Registration of Deeds and Title Bill 2004: Committee Stage.

Tuesday, 14 June 2005

Seanad Eireann Debate
Vol. 180 No. 20

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Government amendment No. 1:

Minister for Justice, Equality and Law Reform (Mr. M. McDowell): Information on Michael McDowell  Zoom on Michael McDowell  This is a technical amendment arising from the establishment of the property registration authority to which I will return later. The amendment provides a new collective citation for this Act and the Registration of Title Act 1964. My intention is that a statute law restatement, incorporating both Acts, will be prepared to provide an accessible text for practitioners and the public in the future.

Amendment agreed to.

Section 1, as amended, agreed to.

Government amendment No. 2:

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  This is purely a drafting amendment.

Amendment agreed to.

Section 2, as amended, agreed to.

An Leas-Chathaoirleach: Information on Paddy Burke  Zoom on Paddy Burke  Amendments Nos. 3, [1604]5, 8 to 31, inclusive, 33, 35 to 39, inclusive, 42 to 48, inclusive, 51, 56, 57, 59, 60, 61, 69, 70 and 71 form a composite proposal and will be discussed together.

Government amendment No. 3:

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I said on Second Stage that the Government had given approval to my proposals for restructuring the Land Registry and the Registry of Deeds. I indicated that it was my intention to establish a statutory body to be known as the property registration authority.

These amendments deal with the establishment of the authority, its functions, the holding of meetings of the authority, the staff of the authority and the chief executive of the authority. The group also contains certain necessary amendments to both the Bill as presented and to the Registration of Title Act 1964 arising from the establishment of the authority. I want to emphasise that the Land Registry is not being abolished nor am I proposing to abolish the Registry of Deeds. I am putting in place a statutory body which will have responsibility for the management and control of both of these organisations.

In the interests of continuity, I have included a provision in the amendments that the current Registrar of Deeds and Titles will be the first chief executive of the new authority. The amendments establishing the new authority are in the main based on provisions which provide for the establishment of bodies such as the Courts Service, the Civil Legal Aid Board and the Private Security Authority. The functions of the new authority are outlined in amendment No. 11. These include the management and control of the Land Registry and the Registry of Deeds and the promotion and extension of registration of ownership of land. The extension of registration of ownership of land is a priority task for the new authority. It is vital as we move towards the e-conveyancing system to increase the amount of registered land. I intend to ask the new authority to develop a strategy to address this issue after its establishment.

In common with most bodies of this type, the authority will have a membership of 11, including the chairperson. The membership of the authority will be broadly based and bring a range of differ[1605]ent experiences and knowledge together to work on the authority’s behalf. This is a detailed provision which deals with all aspects of the membership of the authority, including appointment, resignation and terms of office. The issue of vacancies on the authority is dealt with in amendment No. 13.

The fees the authority will be able to charge for its services will be determined by the Minister of the day, with the consent of the Minister for Finance, which is outlined in amendment No. 22. The fees shall be fixed at a level to ensure the income is not less than the amount required for the expenses, salaries and remuneration of the authority.

Amendments Nos. 23 to 25 deal with the chief executive officer of the authority. It is intended that the current Registrar of Deeds and Titles will be the first chief executive. Thereafter, amendment No. 23 outlines the method by which the chief executive is to be appointed. The functions and responsibilities of the chief executive are set out. Amendment No. 24 provides that the chief executive shall be the Accounting Officer of the authority for the purposes of the Comptroller and Auditor General Acts, while amendment No. 25 provides that the chief executive shall be required to attend Oireachtas committees to account for the administration of the authority. The staff of the authority is dealt with in amendments Nos. 26 and 27. An important point to note is that staff will remain civil servants of the Government. Amendment No. 27 provides that on the establishment day staff of the Land Registry and Registry of Deeds shall become members of staff of the authority.

As a result of the establishment of the new authority, several amendments to the Bill as presented will be required. In amendment No. 33, the definition of the Registrar of Deeds is deleted. Amendment No. 35 inserts an important provision to the effect that the Registry of Deeds shall be under the control and management of the property registration authority. Amendment No. 36 in the names of the Labour Party Senators proposes an amendment to section 9 of the Bill dealing with proceedings against the Registrar of Deeds. This position will not be required following the establishment of the authority, therefore, I do not propose to accept the amendment as it will be effectively redundant. Amendment No. 37, also in the name of the Labour Party Senators, proposes an amendment to section 10(1), relating to transitional provisions. This subsection will be deleted under amendment No. 38, therefore, the question of amending it does not arise.

Amendments Nos. 39, 42 to 46, inclusive, 51, 59 and 60 simply substitute the word “authority” for “registrar” in a number of sections of the Bill. These amendments are a direct result of the establishment of the authority. In addition, amendments Nos. 47 and 48 substitute the words “determined by the authority” for “prescribed”. [1606]These are as a direct consequence of the establishment of the authority.

A minor drafting change is proposed in amendment No. 56. Amendment No. 57 is important as it inserts a new provision in the 1964 Act to the effect that the Land Registry shall be under the management and control of the authority. Section 36 of the Bill substitutes a new section 84 in the 1964 Act that will allow the registrar to use electronic or digitalised maps. The section is being amended in section 61(2)(a) arising from the establishment of the authority. The amendment provides that the registrar, before the commencement of the section, and the authority, on the commencement of the section, will have the power to adopt any map the registrar considers to be satisfactory.

