Brian Lenihan Jnr (Dublin West, Fianna Fail)

I thank Deputies for their contributions and for their broad support for the reform proposals set out in the Bill. While it undoubtedly contains many technical proposals and measures, the aim of the Bill is to update our land and conveyancing laws in order to meet the changed needs of the 21st century. The Government recognises the need for an up-to-date and streamlined conveyancing code that will reduce the time taken to buy and sell property and improve economic efficiency. In short, an up-to-date code is needed to protect consumers and facilitate economic activity in a vibrant market economy.

Many of the points made by Deputies were detailed in nature and may be discussed on Committee Stage. However, I wish to reply to some of the more general issues raised.

Deputy Rabbitte asked whether there are plans to modernise the landlord and tenant code. I am happy to say that work on such a project is already well under way within the Law Reform Commission. I look forward to the conclusion of that project and to proposals for updating the law in this important area.

Deputies Flanagan and Rabbitte referred to issues relating to registration of title and the relative lack of progress in recent years in extending compulsory registration of land. While I agree that perhaps more could and should have been done, the position is that the specific function of promoting and extending registration of ownership of land has been given to the Property Registration Authority. I discussed the matter with the chairman of the authority and it is important to progress the compulsory registration of land.

Towards the end of the 19th century, various land purchase acts, with which many of us are familiar, were enacted. These provided loans for tenant farmers to purchase their holdings from landlords, subject to annual repayments in the form of land purchase annuities. As these schemes involved public funds, it was considered that title to the lands should be secured by means of registration. As a result, the Local Registration of Title (Ireland) Act 1891 made provision for establishment of the Land Registry and provided that the registration of title was compulsory in all cases where land was purchased under the land purchase schemes. All of this land has remained within the registration of title system and approximately 85% of land in the State, including almost all farmland, is registered with the Land Registry.

The Registration of Title Act 1964 repealed the 1891 Act and made provision for the gradual extension of compulsory registration to complete the land register. Compulsory registration was introduced in counties Carlow, Laois and Meath in 1970. Last year, counties Longford, Westmeath and Roscommon were added to the list. Since most of the farmland in these counties was already registered, the main impact has been on transactions involving urban land.

While urban land outside compulsory areas may be registered under existing provisions on a voluntary basis, much of it remains unregistered because of the time and effort which may be required to register it and because of the problems which may arise in sorting out complex "pyramid" titles. It is difficult to say how many of these unregistered titles remain and it could be as many as 350,000. In the case of these titles, the transactions must be registered at the registry of deeds. However, the underlying root of title must be evidenced by a sequence of transactions in respect of the land. A major challenge for the Property Registration Authority is to devise a strategy to promote and extend the registration of urban land throughout the country. I understand the authority is in discussions with the Law Society with a view to drawing up its future strategy for extending title registration as required by the legislation under which it was established.

Deputies Rabbitte and Terence Flanagan queried the present position regarding adverse possession of land. I will respond in light of the recent judgment of the European Court of Human Rights in Pye v. UK. The statutory position is that applications for title based on adverse possession are made to the Property Registration Authority under section 49 of the Registration of Title Act 1964. In such cases, the applicant claims that the rights of the registered owner have been extinguished under the Statute of Limitations and that the applicant is now entitled to be registered as owner. For obvious reasons, the authority considers all applications for registration based on adverse possession with particular care and attention.

Some applications are withdrawn on receipt of correspondence from the authority outlining the legal conditions necessary to acquire title by means of adverse possession. Where it appears to the authority that an application does not meet the stringent requirements of section 49, the application will be refused. It is open to any party to appeal a decision to the courts but in practice such appeals are rare.

The recent judgment of the Grand Chamber of the European Court of Human Rights reversed an earlier ruling which held a system which provided for adverse possession of land without any possibility of financial compensation infringed property rights safeguarded under the European Convention on Human Rights. My Department is still examining the full implications of the judgment.

