Sheila Terry (Fine Gael)

I move amendment No. 19:

In page 27, before section 28, but in Part 6, to insert the following new section:

"28.—Where a co-ownership is to be established, it shall be established as a tenancy in common and no joint tenancy shall be created unless—

(a) it is the stated intention of all parties to the co-ownership to create a joint tenancy, and

(b) each party to the co-ownership has signed a declaration to the effect that he or she understands—

(i) the difference between a tenancy in common and a joint tenancy,

(ii) that the creation of a joint tenancy means that, upon his or her death, his or her interest in the land passes automatically to the surviving co-owners(s), and

(iii) that a joint tenancy cannot be severed other than in accordance with section 28.".

I am standing in for Senator Cummins, who has put a good deal of work into this amendment, as indeed he has into all of those he has tabled. I shall endeavour to cover what he had prepared for it.

This amendment is an important one, and its function is to make tenancy in common the default status of co-ownership. People generally understand that if a person owns a share in a property, land or building, it will pass to his or her heirs on death. That is the situation where a tenancy in common is concerned, yet very often co-owners inadvertently create a joint tenancy, thereby denying their heirs any right of survivorship.

People should not be put in a situation where they may sleepwalk into a joint tenancy. The law on this issue at the moment is that in the absence of a specific instruction to the contrary a joint tenancy is assumed. Undoubtedly there are circumstances where a joint tenancy is exactly what is required. Certainly we see entirely intentional joint tenancy in marriage, between business partners etc. The concept of a joint tenancy is important for such circumstances and the obvious flipside is that in the event of the death of a tenant in common, his or her heirs could sell the inherited interest in the property from under the other co-owners without any consideration for their concerns.

However, many people will be unaware of the consequences of the establishment of a joint tenancy, and it should be made very clear to them beforehand. I would urge the Minister to accept this amendment for the three following reasons. Many joint tenancies are unintentionally created by buyers and they are unaware of the consequences of their actions in this respect. This amendment would not make the creation of a joint tenancy any more difficult, but it would ensure informed decisions by buyers.

Joint tenancy is a common law doctrine and therefore unfamiliar to most jurisdictions. With the increase in population in Ireland, particularly from other EU countries, the majority of which operate a civil law system that would not allow a joint tenancy to exist, it would be prudent to accept this amendment to ensure that buyers are fully aware of the pitfalls of the type of co-ownership they create. While ignorance is never a defence, it is surely worthwhile guaranteeing that all buyers are equally informed at the time of purchase.

With the increased measures laid out in section 28, it would be all the more difficult for joint tenants to sever a joint tenancy or convert it to a tenancy in common. This should be accompanied by increased safeguards against purchasers making decisions on the basis of misinformation or misconception. I should welcome the Minister's response to the proposed amendment.