: The amendment is not necessary and therefore I do not propose to accept it. Structural alterations to a dwelling are included already in the earlier part of the definition. The second part of the definition in respect of which amendment is being sought deals with the provision of services to the dwelling. The section is framed so as to ensure that, for example, a tenant installing a sewerage system would be entitled to have that work defined as an improvement. The definition of “improvement” is important in that a tenant can have his rent reduced to take account of an improvement and can be compensated for an improvement on his quitting a dwelling. The right to compensate him for improvements did not exist under the Rent Restrictions Act but does exist under the landlord and tenant code. What the Deputy is suggesting is covered in the first part.
Mr. Raphael Burke: The second part of the definition includes any addition or alteration connected with the provision of any services to the dwelling but does not include work of repairing, painting and decorating.
“(a) who would, at the commencement of this Act, be the tenant of the dwelling if the Rent Restrictions Act, 1960, and the Rent Restrictions (Amendment) Act, 1967, had full force and effect at all times from their passing until such commencement, and”.
This is a technical drafting amendment to the definition of “tenant” in section 7. The word “tenant” is crucial to the rights conferred by the Bill. It is essential to ensure that “tenant” includes all persons who would be entitled to stay in a controlled dwelling had the former Acts not been found to be unconstitutional. Unless every such person is included in the definition of tenant his rights to retain possession under the Bill would be in jeopardy. Under the amendment all present tenants of controlled dwellings, whether contractual or statutory tenants, are covered. The reference to the rent restrictions code is being confined now to the 1960 and 1967 Acts for the purpose of pinpointing a tenant. It is taken that the two Acts had full force at all times since their enactment and not solely at the date of the commencement of the new legislation. This will remove any doubt particularly about spouses and members of families who succeeded to a tenancy after April 1980, the date of the original High Court judgement and from which time the status of a person succeeding as tenant could be in doubt.
Mr. Taylor: The original subsection (1)(a) refers to the Rent Restrictions Acts, 1960 to 1981. It is not for me to explain the Minister's amendment. The distinction seems to be that in his amendment he refers to the Rent Restrictions Act, 1960, and the Rent Restrictions (Amendment) Act, 1967, thereby omitting the reference to the invalidated 1981  Bill. If that is the point, it is understandable enough.
Mr. Shatter: We are confusing two sections. We are considering section 7, amendment No. 8. The Minister is talking about section 8, amendment No. 9. We are concerned with amendment No. 8 to section 7 on the amendment list.
Mr. Shatter: This is understandable on the basis of what Deputy Taylor said. Clearly the reference in the original Bill to the 1981 Act is incorrect, because the 1981 Bill never became an Act. The proposed Amendment is intended to correct that. The Minister is referring to the spouse who is mentioned in the next amendment.
Mr. Raphael Burke: I am advised that there has been some considerable doubt that any spouse who became a tenant after April 1980, when the original High Court decision was taken, would be eligible to be defined as a tenant on the commencement of this new Act. We want to clarify that situation.
Mr. P. Barry: Is it not the position that there is nothing since the 1967 Act except the temporary legislation? Anything included in the 1967 Act is in operation until this Bill becomes an Act. Is not that correct?
Mr. Shatter: I accept that but there is a certain degree of confusion. We  thought we were discussing amendment No. 8 on page 6. At the top of the page there is amendment No. 7 which Deputy Quinn has withdrawn. Then we come to amendment No. 8. The Minister's advisers are discussing with him the amendment to section 8 which is amendment No. 9.
Mr. D. Andrews: The Minister has put his finger on it and Deputy Shatter has now picked up the point. There is an implied reference to the spouse in the word “tenant”. The Minister is giving us an additional meaning for the word “tenant”. The Minister's amendment must be prefaced by the definition of the word “tenant” which means “the person for the time being entitled to the possession of a dwelling to which section 8(1) relates and includes a person...” There is an implied reference to what the Minister is talking about when he mentions a spouse.
Mr. P. Barry: I do not want to muddy the waters any further. The Rent Restrictions Act, 1967, had full force and effect at all times from its passing until the commencement of this Bill. The Minister is trying to ensure that anyone who was affected by the court judgment of 1980 will still be deemed to be a tenant until this Bill comes into play. SECTION 8.
“(b) the tenant of the dwelling assigns or sublets his tenancy other than when he assigns or sublets his tenancy to his spouse or family as defined in section 7 (2), who is bona fide residing in the dwelling at the time of the assignment or subletting, or”.
We put forward this amendment because we understand it may happen that a tenant who, for reasons of health may have to move out of a dwelling and become institutionalised, may be dispossessed. I understand that under the present legislation a tenant retired and moved out of a town into the country, leaving his family behind him, and his family were subsequently dispossessed by the landlord. We are anxious that that should not occur under this legislation. That is why we are moving this amendment.
Mr. Raphael Burke: I can assure the Deputy that this amendment is not necessary. If a tenant moves out and leaves his family behind, once he does not do anything with the tenancy such as giving it up or anything like that, there is no difficulty, no complication. He is covered under the Act.