The new authority will bring the Land Registry and the Registry of Deeds on to a sound structural footing to face future challenges and will ensure the modernisation process and the road map towards e-conveyancing is realised. My overall objective is to make the conveyancing of land easier and faster and to reduce the costly delays associated with registration.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  We welcome this radical set of amendments, which will place a new authority on a statutory basis to deal with the registration of deeds and to subsume the Land Registry. More important, I welcome the Minister’s statement that the new head of the authority will be answerable to the Houses of the Oireachtas. That will probably be more sensible than providing for on-line ministerial responsibility, given the number of transactions conducted by the Land Registry and the Registry of Deeds annually. It would be more useful to provide for the new head of the authority to be answerable for the performance and functioning of the new body so that proper management and control of this important service can be made accountable to the Oireachtas. It is also important that the body will be self-financing, which is good.

A number of categories of persons who should logically be members of the authority has been outlined in the legislation, including persons with a legal background and persons with a specific knowledge and interest in this area. Has the Minister considered providing a voice for local authorities on the board of the authority? I am a former local authority member and one of the great bugbears of local authority members is the time it takes to register land. Local authority members are vastly knowledgeable and experienced and this could well be exploited in making appointments to the new authority, given that local authorities frequently encounter the thin edge of the wedge when chasing registration of deeds and title. The Minister might consider this.

The objective of the exercise is to establish a customer-focused authority, which will deliver registration on a much more speedy basis than the Dickensian way in which it is delivered. If the [1607]new authority goes about its task as set out in the amendments, it will be a good day’s work.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  Provisionally I welcome the Minister’s initiative but I wonder whether the various parties affected by these changes have been consulted, for example, the staff of the Land Registry and the Law Society. Provision is made for one member of staff on the board of the authority, which is low. Given that the staff are the experts when it comes to the running of the Land Registry, is one member of staff on the board enough? Will the Minister have an opportunity to talk to people affected by the new changes?

I am concerned about potential fee increases. I am a conveyancing practitioner and substantial fee increases were introduced a few years ago when other changes were made to the Land Registry. Fees were increased by a few hundred euro and I hope the new changes will not be accompanied by more substantial increases in registration fees. I am concerned about this as a practitioner and on behalf of house purchasers who must pay the fees, given that the authority will be self-financing. However, the changes are needed. I have tabled an amendment to address the issue of registration of title and I hope the new body will aggressively take on that task and achieve progress beyond the current three counties.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  I welcome the amendments. The Minister gave us a clear signal in this regard on Second Stage and there was a general welcome for the property registration authority and the introduction of computerisation in this area. The Minister is correct in seeking to have all land registered, as a great deal of land is unregistered for various reasons. Tidying up the registration of land is a step in the right direction.

With regard to the composition of the property registration authority, I support the call by Senator Brian Hayes to consider the appointment of local authority members. Members of the Oireachtas are correctly barred from involvement but it would not be correct to bar county councillors. Different circumstances prevail and they often have local knowledge and experience of the issues involved, which would be a help. Somebody with an appreciation for customer service should also be appointed to the board of the new authority. One of the complaints in the past was that the performance of the Land Registry was not all that should be expected from a public body, although this was not justified in a number of instances.

There is nothing wrong with seeking to ensure the new authority should be self-funding but services provided by public bodies often do not observe the cost disciplines required to ensure the customer is charged fairly at the end of the day for the service he or she receives. A number of local authority sections performed extremely well in the past even when they were understaffed but [1608]others, which were overstaffed, did not provide an adequate, cost effective service, which they would have been able to provide in other circumstances. A safeguard, therefore, needs to be included to ensure the service is provided on a value for money basis. That should be applied throughout the public service.

It could be too easy for the chief executive and the authority to pass on costs, which they should not incur in the first place. I am not sure how the Minister could safeguard against that under this system, although I acknowledge that ministerial discretion will be exercised in the matter. However, many public bodies can make a case, which will, on the face of it, stack up but, when analysed, will not. For example, in the bad old days when public expenditure was totally out of control between 1982 and 1987, I proposed a saving of €100,000 out of a €30 million budget at a local authority meeting. I remember the response from the person in charge at the time was that the staff would encounter significant difficulties in providing the service given the conditions in which they were performing and that the situation would be almost tantamount to the service collapsing. The Government took steps the following year to correct the public finances, which has stood us in good stead, enabling us to get our fiscal responsibilities right and, as a consequence, helping to lay the foundations for greater economic growth.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Was that 1977?

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  It was 1987.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  That was a Freudian slip.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  The Minister reduced our income by £1 million in the following year. Not one councillor needed to make any suggestion as to where else the amount could be found. The manager brought forward proposals showing exactly where the money could be saved when, in the previous year, £100,000 of a saving would have collapsed the whole local authority. As such, I am coming to this debate with some experience of what happens in the administration of public services. I would like to think we will find some way to ensure the charges are equitable. I do not know how or against what one would benchmark these but there should be a system to safeguard the consumer from charges being excessive simply because costs are not controlled properly.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I agree that the authority’s members should be people of considerable experience and wisdom. The new section 11(4) to be inserted in the Bill provides that the Minister must have regard to the desirability of their having knowledge or experience of conveyancing practice and procedure, business, finance, management, administration, consumer affairs or any other subject which would, in his or her opinion, be of assistance to the authority in performing its [1609]functions. I see no reason in principle why a local authority member should not be a person who would have, at the very least if not accidentally, some of these qualities but, as a minimum, experience of administration that would be of value to the authority. I do not want to commit myself to any particular course of action now. Having explained in section 11(4) and (5) the formula for the composition of the authority, I do not want to pre-empt myself or my successor with a binding policy commitment on the issue.