I understand the Law Reform Commission intends to examine issues surrounding adverse possession in its next law reform programme and I welcome this development. I am sure the commission's future work will provide a sound foundation on which to base future reforms in this area. The threat emerging from the jurisprudence of the European Court of Human Rights that our system of adverse possession was contrary to our international obligations has receded.

Deputy Rabbitte raised the important issue of recreational use of land and the rights to access to land for that purpose. Deputy Crawford also touched on this matter when he mentioned the right to roam. The matter is being handled by my colleague, the Minister for Community, Rural and Gaeltacht Affairs, Deputy Ó Cuív, and I have no wish to roam into his areas of responsibility.

With regard to solicitors' undertakings in respect of mortgage lending I want to stress that I cannot comment on individual cases, particularly as the issues raised are linked to matters which are before the courts at present. I am glad Deputy Crawford raised this issue in his contribution because it is of great public concern.

The process whereby a purchaser's solicitor may act for both the purchaser and a lending institution was agreed between the legal profession and the banking sector and has been in operation for approximately 20 years. The process is designed to benefit those transacting residential conveyancing in that it permits the purchaser's solicitor to act on behalf of the lending institution. This has reduced costs to the benefit of consumers and reduced the length of time taken to complete the conveyance. It was never intended that the process would be used for commercial purposes nor was it intended that the process should be used where the applicant was the lodging solicitor.

As part of the process, in so far as it applies, the purchaser's solicitor will usually give an undertaking to a financial institution to the effect that he or she will ensure that the purchaser has a good marketable title to the property, that the documents are executed and that all the title deeds are stamped, registered and lodged with the relevant institution. In addition, pending lodgement of the title deeds with the bank or building society, generally the solicitor will undertake to hold the deeds in trust for the lending institution. In this context, it is important to note that where a solicitor fails to honour an undertaking given, it is considered to be professional misconduct and as a result the solicitor is rendered liable to the Law Society's disciplinary procedures and to investigation by the solicitors' disciplinary tribunal. Depending on the particular circumstances of a case the criminal law may also apply.

Mortgage lending is primarily a matter for the financial institutions involved and Deputies will appreciate that I have no function in the system of banking and making loans available to clients. The Financial Regulator is responsible for the prudential supervision of Irish-licensed financial institutions and is independent in matters of day-to-day supervision. The regulator has consistently conveyed to lending institutions that mortgage lending policies and practices should be prudent and responsible. I have indicated to the House that it is in everybody's interest that the best practices which clearly exist in the area of solicitors' undertakings are followed. I also stated that in so far as any matters are to be reviewed or issues to be addressed by the Government, Deputies can be assured that the responsible Ministers will do so.

The matter of multi-unit developments were raised by several Deputies and they are a major issue of property law in the public mind. Together with auctioneers and estate agents, property management agents will be covered by the licensing system to be operated by the national property services regulatory authority. Deputy Terence Flanagan raised the matter of the timescale for the legislation establishing the authority. It is being drafted in the Office of the Parliamentary Counsel.

Property management companies, which are the owners of units within multi-unit developments, are regulated under company law and are subject to its enforcement mechanisms, including the Companies Registration Office and the Office of the Director of Corporate Enforcement. In recognition of the complex nature of the difficulties arising in regard to the structure and governance of these companies, and the cross-cutting nature of many of them, the Government has established a high-level interdepartmental committee to assist in the development of a coherent and comprehensive legislative response.

The key task facing the committee is to identify the legislative and administrative actions to be taken on receipt of the Law Reform Commission's definitive recommendations for legislative reforms in its forthcoming report on multi-unit developments. The commission will publish the report later this year following completion of a consultation process.

Deputy Durkan raised the matter of property held in common. Section 28 of this Bill will prohibit the unilateral severance of a joint tenancy without the written consent of the other joint tenants. This should help deal with the problem described by Deputy Durkan. He also raised the question of airspace and its connection with property law. The inclusion of airspace in the definition of property reflects the existing law on this issue as determined by the courts.

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