Mr. De Rossa: Perhaps some of the legal people might be able to help out in this. I understand that a family were dispossessed because the tenant retired, moved out of the house, and went to live in the country. Subsequently the family were dispossessed because the court held  the tenant had given up the tenancy of the house.
Mr. Raphael Burke: He does not give up the tenancy. If the rent continues to be paid he does not give up the tenancy, even though he is not there himself. If the rent is paid on his behalf, he does not give up the tenancy. He cannot surrender it without his wife's permission.
Mr. Taylor: Subsection (b) takes away rights from tenants in this category. There is the provision where he assigns his tenancy. Why was it found necessary to take away that ordinary basic right of transfer of the tenancy from a controlled tenant? I do not see why there should have been any great pressure to do that. It is an inherent right that a tenant should be able to transfer his tenancy.
Mr. Taylor: My point is that a statutory tenant, a tenant who is a controlled tenant, even within the limited measure of control that this Bill would give, should have the right to assign the tenancy.
Mr. Taylor: It is a slightly different point but it deals with the question of assignment of the tenancy. Deputy De Rossa is concerned to a lesser extent. I am concerned with the wider question that the right to assign has been taken away — in other words, that what we are now saying to a tenant is: “You cannot transfer that tenancy to anybody else.” I ask “Why not?” It is a basic fact that there should be freedom to assign a tenancy.
Mr. Raphael Burke: We are not saying it. The Supreme Court said it because it affects the property rights of the tenant. That was the original decision. But the principle in this Bill is that we are allowing tenancies to be transferred on death to a spouse and members of the family,  but not on assignment, and we are not withdrawing landlord and tenant rights.
Mr. Taylor: I did not think there was any directive given by the Supreme Court on the question of assignability of controlled tenancies. That point was not at issue at all. Traditionally any tenancy has always been assignable. That has been an inherent factor in our landlord and tenant legislation going back to 1931, when it was left open to tenants to apply to the court if a landlord refused consent to assign the tenancy. That seems to me to be a gratuitous hardship imposed on the tenant.
Mr. Raphael Burke: The general principle behind the Supreme Court's decision was that in this whole question of the indefinite transmission of tenancy from one to the other, “to the other” meant that the landlord had no hope in the foreseeable future of gaining rights to and possession of his property.
This is a drafting amendment to section 8 sub-section (4) of the Bill. Its effect is that a tenant who assigns or sublets his or her tenancy would not be entitled to compensation for improvements. In effect, if a tenant assigns or sublets, he loses all rights and benefits under the Bill. By assigning or subletting a dwelling it is being transferred to another person during the lifetime of the present tenant which is at variance with the intent of the Bill that a dwelling should transfer only on the death of a tenant, in accordance  with section 9 of the Bill, to a spouse or member of the original tenant's family.
I am moving this amendment on behalf of the Labour Party largely in response to the existing shortage of housing accommodation in the greater Dublin area particularly but also throughout the country generally in order to give a greater degree of security to tenants because the options of getting alternative accommodation are somewhat limited. The effect of the amendment is to extend the period of entitlement from 20 to 30 years.
Mr. Raphael Burke: One of the reasons leading to the finding of the Supreme Court that the Rent Restrictions Act was unconstitutional was that a landlord was being alienated from his property indefinitely. I consider that section 9 of the Bill goes as far as one can reasonably go to protect tenants. The present tenant and, on his death, his spouse, is being given a right to possession for their lifetime. Other members of the family who succeed to the tenancy are being given a right for 20 years from the commencement of the provisions of the Act, that is, into the next century.
The present Bill affords two important improvements to tenants compared with the 1981 Bill. Firstly, where a member of the family succeeds to the tenancy with less than five of the 20 years remaining, he can stay for a minimum of five years. Secondly, the rights under the Landlord and Tenant Act to a new tenancy after 20 years occupation of a dwelling are not being withdrawn in this Bill as compared with the 1981 Bill. Consequently, a tenant  who either himself, or jointly with his predecessors in title, have 20 years continuous occupation would be entitled to a new tenancy under the landlord and
“(9) On the expiry of the `relevant period', the tenant when in possession shall be entitled to a new tenancy in accordance with and subject to the provisions of the Landlord and Tenant (Amendment) Act, 1980.”.
 Where,...., more than one member of the original tenant's family was at the time of the relevant death bona fide residing in the dwelling, such one member of the family as may be agreed upon between them or, in default of agreement, as may be selected by the Court shall......
This is a question of succession as between the family when the tenant dies. I know this was done in previous legislation but I have often wondered about the wisdom of the court selecting one member of the family who may have resided there to be the tenant. Would the Minister consider amending that subsection to provide that all the members of the family who are bona fide residing there should become joint tenants of that tenancy rather than selecting one? One could envisage situations in which a court would select one person to be the tenant and in which there could be internal family disputes as a result of which some members of the family might be unwelcome there and could be ejected from the family home.