Senator Tuffy asked whether the staff were consulted on these matters. The staff were notified of this at the departmental council. The Senator will note they will remain public servants. As far as staff are concerned, apart from having a right to elect a member to the authority, there is nothing in the Bill that, on the face of it, is prejudicial to the staff’s interests. Quite the reverse. This is part of a process that is revolutionising their working experience and conditions by bringing the registries from the early 18th century into the 21st century, in one leap in the case of the Registry of Deeds.

On the matter of fees and cost control, I appreciate Senator Tuffy’s point that there were substantial fee increases in the registries, which were the subject of some controversy at the time. I ask the House to note that, first, the Land Registry must pay its overheads as well as its day-to-day outgoings. It must also pay its pensions and provide for its buildings. There will be an extensive building programme and Members, some or who are probably following the debate on their monitors, will be glad to know that Roscommon will receive a fair complement of the Land Registry’s staff in the very near future. This is not just because I have an interest in Roscommon town but because it is a sensible thing to do.

Second, the building programme for the Land Registry is likely to be an expensive one. On top of this is the question of IT. The e-conveyancing proposal requires a fair amount of money to be spent on software and hardware to ensure the new system works. On the matter of fees, it is not my intention at this time to use the establishment of the authority, which does not in itself have any particular expense indications, as the occasion to unleash unjustified new fee increases. It is my intention that whatever resources are necessary to transform the registries in Ireland from their old-fashioned condition to their new modern condition, an ongoing process that has already achieved major significant modernisation, must be provided by revenues. Asking anybody other than the users of the service to pay for it would not be fair. Plenty of people queue at post offices to get their welfare entitlements, pensions and the like. To say to them that they must forego potential increases in their pensions so that I can invest in the Land Registry and so that those who make property transactions can get a quicker service would not be a fair allocation of resources.

[1610]Regarding registration, the Senators will note that the functions of the authority are set out in amendment No. 11, which inserts a new section 10 in the Bill. The second function, apart from managing the Registry of Deeds and the Land Registry, is to promote and extend the registration of ownership and land. A central task of the new authority is, therefore, to advance the registration process and to transform the pattern of property registration in Ireland from transaction registration, which is the basis of the Registry of Deeds, to land registry, which is the basis of the land registration system. In these circumstances, the function of the authority is to proactively advance the process of registration. The issue of compulsory registration on a county basis will be decided, as will other incentive measures to ensure land registration is resorted to on as widespread a basis as can be done with the resources available to the authority.

I emphasise that the authority is intended to bring about a major transformation in the way these two institutions are run and to ensure the highest possible standards of modernity are put in place. We are now advancing on a number of fronts towards a very different conveyancing situation, which the citizens of this country expect us to do. E-conveyancing is not yet within our grasp but it is coming close to being so.

One of the building blocks of the new regime in land law will be the publication of the text of a Bill that will completely transform the law of property in Ireland from its medieval feudal tenure origins to a modern republican — if I may use that term — land ownership system, completely sweeping away all of the old-fashioned concepts that apply to the law of real property as I studied it in King’s Inns and replacing it with a modern, simplified statute based on common sense. I hope to undertake this publication in July in conjunction with the Law Reform Commission. This will be an exciting development. By the time the Bill goes to the other House, the heads of draft legislation to transform land ownership in Ireland in its entirety will already have been published.

I thank the registrar, who will become the chief executive under this legislation, her staff, the Law Reform Commission and Professor John Wylie, who is spearheading the transformation in conjunction with officials from my Department, for the tremendous work they are doing to effect radical law reform in under two years which should last for a century once it is put in place.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I wish to address the last point made by the Minister. Obviously the new authority is a radical departure, but this is not radical law reform because it does not address all of the issues in this area. We must await suggestions from the new authority and then legislation will be required to deal with all of the issues around registration of title, conveyancing and other matters raised by the Law Reform Commission. This Bill is a step forward but it is not radical law reform in itself.

[1611]The Minister stated that people who use the services should bear the costs. Surely they should only pay for the cost of the service and not for the cost of reform. If the system is archaic and in need of reform, that is not the fault of the customer, it is the fault of the State for failing to implement reform. I do not think it is right if there is a major cost involved in this reform, which I hope will not be the case, that the customers who use the service should bear that cost. I do not agree with that principle. Customers should pay for the service and if the service is similar to that provided before reforms are implemented, then they should not have to pay substantially more for it. I hope that there will not be a major increase in fees but I am wary of what the Minister said in response to concerns that were raised.

There should be some way of knowing now — by reviewing the assets, outgoings and so on, of the Land Registry and Registry of Deeds — if there is money to provide for the setting up of this new authority and the transfers and reorganisation that are required. I presume that a costing exercise has been carried out as well as an examination of the money available within the Land Registry and Registry of Deeds as they stand. Can the Minister tell the House if the staff are happy with the provision of one member on the authority and if they expressed any opinions in that regard?

