Thursday, 18 October 2007
Land and Conveyancing Law Reform Bill 2006 [Seanad]: Second Stage (Resumed)
I am bound to say in starting the discussion this afternoon that as I listened on the last occasion when the Minister introduced the Bill and Deputy Charles Flanagan responded, I found myself overwhelmed by an emotion which does not frequently afflict me. As I sat and listened to the competing erudition about feudal statutes, the rule in Bain and Fothergill, the implications of the Tulk v. Moxhay decision, the omission of adverse possession and squatters' rights and the nostalgia for the Statute De Donis Conditionalibus, I was overcome by a definite feeling of inadequacy.
Deputy Flanagan's conjured up images of examiners of title with wet towels around the backs of their necks brought me out in a cold sweat. This Bill is not for the uninitiated. The people in my constituency of Jobstown reflect on very little other than the Statute De Donis Conditionalibus.
The average person will simply want to know if this Bill will speed up and streamline the conveyancing of land and if it will result in reduced costs. Business people, nowadays this includes most farmers, will want to know if the new law will assist the business environment and enhance competitiveness. Many new apartment and homeowners struggling with recent and often oppressive proliferation of management companies will want to know if it offers them better protection or if they are included. Members on all sides of the House welcome the fact that this legislation will make it easier to convey and register land thus reducing delays.
I join my colleagues who have contributed to the debate in acknowledging the role of the former Minister for Justice, Equality and Law Reform, Michael McDowell, in driving this project as a joint initiative between the Department and the Law Reform Commission. It appears that a small number of lawyers and experts in this area deserve our gratitude for a complex task, knowledgeably discharged under the direction of Mrs. Justice Catherine McGuinness and her predecessor, Mr. Justice Declan Budd.
It is true it is not typical for the regularly excellent reports of the Law Reform Commission to come with a ready made text of a draft reform Bill. Given the quality and comprehensiveness of the accompanying explanatory memorandum on this occasion, perhaps the Minister should involve the Law Reform Commission in the drafting process more frequently. In fairness to the Department of Justice, Equality and Law Reform, the former Minister's legislative style was to never stay still long enough to allow the preparation of an explanatory memorandum.
The Minister, when introducing the Bill, drew heavily on the Law Reform Commission consultation paper. There is little point in my regurgitating some of the more interesting tracts from that report though they are very interesting. However, I should put on record that the Labour Party takes no issue with the sensible guiding principles that underpin the Bill which updates the law to ensure it accords with changes in modern society, promotes simplification of the law and its language to make it more easily understood and accessible, promotes simplification of the conveyancing process, especially the procedures involved and the taking of security over land, and facilitates extension of the registration of title to land and the introduction of an e-conveyancing system as soon as possible.
As stated, the proposed modernisation of our land and conveyancing laws is welcome. Involved in this process is the consignment to history, in whole or in part, of many pre-1922 statutes and their replacement with provisions more suited to modern conditions. The ultimate goal is a comprehensive system of e-conveyancing. I ask the Minister to hazard a guess at how soon implementation of such a system is likely to be realised.
The consultation paper from the Law Reform Commission stated that registration of title was outside the scope of its report because it was dealt with recently by the Registration of Deeds and Title Act 2006. It also states, however: "What is needed primarily is completion of the computerisation programme instituted in recent years and rapid progress on extension of compulsory registration of title so as to achieve the ultimate aim of having all titles throughout the State in the system." The Minister might ask how long that project is likely to take. The layperson finds it very difficult to appreciate why the conveyancing process in the 21st century should be so cumbersome. The layperson, in his or her innocence, might have thought modern technology would greatly assist the process. The lesson from other fields of commerce is that if the process can be made amenable to modern technology surely it can be speeded up and made less expensive.