Mr. Taylor: I do not see why it would be unworkable when one considers that it is precisely what happens when a man who owns a house dies — all the members of his family succeed in equal shares if he has left no will. That is perfectly workable. Why should it be any less workable here? One wonders on what basis one particular member of the family would be chosen by the court. There could be five or six children, they could all be of full age and it could give rise to disputes  between them. Why not make them all joint tenants, they have all equal right?
Mr. Raphael Burke: If there was to be disagreement between family members, the recipe is just as suggested by the Deputy. The best way to handle it is through the formula laid down in subsection (5). It provides a simple mechanism for choosing among the members of the family living in the dwelling at the time of the death of the original tenant and his spouse. If they agree on the one member chosen, that is fine. If they do not, then the court make the selection. It is also for the court to decide in all cases if the prospective successor has been bona fide residing in the dwelling. If we were to use the suggested formula of Deputy Taylor it would be a recipe for chaos.
Mr. Taylor: Why draw a distinction between this situation and the normal inheritance situation? For example, if there is a widower living in a house with six grown-up children and he dies having made no will, the six children take equally. We did away years ago with primogeniture, single succession and that sort of thing. Tenancy here is important. Why draw a distinction because it is a tenancy situation rather than an ownership situation? The modern thought on this is that you have equality between children, between people in an equal category. This would seem to me to be putting the clock back and placing on the court the responsibility to nominate one particular person rather than having equality. Why not make them joint tenants? They are all children of the father who died. Why not give them equality here?
An Leas-Cheann Comhairle: Amendment No. 13 in the name of Deputy De Rossa has been discussed already.
Amendment No. 13 not moved.
An Leas-Cheann Comhairle: Amendment No. 14 in the name of Deputy De Rossa.
Mr. De Rossa: I think I will not move amendment No. 14 in view of the fact that the Minister has already given an undertaking that he will bring in enabling legislation.
Mr. Raphael Burke: Yes, I have already given that undertaking.
Amendment No. 14 not moved.
Mr. De Rossa: I move amendment No. 15:
In page 7, subsection (2), lines 45 and 46, to delete paragraph (b) and substitute the following:
“(b) the regulations in force under sections 24, 25 and 26 have been complied with by the Landlord.
We are anxious that sections 24, 25 and 26 be brought in under this section in order to ensure that, where rents are set by either a tribunal or District Court, whichever we have finally, the landlord will be compelled to carry out the necessary works in compliance with existing regulations. We want to ensure that the regulations are brought into effect. The section as it reads says that, if the regulations under section 24 are in force, the landlord has complied with the requirements of such regulations. We want to ensure that the regulations are enforced  and in fact brought into effect and that the landlord must comply with them. The section concerned relates to the registration of dwellings, the provision of rent books and the standard of the rented dwelling.
Mr. Raphael Burke: I know what the Deputy is trying to get at and I agree with the principle of what he is trying to achieve. My advice is that it would be quite impossible to operate under the amendment since it would be open to dispute whether or not the landlord had complied with the regulations, particularly as to whether a house met standards or not. The existing provision is that if a landlord is to get an increased rent he must satisfy registration requirements. That is something easily determined. What is suggested here is so broad in its implications that the advice I get on it is that it would be unworkable. While I agree with the sentiments behind the amendment, regrettably I cannot accept it.
Mr. G. Birmingham: Why does it depart from the provisions of the 1981 Bill? There was an additional obligation that the landlord had to fulfil in that case. The equivalent section in the 1981 Bill was section 4 (3) which imposes an extra obligation on the landlord.
Mr. Raphael Burke: I am advised that in fact this section is more onerous than the 1981 section.
Mr. G. Birmingham: In some respects it might be, but some of the obligations imposed by section 4 would no longer seem to apply.
Mr. Raphael Burke: Could the Deputy give me a specific reference?
Mr. G. Birmingham: Section 4 (3). I agree that this Bill moves along a somewhat different path, but I wonder why some of the provisions were abandoned. In the 1981 Bill there was a specific restriction on the coming into effect of a rent increase but that is not retained in this Bill.
An Leas-Cheann Comhairle: Would Deputy Birmingham allow me to dispose of the amendment and when we are discussing the section he can raise a point of this nature?
Mr. De Rossa: I am not altogether happy with the explanation that the Minister has given in relation to his reasons for not wanting to include them. I cannot see any great problem in including them. It should not be beyond the ingenuity of the Department to produce regulations which it would be possible to define as regards a certain job being completed. The regulations refer in particular to the registration of the dwelling, which is very straightforward, and provision of rent books, which is also straightforward. The only one is No. 26, which seems to be giving the Minister some problems and which would relate to the actual standards of the dwelling. I cannot see that the inclusion of these under section 11 to replace paragraph (b) would cause any great difficulty in the operation of the Bill.
Mr. Raphael Burke: I agree that No. 26 is the problem area and the advice I get is that it is a recipe for total confusion, difficulty and dispute between landlord and tenant. The Deputy has a number of amendments, Nos. 52-58 in regard to the whole matter of regulations which we shall come to later — the question of deleting “that the Minister may make regulations” and substituting “the Minister shall make regulations”. I shall be accepting those six or seven amendments because I think that it will be an improvement to put the imposition on the Minister to make these regulations. I think this will be a great benefit to the type of tenant the Deputy is trying to help.