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Up to now, any increase in conveyancing fees have to be sanctioned by the Minister of the day. Will that remain the case, following recommendations from the authority?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Yes.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Senator Tuffy’s point is important in terms of paying fair fees for a service. The question now relates to the additionality that will occur as a result of these reforms. One could argue that decentralisation costs a lot of money and perhaps the people who are moving should pay for it. It would be wrong if an increase in conveyancing fees was based on paying for administrative reforms, which should be paid for by central funds.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The proposition being advanced implicitly by both Senators is that it is more just for the Central Fund of taxation to bear the cost of changes to a service rather than compelling its users to finance the changes. If the potential rainbow partners will permit me to put it this way, that is a high tax philosophy.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  That is an airy fairy assertion.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I do not believe that the Central Fund should always be resorted to in order to improve services. After all, the beneficiaries of improved services are the users. Delays at the Land Registry cost nothing for those who [1612]have no property, but they are an expense, inconvenience and a problem for those who want to progress with conveying property.

The setting up of the registration authority should have no cost implications worth speaking of. However, the general principle should apply that the property registration authority should be self-financing and should have a financial regime that covers its overheads, pension overhang and so forth. That is the correct way to run a State service, which is of necessity a monopoly because unless one were very radical, this service is not one that could be open to competition — competing registries is not a good idea. It is one thing to have competing airports, but we could not have competing registries.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Is the Minister suggesting a deregulation of the registry?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The transformation that is already taking place in the Land Registry represents good value for money. Some people see it purely as a stealth tax but it is more than that. It is an imposition designed to facilitate a badly needed modernisation drive. There is an infinite number of demands on the resources of the central Exchequer, including increased pensions, improved health services and so on. This particular area of State activity should, as Senator Walsh said, be self-financing.

Senator Tuffy asked if the staff were happy about having only one member on the authority. That is a standard provision which is quite satisfactory in the circumstances as it represents a significant advance on the current situation whereby there is no statutory body in existence. There is a shadow body in existence, but there is no statutory body. It is not appropriate to dominate a management body of this kind with its own employees. The staff regard this proposal as an enlightened advance and are not demanding that two or three members of the authority be elected from their ranks.

This is a progressive move. Senator Tuffy said that it is not radical law reform. She is correct and I concede that point. However, the documentation to be published in July proposes radical law reform. The Senators must await that but I assure them radical law reform in this area is coming.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Previously, any Member of the Dáil could pose a parliamentary question in respect of the activities of the current registration bodies and I presume that process will continue when the new authority is established. This does not affect Members of this House because we do not have the authority to pose such questions. However, when questions are posed in the other House in future, I assume they will be answered. The Minister will be aware that some Members are disenchanted with the new quangos, for want of a better term, established by this Government. It is important, therefore, that there is account[1613]ability in the House regarding specific questions raised and transactions carried out. The posing of parliamentary questions has been a useful way for Members of the Dáil to highlight cases. Will that provision remain in place?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  As Senator Brian Hayes was speaking, an image of former Deputy Brian Lenihan, who spoke about the tyranny of consistency, floated before me. Tomorrow in this House we will hear the opposite point being made with regard to policing, namely that it is important to have an independent body and not to have ministerial control.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  The Minister should stick to today’s agenda.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I will make the point in that debate ——

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  The Minister is straying from the relevant point.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I will make the point in that debate that if one wants to have questions answered in the Dáil and if one wants direct parliamentary accountability, one cannot superimpose bodies between the Minister and the agency in question and say it will have no effect. I accept the point that has been made in this House that if this Bill has the potential to reduce accountability by the multitude of questions which float onto my desk about delays in the Land Registry, either that or something else must be put in its place. There must be either a hotline or some kind of tailored service to assure the public that files are not just ignored or undue delay does not take place.

  5 o’clock

I am also optimistic that the reforms we are discussing will sweep away most of the egregious delays that existed in the past. I take the point made by Senator Brian Hayes that at least now when a delay occurs, somebody is bound to respond in a public way to explain the reason for the delay where it becomes a point of controversy. I must put on my thinking hat as to how some measure of equal accountability is put in place. I would emphasise that if one wants a Minister in charge of any area of the State’s activity to be accountable to Parliament and liable to answer parliamentary questions and attend Adjournment debates, one cannot at the same time say that he or she should be divested of responsibility and all of his or her functions given to independent aggregations of the great and the good who are entirely independent of him or her and over whom he or she has no control. One cannot have one without the other.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  The Minister is deliberately misinterpreting what I said but he is doing so for effect. If the question is put to the authority, the authority should give a straight answer to the Member, rather give a one-line answer two [1614]months later. The experience to date with many of the quangos established by the Government and the previous Government is that Members of the Oireachtas receive little or no information from these quangos when they are established. The point is best practice and proper accountable answers from the authority rather than the Minister’s convoluted interpretation.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  If the chief executive is responsible to committees of the House, she or he will doubtless devise mechanisms to prevent physical attendance on every occasion when the House demands her or his attendance. Amendment No. 25, which inserts section 24, states, “Subject to subsection (2), the Chief Executive shall, at the request in writing of a committee of the Oireachtas, attend before it to give account for the general administration of the Authority, including its strategic plans.”

Maybe this does not cover specific things but I believe that in order to avoid multiple attendances, some hotline will be established so that the present system of parliamentary questions will be replaced by something of equivalent use to Members of the Houses.