It is a long learning period. The Minister's own learned introduction of the Bill was fascinating. The average citizen, however, wants to know what the changes mean for him. Will conveyancing cost him less? I know that learned counsel, even those on leave of absence from the Law Library, do not like discussing fees but the interests of the average citizen are far more practical. The academic and sociological history may well be fascinating but what does it mean for me? The Minister seems happy enough to promote the macroeconomic benefits when he says an efficient system of title registration and transfer is essential for economic growth — and so say all of us — but there is not a word of what savings are likely to accrue to the individual purchaser, consumer and user.
The background to how approximately 85% of land in the State came to be registered in the Land Registry is the story of the agrarian revolution and how peasant proprietorship superseded Michael Davitt's original objectives. I did not know that compulsory registration of title applies, at present, in only six counties, namely Carlow, Laois and Meath from 1970 and Longford, Roscommon and Westmeath since 2006. The extension of compulsory registration of title seems a huge challenge for the property registration authority and if the Minister is correct that an efficient e-conveyancing system can only operate in respect of registered land then we have a very long way to go. Apparently, if and when this project is realised the Registry of Deeds, after 300 years, will become of interest only to historians and archivists. If we have waited since 1877——
If we have waited since 1707, we can wait another few years.
Great urgency is required, however, on a different issue, which is not addressed in the Bill but which people cannot afford to wait so long to be addressed. It concerns the plight of the many clients of property management companies. I saw recently that an estimated 500,000 people are in such circumstances so this is a major issue in property law. The Minister lectures us about the distinction between property management agents and property management companies, which is all very well, but, given the daily experience of so many heavily indebted young people — most are young — who are struggling to make ends meet, the Minister's distinction is somewhat arcane. As far as such people are concerned the property management company is frequently the plaything of the developer.
The employment of a property management agent is part of the confusion and obfuscation because the developer can manipulate the property management company. He can, for example, retain a couple of units in his ownership, by which he can frustrate the application of the normal company law provisions. He can use the property management agent to distract unsuspecting clients, who never intended to wake up wedded to a property management company and did not understand that was what they had signed up for. The local authority escapes responsibility for the taking in charge of such developments and is happy to look the other way. It is the best thing that ever happened to local authorities, given the backlog they already have in respect of the taking in charge of more conventional estates in urban and suburban areas. They are delighted at the new strategem by which so many units can grow up overnight, for which they do not have to take responsibility.
Property management agents can obfuscate and delay in delivering the services it has contracted for. Many people who live in multi-unit developments would not be concerned about the detail of company law if the services for which they paid were delivered. Very often, in my experience, those services are not delivered and, when fees are arbitrarily increased, customers have no resort to the local authority and the management company, if it can keep track of the matter, which it usually cannot, will refer them to the management agent. The agent then claims he is helpless as he only has so much money in the kitty and is doing his best. In most cases, the agents have no experience of being a company, running it according to company law and requiring the services for which they have contracted be delivered. It is a mess.
It is very well for the Minister to say he looks forward to the final report of the Law Reform Commission. He said: "It will provide a foundation for which we can develop the necessary amendments to the legislation that regulate these corporate entities." That is a marvellous sentence. The Minister is well capable of such a sentence but I do not know if he came up with it himself because it needs to be worked on and there is a lot involved in it. If the 500,000 occupants of the developments to which I referred have to wait for the entire process to come to completion, this will be a project for the Minister's successor and that will not be greeted warmly outside this House. Thousands of people need redress now.
If the Law Reform Commission did such an excellent job as we have credited it with doing, in not only publishing the consultation paper but in producing the text of a draft Bill, surely the Minister can approach the commission to ask its members to undertake a similar task in respect of this more modern problem, and to resource it accordingly. The Minister is now saying that the Department of Enterprise, Trade and Employment, the Companies Registration Office, the Office of the Director of Corporate Enforcement, the National Consumer Agency and the Department of Justice, Equality and Law Reform are involved. Anyone with any experience of Government knows that the drafting process in such circumstances is a never-ending project and its effect is to put it on the long finger. Who will take the lead? Will it be the Companies Registration Office or the Department of Enterprise, Trade and Employment?
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.