Mr. De Rossa: On that basis, I withdraw the amendment.
Mr. Raphael Burke: To answer Deputy Birmingham, this is a matter of drafting more than anything else. In the 1981 Act (a) and (b) were to deal with the change from the controlled to the first increase  and (3) was to deal with subsequent increases. We now have it all under one roof, so to speak.
Amendment, by leave, withdrawn.
Section 11 agreed to.
An Leas-Cheann Comhairle: Amendments Nos. 16, 17, 18, 19, 20 and 21 have already been discussed.
Amendments Nos. 16 to 21, inclusive, not moved.
Mr. Quinn: I move amendment No. 22:
In page 8, subsection (6), line 18, after “costs” to insert “including legal, valuation and surveyor or such other professional fees,”.
Mr. Raphael Burke: We discussed this at length this morning. The existing construction of section 12 (6) is quite adequate to deal with the costs which Deputy Quinn's amendment seeks to encompass. There is no qualification of costs in the subsection. This feature, along with the powers given to the court to satisfy the provision having regard to all circumstances about the landlord and tenant, strikes the right balance between the interests of both parties. Under these circumstances I do not propose to accept the amendment.
Mr. Taylor: As I understand it; it is a fact that the word “costs” means legal costs. There are two kinds of orders that the court makes. One refers to legal costs, but if one is to get witnesses' expenses, particularly professional expenses, it must specify “and expenses.” I urge the Minister to agree that we insert after “costs” the words “and expenses”. That is essential to enable valuers'fees, which are a key part of these hearings, to be covered. The tenant will be left in an impossible position if he is not covered for his valuers' fee to go into court with him and it is into  court he is going. The word “expenses” is essential there; that is the element necessary to provide for his valuers' fee and without a valuer he is not in a position to go into court at all.
Mr. G. Birmingham: I support the point raised by Deputy Taylor. The word “costs” in the legal system is used not always on quite the same premises. It is certainly the case that, in the Superior Courts if one says “costs”, everybody takes it as meaning witnesses' expenses and everything else and no difficulty would arise. In the District Court the standard order made, if they wanted to compensate someone fully for their out of pocket expenses, is one of costs and expenses. A distinction is always made by a district justice in his order in a civil case between the scaled costs that are provided and the witnesses' expenses. A District Court examining this provision would have to have regard to the order it normally makes and its normal order is one of either costs, confined to the scaled costs for legal fees or costs and expenses. That is what happens in the District Court every day.
Mr. Shatter: The Minister takes the view that costs include the various items referred to in the amendment. If Members on both sides agree that costs should cover the items referred to in the amendment, I would ask the Minister in those circumstances to avoid doubt and accept the amendment. All the amendment will do will be to ensure that what the Minister says the section does will be implemented. It is a provision that will provide a degree of protection for both parties, but tenants in particular. The section does not guarantee that at present. If the Minister is disposed to allowing orders for costs made by the District Court to include the costs of estate agents, surveyors or other professional fees which a tenant incurs as a result of bringing such proceedings, then no harm can be done by including this. In fact, a great deal of good can be done in that it will avoid a degree of uncertainty which surrounds the section.
Mr. Raphael Burke: When the 1981 Act was referred to the Supreme Court for judgment this section was included. One of the main points in the arguments in the Supreme Court by those representing the landlords was that the subsection under discussion highlighted the anti-landlord element of the legislation. A risk I am anxious to avoid is that the legislation is held to be anti-landlord or anti-tenant or pro-landlord or pro-tenant. It is important that we get the balance right. It is important that in the interests of settling this complex issue involved in this major social problem this Bill decides the matter once and for all. It would be inadvisable and dangerous to extend the provision at this stage. I accept the Deputy's suggestion, but my interpretation of “costs” is that it includes costs and expenses. I do not wish to include the terms of the amendment at this stage because the subsection was one of the key areas highlighted as being anti-landlord. We must be careful to ensure that the Bill is seen to be a balanced piece of legislation between landlord and tenant.
Mr. Quinn: I am concerned at the Minister's attitude to a number of amendments which are less damaging to the Bill than are some of his own. The commitment to co-operation has fallen somewhat short of what I expected. The gross rent will be fixed by the courts and from the gross rent will be deducted an allowance for items such as improvements, alterations and so on. The value of them will be assessed by the court after it has heard expert evidence. It would be reasonable, from my own experience, to assume that for an architect to respond to a solicitor's request to give an estimate of the value of work done over a period of ten or 20 years he would need quite often the experience of a quantity surveyor. That quantity surveyor may need the assistance of a builder to give an estimate of the costs of the works to test it against the market prevailing at that time. The expense involved in all that, having regard to what the legal Deputies have said, would be substantial. If there is any doubt, surely the Minister can  respond by including the words “and expenses” in the subsection. What is the point of being here if we are not going to get some movement on this? It must be remembered that we are discussing the improvement of legislation about which we are all agreed.