Amendment agreed to.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I move amendment No. 4:

This amendment is more for discussion purposes, particularly in the context of the new proposal that the Minister has for the authority. Much more needs to be done to try and extend the system of compulsory registration of title. As far as I know, the last time this issue was dealt with was in the Registration of Title Act 1964. Three counties have this system of compulsory registration but there has been no progress on the matter since. There has been considerable progress as regards certain lands that have been registered by developers where they are carrying out large schemes and local authorities have registered a considerable amount of land but there is still much to be done in terms of individual houses. A large part of the discussion of this Bill on Second Stage related to how wrong it is that title must be inspected each time by going through each document and searches must be carried out on all the different stages. If title was registered in the Land Registry, the conveyancing work would be substantially reduced in that there would be one basic title document to look at if one wanted to carry out a search. I do not think searches can be totally dispensed with because there is always the chance that someone will have done something with land. There is only one basic [1615]search that must be carried out if title is registered with the Land Registry. One merely has to look at what is on the title rather than looking through individual documents.

I hope this authority does deal with it but if an authority is set up, there is no guarantee that it will prioritise this issue. I would like to know what the Minister intends to do to ensure that title is registered and some progress is made with regard to the issue raised by this amendment.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  While I understand the motivation behind this amendment, I would be foolish to accept it because the question of compulsory registration is being examined in the Department and the Land Registry. I propose to bring forward an amendment on Report Stage to deal with compulsory registration. Section 24 of the Registration of Title Act 1964 provides that the Minister for Justice, Equality and Law Reform may, by order, designate areas in which registration of ownership becomes compulsory. Registration of ownership becomes compulsory in the case of a freehold interest upon conveyance on sale or in the case of leasehold interest, on the grant or assignment on sale of such an interest.

Members know that conveyance on sale means the sale for money or money’s worth but there are also other ways in which property is transmitted — such as succession — some of which may not require that the land be registered. Despite any of my efforts to promote registration of land, we must concede that the Registry of Deeds system will be there for some time. If I thought I could wave a magic wand, wind it up and transform it into a museum, I would gladly do so. One would need to be very optimistic to say that one could establish a universal registration exercise and eliminate the Registry of Deeds within any short to medium timeframe. The resources involved in compulsory registration of the entire country would be vast. It may be that once we have fully electronic mapping and full electronic conveyancing, the resources involved in compulsory registration of the entire country would be reduced. Nonetheless, the resources would still be enormous. Compulsory registration must be done on a gradual basis. We could not engage in a burst of compulsory registration for the entire country without very significant dislocation and delay and great expense.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I accept the point made by the Minister that compulsory registration should perhaps be carried out gradually. I do not agree with him that there would be an enormous amount of additional work for the new authority, Land Registry or the Registry of Deeds because the work is carried out by the people who are registering the title. Solicitors, landowners or those who act on landowners’ behalf are the ones who do the work involved in registering title. A landowner cannot simply hand the matter over to the [1616]Land Registry. One must be well prepared before going to the Land Registry.

If things continue as they are, it will take centuries to eliminate the Registry of Deeds from the system. There is a need for some imagination in dealing with this issue. If registration can be compulsory for three counties, it can be compulsory for many more. There are costs on one hand but there are savings on the other. I would take many of the things mentioned by the Minister with a pinch of salt. I accept his point about the gradual introduction of compulsory registration. Possibly, this is the way to go about it. I am interested in what the Minister produces on Report Stage. It is the type of matter which needs to be examined by experts with regard to the best way to do it. I withdraw the amendment. I take it that having raised the issue with my amendment, the Minister will bring forward an amendment on Report Stage.

Mr. P. Burke: Information on Paddy Burke  Zoom on Paddy Burke  Senator Tuffy raises an important point. It is mainly solicitors, architects or engineers who do most of the work before it goes to the Land Registry. The Land Registry office does not appear to conduct any check but simply registers what it receives. In many cases properties are not properly registered. I am aware of a number of cases where the property registered is not the property owned by the person. This is particularly true in housing estates. It is causing a huge problem for people who are seeking to re-finance or sell their property. They cannot sell their property unless they get the permission of the people on the boundaries of their property.

These properties are all registered incorrectly. They were registered on the basis of the information given by solicitors, architects and engineers. The people concerned must approach the neighbours on their boundaries and ask them to sign an affidavit or the like to have the property re-registered if they wish to re-finance or sell their property. Alternatively, if the purchasers of the property wish to register the property and the title to it is incorrect, the boundaries must be rectified. There is a rectification process.

In my case, the boundaries of the property I had registered are not the correct boundaries. I must go to all my neighbours and go through a boundary rectification process to have the property re-registered. There is a problem in this regard.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I agree there is a problem if people present documentation to the Land Registry which is false and does not represent the position on the ground. Short of asking Land Registry officials to go out with tape measures, theodolites and the like, it is difficult to see how it can be avoided.

I do not accept the proposition that the Land Registry has nothing to do with checking the validity of a claim for registration or the opening of a new folio. The reality is that it takes responsi[1617]bility for the correctness of the registration. Moreover, in many circumstances people get a less than absolute title because of reservations and difficulties about ownership issues.

Extending compulsory registration is an issue which the new authority will have to tackle on a gradual, rolling basis. The amendment which Senator Tuffy has provoked from me relating to compulsory registration deals with one of the areas we have in mind, that is, multi-storey apartment blocks. In that type of case there is no reason that people should not have a simplified title. Since most estates are now built on farmland, there usually is registered title for most modern developments. Nonetheless, there are areas, particularly in the case of multi-storey apartments, where it should be possible to require compulsory registration, by category rather than by area.

