Pat Rabbitte (Dublin South West, Labour)

I am glad to hear that. This is the first time it has been made clear in this House which Minister will take responsibility for bringing legislation before the House. Given the amount of contact there would have to be between officials in the Department of Enterprise, Trade and Employment and the Department of Justice, Equality and Law Reform in terms of the consumer, enforcement and company law angles, it would take an unconscionably long time if we were to go down the traditional route.

The more modest step proposed by the Minister in respect of property management agents to bring them within the remit of the licensing system proposed for auctioneers or the National Property Services Regulatory Authority is welcome but it will make little impact on the substantive issue I am trying to ventilate. It is clear from what the Minister has said that at least we now have a situation where a single senior Minister is responsible for the task of initiating legislation and bringing it before the House. The Minister may consider that he is embarking on a thankless task because the issue is quite complex. However, he must have tens of thousands of people in his constituency who are awaiting redress. There may be more of an electoral dividend in this than the Minister considers. There may be one or two developers with their noses out of joint, but it would never cause Fianna Fáil any grief to bring that about. I ask the Minister to come down on the side of the tens of thousands of oppressed owner occupiers who are in the circumstances I describe.

The Bill does not deal with landlord and tenant law to any significant extent and that is also an area of the law which requires overhauling and codification. There is a definite need to review all landlord and tenant legislation for the purpose of establishing a clear, simple, consolidated statutory code. Otherwise the law will be seriously out of touch with modern practice. Only last week I was consulted about a case where a tenant of 23 years standing was obliged to vacate her apartment on the pretext of necessary repairs and thus contract for new accommodation for 11 months, 11 months being the period that she was told would be needed for the repair and refit of her accommodation. Without notice, she was then required to return to her original accommodation after only half of the time had elapsed, at a 220% increase in the rent. If she does not come up with the 220%, if she does not pay off the new landlord to whom she is pledged for 11 months, she will forfeit her original accommodation. I have no doubt that was the purpose of the exercise.

It seems to be public policy to encourage a shift towards apartment living. If that is the case, the law lags seriously behind in terms of dealing with landlord and tenant law and protecting tenants in the kind of situation I have described. In that case, a woman who has been in her apartment for 23 years at a particular rent, who has been evicted on the pretext of necessary refurbishment which will take 11 months, had to contract for new living accommodation paying seriously increased rent, only to be told halfway through that if she does not come back to the original accommodation immediately she will forfeit it and that the new rent will be 220% of what she was paying originally. We are far behind the play in that regard.

Historically, Irish law has always been protective of a landowner who has become mentally incapacitated. There is a high degree of certainty in terms of persons with a disability. Section 35 seems to bear that out. However, section 35(2) seems to inject uncertainty into the position and seems to offer less protection for such a vulnerable person. It leaves it open to a court to consider whether it would be reasonable in all the circumstances to have expected some other person, for example, a trustee or the committee of a ward of court, to have acted on behalf of the incapacitated owner. It is very difficult to know how this situation might be construed. What would the test be as to what a court might or might not consider reasonable in these circumstances?

An issue that arises from time to time is where one is prevented from carrying out essential repairs to one's property because, in the absence of consent from the adjoining owner, a technical trespass occurs. At the moment there is a legal vacuum in that regard. I do not know if I am correct but I understand that when this Bill is enacted a party may go to the District Court for a works order, which should bring clarity to the situation. It is an issue that most Deputies in this House have encountered in their clinics and a clear answer would be appreciated.

Another controversial area that gives rise to disputes between neighbours relates to rights of way and the extinguishment of same. As the law stands, 20 years abandonment or non-usage would not in itself automatically give rise to extinguishment. To prove that a right of way over land has been extinguished, it must be proved that the holder of the right not alone has ceased to exercise it for a minimum of 20 years but has also demonstrated a firm intention of not using it again. It is extremely difficult to prove abandonment, as the case law shows. Subject to correction by the Minister, the position under the proposed section 37 will be that a right of way is extinguished after 12 years continuous non-usage unless it is protected by registration in the Registry of Deeds or the Land Registry.

In chapter 12 of this consultation paper from the Law Reform Commission on adverse possession, the commission seems to expect that the opportunity would be taken to deal with this issue. Perhaps I am reading that incorrectly but it seems that the 2002 report on title by adverse possession of land has not been implemented. It appears that in a number of areas the law of adverse possession, known as squatter's title, needs to be clarified and improved. Judges do not always agree as to what amounts to adverse possession in Irish law. We need a clear, simple definition of adverse possession. There is a need to end the difference in treatment between tenants who hold under a written tenancy agreement and tenants who do not have a written tenancy agreement when it comes to squatter's title to the property they occupy. At present, the Statute of Limitations 1957 treats both categories differently. I fail to see the justification for this difference.

Another matter that is not included in the Bill, and that the Minister has avoided, has arisen more frequently in recent years than previously, namely, the question of the right to roam. My colleague, Deputy Quinn, produced a very thoughtful and innovative way of addressing this issue. It was also very timely because I believe it caused our vote in the farming community to rise exponentially in the general election.

Apart from that consideration, the fact is that there is a real issue to be dealt with and Deputy Quinn's Bill is a thoughtful effort at doing so. It does not affect land that is capable of being cultivated or land above 500 m sea level. I take no comfort from the fact that the matter is in the possession of the Minister for Community, Rural and Gaeltacht Affairs, Deputy Ó Cuív. Whatever hope I carry in my heart that the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, might bring forward a Bill to curb and regulate property management companies, the prospect of the Minister, Deputy Ó Cuív, emerging with legislation that will bring the farmers of Ireland in behind the right to roam is very remote.

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