Mr. D. Andrews: Unlike Deputies Shatter and G. Birmingham I do not have a big District Court practice and that is my misfortune.
Mr. Shatter: For the Deputy's information I should like to state that I do not have a big District Court practice.
Mr. D. Andrews: In my view the Deputies are seeking to include unnecessary words in the subsection. I would have thought that expenses would in the ordinary way follow the award of costs.
Mr. Taylor: No.
Mr. D. Andrews: I accept that they do not automatically follow the award of costs, but in the ordinary way I would have thought that a district justice would award costs and expenses to the successful party. Why is it necessary to enshrine that in legislation?
Mr. G. Birmingham: The almost universal practice in the District Court is that an order for costs follows a successful conclusion of a civil action, but the costs that can be recovered are limited by the scale that applies. Quite often witnesses' expenses, even if it is only people travelling to court in a taxi, will amount to as much as can be recovered under the scale of legal costs. It is because there is no taxation procedure in the District Court that it is the practice for a district justice to measure the amount that can be allowed for witnesses' expenses. The order the district justice is accustomed to making is one of costs and expenses. It is by no means unusual for the district justice to differentiate, because he may take the view that a person was entitled to the legal costs but that a witness was not necessary or that a witness had taken a day off when a half day would have sufficed.  In the District Court, as distinct from any other branch of the legal system, on the successful conclusion of a case the district justice turns his mind separately to the question of costs and expenses. With a view to being helpful to the Minister I should like to make a suggestion. If the Minister is concerned that accepting the amendment as phrased in full would seem to be stitching in an anti-landlord view into the Bill, I suggest that he include after the word “costs” the words “and expenses”. That would meet the situation and I do not think the Minister need have the fears indicated.
Mr. Quinn: If the Minister indicates that that will be included on Report Stage, I will withdraw my amendment.
Mr. P. Barry: That suggestion seems reasonable.
Mr. Raphael Burke: I am agreeing to that and I will not use the wording suggested by Deputy Quinn. I will take a chance on that now, but I want all Members to realise that this was one of the areas highlighted in the Supreme Court case.
Mr. D. Andrews: As a triumph to Deputy Birmingham's erudition to this matter the Minister should include the words “and expenses”.
Amendment No. 22, by leave, withdrawn.
Mr. G. Birmingham: I move the following amendment:
In page 8, subsection (6), line 18, after “costs” to insert the words “and expenses”.
Amendment agreed to.
Amendment No. 23 not moved
Question proposed: “That section 12, as amended, stand part of the Bill.”
Mr. Taylor: I am grateful to the Minister for accepting that amendment which  is valuable and necessary. However, I have a further problem in relation to that subsection, which states:
(6) The landlord shall be liable for the tenant's costs reasonably and necessarily incurred arising out of an application by the landlord to the Court under this section unless the Court,....
As we are aware from the interpretation clause, “the court” means the District Court. As the legal Deputies can clarify, there could be an appeal and, no doubt there will be an appeal, to the Circuit Court. Such an appeal will be on the basis of a complete rehearing. That is the form appeals take from the District Court to the Circuit Court. In a case where that happens the section does not provide for the tenant's costs of the appeal, so he will be left completely exposed. The landlord will have no problem covering himself, but the tenant will be left without either costs or expenses of an appeal. The section is confined to the costs in the court and, by definition, the District Court only.
Mr. Shatter: Arising out of Deputy Taylor's question, I have one further relevant point. As far as I am aware, there is no expressed provision anywhere in the Act specifically stating that there is a right of appeal to the Circuit Court. I presume that arises under the Courts Act as an automatic right, which is the reason for its not being referred to here. However, I endorse Deputy Taylor's remarks. Certainly in so far as that would be the case, there would be the same problem of expenses in the Circuit Court. The Minister may possibly consider putting down his own amendment on Report Stage to permit the payment of costs and expenses in the event of an appeal to the Circuit Court. The section would have to expressly state that.
Mr. Raphael Burke: On the question raised by Deputy Taylor, I would anticipate very few cases being appealed through the Circuit Court. They would be covered by the courts legislation and  not in this legislation. What would be the encouragement to the tenant to appeal, because we would be covering whatever additional costs would be involved to him or to her in the social welfare aspects of this?
Mr. Taylor: But if the landlord appeals?
Mr. Raphael Burke: If the landlord appeals, we have a problem.
Mr. Shatter: If the landlord appeals and loses ultimately, having lost in the District Court, the problem is to ensure that the tenant would get the costs of the Circuit Court appeal.
Mr. Taylor: The landlord cannot get costs. An adjusting amendment would cover that.
Mr. Raphael Burke: That is a genuine problem in this section. If the landlord loses in the Circuit Court, the tenant would be covered.
Mr. Taylor: It is not a clear-cut question of winning or losing. It is a question of a long-standing low rent and a landlord coming in on an application and obtaining a substantial increase. An appeal then arises, either on the part of the tenant or the landlord, and the same figure may apply, or it may be slightly raised or lowered. The tenant's rent has gone up in the meantime from £3 to £30, so he loses come what may. The intent of the section is that he at least should not have the burden of the legal costs and expenses. That should apply in the event also of an appeal. Would the Minister agree to the slight appropriate amendment to cover an appeal situation?