Amendment, by leave, withdrawn.

Section 3 deleted.

Government amendment No. 5:

Amendment agreed to.

Section 4 deleted.

Government amendment No. 6:

In page 6, before section 5, but in Part 1, to insert the following new section:

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  This is a standard provision which deals with expenses incurred by the authority and the Minister in the administration of the Act. It replaces the expenses provision at section 28 of the Bill, which is being deleted.

Amendment agreed to.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  Amendment No. 54 is related to amendment No. 7, therefore, amendments Nos. 7 and 54 may be discussed together by agreement.

Government amendment No. 7:

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Amendment No. 7 is a standard provision which deals with the laying of orders and general rules made under the Act and the 1964 Act before both Houses of the Oireachtas. It replaces the provision at section 29 of the Bill, which is being deleted. Amendment No. 54 proposes an amendment to section 29 of the Bill. This section is to be deleted as a consequence of the establishment of the authority. The substance of the amendment has been taken on board in redrafting the section.

Amendment agreed to.

Government amendment No. 8:

Amendment agreed to.

Government amendment No. 9:

Amendment agreed to.

[1619]Government amendment No. 10:

Amendment agreed to.

Government amendment No. 11:

[1620]

Amendment agreed to.

Government amendment No. 12:

[1622]

Amendment agreed to.

Government amendment No. 13.

[1623]

Amendment agreed to.

Government amendment No. 14:

Amendment agreed to.

Government amendment No. 15:

[1624]

Amendment agreed to.

Government amendment No. 16:

Amendment agreed to.

Government amendment No. 17:

[1626]Amendment agreed to.

Government amendment No. 18.

Amendment agreed to.

Government amendment No. 19.

[1627]

Amendment agreed to.

Government amendment No. 20:

Amendment agreed to.

Government amendment No. 21:

[1628]

Amendment agreed to.

Government amendment No. 22:

Amendment agreed to.

Government amendment No. 23:

[1629]

Amendment agreed to.

Government amendment No. 24:

Amendment agreed to.

Government amendment No. 25:

Amendment agreed to.

Government amendment No. 26:

Amendment agreed to.

Government amendment No. 27:

Amendment agreed to.

Government amendment No. 28:

[1631]stand vested in the Authority, without any conveyance or assignment, for the estate or interest therein that immediately before the establishment day was vested in any of the persons referred to in paragraph (a), but subject to any trusts and equities then affecting the land.

Amendment agreed to.

Government amendment No. 29:

and in force immediately before the establishment day—

Amendment agreed to.

Government amendment No. 30.

[1632]

Amendment agreed to.

Government amendment No. 31:

Amendment agreed to.

Government amendment No. 32:

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan): Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  This is a technical amendment as the definition is no longer required in this Part of the Bill.

Amendment agreed to.

Government amendment No. 33:

Amendment agreed to.

Government amendment No. 34:

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  This is a drafting amendment.

Amendment agreed to.

Section 5, as amended, agreed to.

Government amendment No. 35:

[1633]

Amendment agreed to.

Section 6, as amended, agreed to.

Sections 7 and 8 deleted.

Amendment No. 36 not moved.

Section 9 deleted.

Amendment No. 37 not moved.

Government amendment No. 38:

Amendment agreed to.

Section 10, as amended, agreed to.

Sections 11 and 12 deleted.

Government amendment No. 39:

Amendment agreed to.

Section 13, as amended, agreed to.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I move amendment No. 40:

The purpose of the amendment is to allow for minor variations from the prescribed form to be accepted with the permission of the Registrar of Deeds. This is to cater for two situations, the first being in the case of misprint or minor errors which have no effect, the second being a situation where the prescribed form does not cover the precise requirement. In such cases, a form to the like effect would be sufficient and satisfactory.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  The Minister cannot accept the amendment. The section provides that an application for the registration of a deed in the Registry of Deeds shall be made in the prescribed form. The section also states that the manner in which registration is to be effected shall be prescribed. Of course, the form shall be prescribed in all registration of title legislation. I do not see the use of stating that the form of application must be in a certain form and then diluting the [1634]provision in the terms advocated by the Senator. It will be more open and clear what needs to be submitted if a standard form of the type proposed in the section is specified.

Amendment, by leave, withdrawn.

Question proposed: “That section 14 stand part of the Bill.”

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  As I understand it, there is provision for an advisory council to be established which would allow the issues raised by Senator Tuffy to be brought to the attention of the authority. In other words, I presume the authority can make recommendations and report to the Minister in respect of additional changes that should be made as a means of modernising the registration.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  It should be borne in mind that a rules committee is established under section 26 — the registration of deeds and title rules committee. With the concurrence of the Minister, that committee has the specific function under section 26(b) of dealing with the forms of application for registration of deeds or for searches and other such matters. The various professional persons knowledgeable in these matters are represented on the rules committee and can have their views made known in that forum.

With regard to the advisory council, provision is made in section 17, which is a new section.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  It was one of the amendments.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  Yes. It enables the authority to appoint advisory committees and such and so many consultants or advisers as it may consider necessary to assist it in the performance of its functions. An advisory committee could look at this issue from a wider perspective. However, it would be for the rules committee to consider an issue like this. Of course, the Law Society and the Bar Council would have representation on that committee and those who are familiar with the execution of such legal documents would have their say.

Question put and agreed to.