Mr. Raphael Burke: I am afraid that I have gone as far as I can in the subsection as it reads to cover the tenant's liability for costs, and now expenses, in section 12. I cannot go any further at this stage.
Mr. P. Barry: Section 12 (2), states:
Where the Court has fixed the terms  of a tenancy under subsection (1), the landlord or the tenant may not apply to the court to fix new terms of the tenancy until the expiration of five years from the date of the last order of the Court fixing the terms of the tenancy.
In the 1981 Bill the time mentioned was three years. Why has that been increased to five years? However, that is not my major point, which is that under the 1981 Bill the means of assessing the rent of the premises were quite precisely defined under section 6 (2). That rent was meant to hold for a period of three years. Under this Bill the definition of rents is not precise at all—in fact there is a huge number of variables, if one looks also at section 13. If the rent is fixed under section 13, it applies and may not be altered, even on application to the court, for a period of five years. One of those conditions is the means of the landlord and the tenant. Obviously, the means of either the landlord or the tenant can vary on the day following the court's making an order as to the rent to be paid for these premises. The conditions also include the ages of the tenant's family residing in the premises. The tenant might have two children today and quins in a year's time and his conditions will have changed utterly. Also, the house may be owned by a self-employed person who dies, leaving the house to his widow and leaving her no other means. She is now unable to apply to the court for another five years. Coincidentally with that, the means of the tenant may have improved enormously, but the tenant cannot be liable for a higher rent, nor can the owner of the house get an increase in rent for five years.
The converse of that is that the landlord may win the Sweep within 12 months of the fixing of the rent, while the tenant may lose his or her job. The means of both may change to an enormous degree, yet the tenant is stuck with this rent and may not apply to the court for a further five years.
We on this side of the House nodded when allowing account of section 13 to be  taken in this new Bill. We should have put down an amendment. Would the Minister accept some form of amendment to allow in special circumstances an appeal to the court to have set aside the court order which fixed the rent if the means of the landlord or the tenant change in the intervening five-year period?
An Leas-Cheann Comhairle: We are now dealing with section 12, as amended. It would not be open to the Chair to take any further amendments on that section.
Mr. P. Barry: I understand that, of course. However, the Minister has graciously accepted an amendment across the floor from Deputy Birmingham in an earlier section. I am hoping that he may do the same now.
Mr. Raphael Burke: I really could not accept an amendment at this stage, despite my gracious nature in so many other ways.
Mr. Quinn: It is Easter, and not Christmas, which is approaching.
Mr. Raphael Burke: The sacrificial lamb. Under the subsection which I have included here, if the landlord and tenant come to an agreement and the landlord decides after a month, a week or any other time, they can immediately go to the court at present and get a decision, whereas in the old Bill if there was agreement they still could not go to the court for three years. Having gone to the court and a decision having been made, they are both tied to it for five years. If one opens it up to include changes of circumstances in the 13(2) draft, which I have here, as regards the matters which must be taken into consideration by the court in deciding on a rent, there can be complications. One would be into chaos if tenants and landlords were going back and forth to the courts at all times.
Mr. Quinn: Hear, hear.
Mr. Raphael Burke: I am sticking to the five years. If there is a change of status for the tenant, if his financial situation  deteriorates either because of being made unemployed or in the case of the addition of the quins which were mentioned, then the home subsidy scheme is there to protect him from the additional burden which he has to pay. He merely goes at that stage to the Department of Social Welfare and is looked after by means of an improved subsidy. If the husband dies and the widow is on a fixed pension I accept there is a difficulty. This is a complex matter——
Mr. Quinn: She can always sell the house.
Mr. Raphael Burke: The situation is reviewed every five years and if we try and change it and have people going backwards and forwards into the courts every time one of the circumstances of section 13(2) changes there would be chaos. I think the way we have it now is better.
Section 12, as amended, agreed to.
An Leas-Cheann Comhairle: Amendments Nos. 24, 25 and 26 have already been discussed.
Mr. P. Barry: I move amendment No. 26a:
26a. In page 8, subsection (2), line 30, before “nature” to insert “condition, including the condition of the matters referred to in section 26 (2).”.
The purpose of this amendment is quite clear in including a list of things which the court must take into account when assessing the rent. The condition of the house is very important. Two landlords with houses next door to each other could have kept them is quite a different state of repair. There is nothing in this section that would allow the court to take that into account. If a landlord has not kept the house in good condition the tenant should be charged a lower rent than for a house which has been kept in good condition.
Mr. Raphael Burke: The Deputy's amendment is a criterion for the determination of the rent. The Deputy is attempting to include as one of the factors the condition of the house and the matters referred to in section 26(2), that is the standard prescribed by regulations. The existing section 13(2) refers to the character of the dwelling and allows all the factors the Deputy spoke about to be considered and to be taken into account. It is much wider in scope than the Deputy's amendment seeks to include. Consequently, I do not intent to contract the scope of this Bill, I intent to leave it as broad as I can.
Mr. P. Barry: Would the Minister tell me what is the difference between the nature, character and condition in relation to a house?
Mr. Raphael Burke: I mean the conditions of different types of houses.
Mr. P. Barry: That is the point I am making.
Mr. Raphael Burke: It is broad as it is and I do not want to tie it down.
Mr. G. Birmingham: It would be natural to interpret the words nature and character as meaning terraced, semidetached or whatever. They are the answers you get when you ask about the character of a dwelling. If that interpretation is accepted, then the question of whether the dwelling was falling apart or in immaculate condition would be something that the court would never see.
Mr. Raphael Burke: Character would be defined by its state of repair.
Mr. P. Barry: Is that a legal definition of the word character in relation to a house?
Mr. Raphael Burke: It is not one I have come across too often in the District Court.
Mr. Quinn: The Minister used it extensively in relation to estate agents.
Mr. Shatter: When determining rent, the condition of the dwelling will obviously have to be taken into account. We talked earlier about surveyors, architects and estate agents assisting the court to determine a value. Their assessment is going to be largely based, in so far as they can contribute to this area, on the condition of the dwelling. The character might be concerned with whether it is situated on the Rathgar or Rathmines Road, the centre of Dublin city or wherever it is, but it will not be concerned with determining whether it is in good or bad repair. With respect to the Minister, the word “condition” is the usual sort of terminology and has been used in other landlord and tenant Acts in helping to determine the amount of rent payable for a premises. It is the obvious factor to be taken into account whenever there is a private letting arrangement, be it a shop or dwelling that does not come within the terms of this Bill. I would ask the Minister seriously to consider the amendment.
I also refer the Minister to the fact that the second portion of the amendment is a most important provision in that it is concerned with providing an incentive to landlords to comply with any regulations that require a minimum standard of the condition of the dwelling. If that is inserted in the Bill, it may obviate the necessity for having hordes of housing officers and local authorities running around the country trying to assess the condition of dwellings which come within the provisions of this Act. If they do not comply with the minimum standards as a consequence landlords may lose out in a rental payment which the courts may judge should be made. I would ask the Minister, in the same spirit as Deputy Quinn referred to the fact that we are co-operating with the Minister in passing this Act, to note that this is not a powerful, political, contentious amendment. It is an amendment suggested purely having regard to making the Act workable and readily interpreted by the courts and also properly enforceable by tenants where minimum standards are imposed.
Mr. Raphael Burke: I do not want to delay the House because we have not done half the amendments yet and there are a number I want to accept.
Mr. P. Barry: This is the most important section.
Mr. Raphael Burke: It is a key section. Section 13 (2) is central to the whole Bill. This is the wording that was decided by the Government on the advice of the Attorney General with the advice of the parliamentary draftsman. I would not be in a position now to change it in any way. This together with section 23, dealing with assistance to be paid to tenants who find themselves in difficulties are the two key issues in this Bill. As I already said to Deputy Barry, that is the best advice I had available to me and which the Government received from the Attorney General that this wording is broad enough to include all aspects, such as the state of repair and so on of the dwelling.
Mr. P. Barry: It strikes me the word “condition” is better than the word “nature” or “character”. I think it is the word used in the tenant purchase Acts.
Mr. Raphael Burke: I am going on the legal phraseology that is here before me.
Amendment No. 26a, by leave, withdrawn.
Mr. Quinn: I move amendment No. 27:
In page 8, subsection (2), line 35, after “dwelling” to insert “and the prospect of suitable alternative accommodation being available to such tenants by the local authority”.
It is quite obvious from the constraints the Minister has taken upon himself that he cannot accept it. I want to put on the record of the House one of the reasons why this amendment should be incorporated in the terms under which a just and proper rent would be fixed by the District Court. In my experience, to date, tenants  who occupy uncontrolled dwellings and are taken to court because of their inability to pay or simply because the landlord wants to get vacant possession, find that the judge expects that the local housing authority will automatically take on the responsibility of housing them. In establishing what would be a just rent, section 13 (2) requires the court to have regard to eight separate factors. We have been talking about only one of them and the amendment seeks to add at the end of the subsection “and the prospect of suitable alternative accommodation being available to such tenants by the local authority”.
The reason for the amendment is that it is and it should be an admissible argument by a tenant whose rent was about to be increased considerably that she or he could point out to the district justice that the lists for, in my case, Dublin Corporation are in excess of 2,000 to 3,000 people and that in the event of such a tenant not being able to arrive at an agreement for a rent she or he could afford, and which would be subsidised in part by the social welfare code, the person would have no option but to try to get housed by the statutory authority. It should be possible for that person to be able to say to the district justice that the housing authority simply would not be in a position to house the person because of the queues involved and the constraints on the housing lists.
A number of Fianna Fáil Deputies who are members of Dublin Corporation are well aware of the situation. Indeed the decision of the court which we have states:
The Court recognises that hardship may be caused to some tenants required to pay even the abated rent provided for in section 9.