Sections 15 and 16 agreed to.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I move amendment No. 41:

The effect of this amendment is to ensure section 17 is constitutional. If the substantive law has been changed, there needs to be a favour for a case where proceedings have already been instituted prior to the passing and commence[1635]ment of the section. Otherwise, there is a risk the section will be deemed to interfere with proceedings in being.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  I would be obliged if the Senator re-tabled the amendment on Report Stage, if she wants a fuller assurance on the constitutionality of the issue involved. Purely in terms of the language involved, I am not satisfied the amendment adds anything to the provision as provided for in the section as it stands. Section 17 makes clear in its second subsection that the purpose of the first subsection was to validate certain registered deeds. Section 17(1) states:

That deals with the specific legal problem. Section 17(2) states:

The Senator is concerned that pending proceedings should also be protected by that subsection. I will have the matter examined.

Amendment, by leave, withdrawn.

Section 17 agreed to.

Government amendment No. 42:

Amendment agreed to.

Government amendment No. 43:

Amendment agreed to.

Section 18, as amended, agreed to.

Section 19 agreed to.

Government amendment No. 44:

Amendment agreed to.

[1636]Government amendment No. 45:

Amendment agreed to.

Government amendment No. 46:

Amendment agreed to.

Section 20, as amended, agreed to.

Government amendment No. 47:

Amendment agreed to.

Section 21, as amended, agreed to.

Government amendment No. 48:

Amendment agreed to.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I move amendment No. 49:

We propose the amendment because we think it strange that the right to make copies from the Register of Deeds is not specifically spelled out in the Bill. The only provision relating to copying is set out in section 23, which provides that copies may be admissible in evidence. However, there is nothing in the Bill as regards the right to make such copies in the first place.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  The Senator’s point is valid and I accept the amendment.

Amendment agreed to.

Section 22, as amended, agreed to.

Government amendment No. 50:

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  This is a drafting amendment regarding the renumbering of sections.

Amendment agreed to.

[1637]Government amendment No. 51:

Amendment agreed to.

Section 23, as amended, agreed to.

Sections 24 and 25 agreed to.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  Amendments Nos. 52 and 63 to 68, inclusive, are related and may be discussed together by agreement.

Government amendment No. 52:

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  These amendments are important and relate to the establishment of the Registration of Deeds and Title Rules Committee under section 44. Following the decision to establish the Property Registration Authority, consultations took place between the Department of Justice, Equality and Law Reform and the Land Registry to examine the provisions under section 26 of the Bill and the existing rules provisions in section 126 of the Registration of Title Act 1964. Amendments Nos. 52 and 63 are the result of those discussions. The provisions now contained within section 26 and the amended section 126 relate to those areas in which it is considered that the rules committee should have a general rule making power. Any of the powers previously contained within the provisions, which are of a primarily administrative nature and are considered [1638]to be properly the responsibility of the authority, have been removed from the relevant sections.

The other amendments are in the names of Opposition Members and I can deal with them in anticipation or wait to hear the Senators’ views.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  They will be discussed now.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  Amendments Nos. 64 to 66, inclusive, relate to membership of the Registration of Deeds and Title Rules Committee which has been amended to replace reference to the registrar of deeds with the chairperson of the authority and the Registrar of Titles with the chief executive of the authority.

Amendment No. 67 in the name of Labour Party Senators proposes that the chief executive officer of the Courts Service should be a member of the committee. The Minister for Justice, Equality and Law Reform cannot understand the added value which would arise from agreeing to this proposal and is not prepared to accept it. Neither is he prepared to accept the further amendments from the Labour Party on this section for the same reason.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  The purpose of amendment No. 64 is that the chief executive of the Courts Service, or his or her nominee, is already a member of the rule making committee under the Courts Act. We are proposing, in the interest of consistency, that the chief executive would also be a member of the rule making committee under section 44 of this Bill.

Amendment No. 67 is possibly no longer appropriate and I will withdraw it. With regard to amendment No. 68, while the Minister will have a function in approving rules made under this section it nonetheless seems appropriate for the purposes of democratic accountability for a person nominated by the Minister to also serve on the rule making committee.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  If accepted, amendment No. 52 will delete section 26. It is strange that the Minister of State says the Registration of Deeds and Title Rules Committee established under section 44 may, with the agreement of the Minister, make general rules for the purpose of enabling this Act. It either has the power or it does not. The Minister is saying that this rules committee will have the power to give the required prescriptive forms and registration. There is no report mechanism back to the Oireachtas, except through the new authority. Has the Government given consideration to the matter? Most of the other orders under the Bill require the Minister to make the order within 21 days and the orders will not be annulled. Why was it not considered appropriate for the Oireachtas to receive a report on the rules committee’s new arrangements?

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  The rules must be laid before the Houses of the Oireachtas under the amend[1639]ments which have been tabled and this is provided for.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Will they be laid before the House?

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  Yes. That is the position with regard to that issue. On the wider issue of the required concurrence of the Minister, this is the traditional formula used in connection with the rules of court where it is felt that there is a strong professional interest in the nature and character of the rules. However, the Minister, in the public interest, must have a final concurrence with whatever is decided. Otherwise the effect would be to surrender the legislative power to a body which is not accountable to this House.

Mr. B. Hayes: Information on Brian Hayes  Zoom on Brian Hayes  Therefore, it only becomes an order when the Minister so determines.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  That is correct. The Minister has the power of concurrence. While the Oireachtas delegates substantial authority to rules making committees, whether in the context of detailed legal arrangements for the registry of deeds and title or in respect of the courts, public interest must prevail and the Minister must have ultimate say on the approval of such an order. Otherwise we are surrendering our powers to bodies albeit comprised of eminent representatives of many worthy professional organisations. However, there must be a final safeguarding of the public interest in whatever rules are decided. Imagine a situation whereby the Law Society was to prevail upon the rules committee for a very prolix system of lodging documents for registration. The Minister might have a view in this regard and decide there is an unnecessary amount of paperwork involved for persons who use the Land Registry. That is why protection of the Minister’s interest is written into this section.

Senator Tuffy raised the issue of the chief executive officer of the Courts Service. However, there is no symbiotic relationship whatsoever between the Courts Service and this legislation. This has no connection with the Courts Service, which services the courts. The legislation relates to an entirely different entity. The Courts Service has no responsibility for the administration of matters dealt with under this legislation. The chief executive is not specified as a member of the rules committee for that reason. Of course, certain matters may arise under this legislation where recourse will be had to the courts by way of appeal from the determination of the registrar. However, this does not affect the fact that the actual administration of the Registration of Deeds and Title is committed to the service established under this legislation. There is no reason why the chief executive officer of the Courts Service should be a member of the rules making committee.

[1640]Amendment agreed to.

Section 26 deleted.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I move amendment No. 53:

I am confused as to whether matters still apply with regard to the new authority. This is a drafting amendment. Section 27 states that nothing in Part 2 shall affect deeds already lodged or registered. However, Part 1 includes the repealing of section 4, which repeals the law in force at the time of such lodgement or registration. This amendment is necessary as there is nothing in the Bill to state what will determine the rules for registration and priority of such existing deeds.

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  Section 27 deals with the very important question of the prioritisation of instruments and deeds. When I first saw this amendment, I thought that Senator Tuffy was about to make her name as somebody who is affecting a fundamental change in our law. In fact, section 27 states:

The section simply preserves the existing rules of priority, which are well established in common law, statute law and in equity. The addition of the words suggested by the Senator would not add anything to the section. The section, as drafted, covers the prioritisation of deeds and for that reason the Minister does not support the amendment.

Amendment, by leave, withdrawn.

Section 27 agreed to.

Section 28 deleted.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I move amendment No. 54:

This is a drafting amendment. We felt it would be easier if people read the Bill and were referred directly to the section rather than the part. The Minister of State might reconsider this issue.

[1641]Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  The substance of the amendment was accepted in the redrafting of the section.

Amendment, by leave, withdrawn.

Section 29 deleted.

Government amendment No. 55:

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  The purpose of this amendment is to insert a definition of the Registration of Title Act 1964 to ensure that all book indexes, documents or information contained therein may be held in electronic format. It brings the 1964 Act in line with the proposed definition of the term “record” in section 5 of the Bill.

Amendment agreed to.

Section 30, as amended, agreed to.

Government amendment No. 56:

Amendment agreed to.

Government amendment No. 57:

Amendment agreed to.

Section 31, as amended, agreed to.

Sections 32 and 33 deleted.

Section 34 agreed to.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I move amendment No. 58:

I realise that the wording in this amendment may not be correct but the reason behind it is to give the Circuit Court jurisdiction to amend errors in [1642]registration other than those that originate in the Land Registry. There may be certain errors in the title document that do not originate in the Land Registry and it is clearly appropriate that the Circuit Court, under section 35(c) on page 14, would have power to correct such errors. Can the Minister of State consider this?

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  The difficulty is that section 32, dealing with the rectification of errors in registration, is one that is contained in the land registration legislation. Therefore, the jurisdiction of the courts in a matter such as this has to derive from the Land Registry. It cannot derive from general law. The Land Registry cannot be held responsible for errors made outside its function. The whole purpose of this section is to address errors originating in the Land Registry, not errors originating generally, for which a different procedure would be required in the courts.

Amendment, by leave, withdrawn.

Government amendment No. 59:

Amendment agreed to.

Government amendment No. 60:

Amendment agreed to.

Section 35, as amended, agreed to.

Government amendment No. 61:

Amendment agreed to.

Section 36, as amended, agreed to.

Sections 37 to 39, inclusive, agreed to.

[1643]

Government amendment No. 62:

Mr. B. Lenihan: Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  This section provides for changes in the method by which compensation for error, fraud or forgery is dealt with. These matters are dealt with in the section 160 of the 1964 Act. The new wording avoids any reference to the determination of a claim by the Registrar. This is a matter that had been the subject of adverse comment by the courts.

Amendment agreed to.

Section 40 deleted.

Sections 41 and 42 agreed to.

Government amendment No. 63:

[1644]

Amendment agreed to.

Section 43 deleted.

Amendment No. 64 not moved.

Government amendment No. 65:

Amendment agreed to.

Government amendment No. 66:

[1645]

Amendment agreed to.

Amendments Nos. 67 and 68 not moved.

Government amendment No. 69:

Amendment agreed to.

Section 44, as amended, agreed to.

Section 45 agreed to.

Government amendment No. 70:

Amendment agreed to.

Schedule, as amended, agreed to.

Government amendment No. 71:

Amendment agreed to.

Title, as amended, agreed to.

Bill reported with amendments.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  When is it proposed to take Report Stage?

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  Next Tuesday.

Report Stage ordered for Tuesday, 21 June 2005.

Sitting suspended at 5.50 p.m. and resumed at 6.30 p.m.


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