My argument is that the court recognised all these things in the subsection but they did not see fit to try to balance their decision. Therefore, I am saying to the Minister that this factor should be part and parcel of the items which the court  should take into consideration when trying to establish a just and proper rent.
Mr. Raphael Burke: This is an amendment to the criteria in the section. As the Deputy said, it is an attempt to include as one of the considerations the prospect of the tenant being eligible for housing by a local authority. I cannot see that this type of criterion can be applied as a matter affecting the relationship between landlord and tenant. Concern was expressed on the Second Stage that section 13 (2) could raise constitutional problems and I fear that inclusion of something on the lines of this amendment would exacerbate these difficulties, and therefore I cannot accept the amendment. I gave similar reasons to Deputies Barry and Birmingham for not accepting their amendments.
Mr. Quinn: In view of the possible way in which these constitutional difficulties have so spancelled the Department in drafting this legislation——
Mr. Raphael Burke: They have not spancelled us.
Mr. Quinn: To the extent that the Minister could not substitute “thirty” for “twenty”, to the extent that he cannot accept this amendment, to the extent that he could not substitute “condition” for “nature”——
Mr. Raphael Burke: The Deputy will appreciate we are in a very difficult situation.
Mr. Quinn: I do, and for that reason I am surprised that the Government are quite prepared to give a commitment to a constitutional amendment on an issue on which there is considerable agreement but have no proposals to remove this impediment, this difficult situation, in relation to this thing. Arising out of the difficulties in which the present Government, with a new AG, like the previous Government, with their AG, find themselves so constrained, would the Minister not consider the possibility of amending the Constitution, particularly in view of  his promise to introduce amending legislation in the new session?
Mr. Raphael Burke: We discussed that at Question Time yesterday.
Mr. D. Andrews: I do not think it is necessary to insert Deputy Quinn's phrase into the legislative form. The court, taking everything into account as demanded by the section, would include this in the ordinary way without having it set down in legislation.
Mr. Quinn: Our reason for tabling the amendment is that the decision of the court refers to hardship being caused by the consequences of this. There are eight factors which the court must take into account in determining a just and proper rent, and in order to avoid the hardship of homelessness we thought it necessary to provide that the judge should allow as admissible evidence on behalf of the tenant details of the housing situation in the area concerned. It is quite clear from the ambiguity in relation to the degree of subsidy available under the social welfare code that even with the maximum allowance that will be paid to tenants—let us be honest about it, no Government are prepared to give an open-ended commitment to pay the full difference — many tenants will find themselves flung back on the local authorities' housing lists. Therefore, if it were a choice between homelessness and going on the housing lists, I suggest the court should be enabled to accept this factor as admissible evidence.
Mr. D. Andrews: It need not necessarily be written into the legislation. If Deputy Birmingham, for instance, were to represent a tenant he would bring that in, whether mentioned in legislation or not. It could be brought in the ordinary way on behalf of the client and the court would take notice of it.
Amendment, by leave, withdrawn.
Question proposed: “That section 13 stand part of the Bill”
Mr. G. Birmingham: One of the things  which the court is likely to have regard to is the age of the tenant's family residing in the dwelling. There seems to be only one explanation, and I hope it is correct. If it is correct I will have a suggestion to make.
Mr. Raphael Burke: As I have said many times, this legislation must provide a balance between what is fair to the landlord and to the tenant. We could not bring in anti-tenant or anti-landlord legislation. In deciding on the rent, the landlord is entitled to have some account taken of the circumstances of a family in which there might be three or four wage earners. Their income should be taken into account — their earning capacity. The reverse situation is where there is a tenant with five or six young children. The tenant might have a good salary but the fact that he has five or six children to educate and to feed should be taken into consideration.
Mr. G. Birmingham: If that is the position I approve of it wholeheartedly, but I wonder what the end effect would be. Surely if the ages of the family members are to be looked at it does not matter whether there are four 17-year olds none of whom are working or earning? Is that not a graver situation than having four young children? The court will be allowed to have regard to the means of both landlord and tenant. It will also be allowed to look at the size of the family.
Mr. Raphael Burke: The tenant's ability to pay would also be affected by the contribution being made to the income of the tenant by his working children or by children who are not working, whichever way it is. It is there to assist the tenant in the situation where he has a large young family that he is trying to educate and clothe. It is also there to protect the landlord in the event of a tenant having five or six working children. The landlord in that case would be entitled to his share of the contributions.
Question put and agreed to.
An Leas-Cheann Comhairle: By order of the House, the time has come to put the question.
Mr. Raphael Burke: Before the question is put I would like to associate my name with amendments Nos. 52 to 58. They can be taken as material amendments.
Mr. Quinn: Would the Minister like to add a few more to that?
Mr. Raphael Burke: No.
An Leas-Cheann Comhairle: I would like to point out to Members a printing error in page 12, line 8, where a comma should appear after “1981”.
Question: “That all amendments in the name of the Minister for the Environment and not disposed of are hereby made to the Bill; the Bill, as amended is hereby agreed to, and, as amended, is reported to the House; Fourth Stage is completed and the Bill is hereby passed”; put and agreed to.
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