Michael McDowell (Dublin South East, Progressive Democrats)

Yes. The intention behind Senator Cummins's amendment No. 16 is to require co-owners to take deliberate steps to create a joint tenancy, if that is their collective wish. Otherwise, a tenancy in common would be the default position. What we are discussing is really a choice of default positions.

Senator Cummins will have read the debate on the previous Stage where I indicated I would consider the issue carefully, and we did so in the Department. Although many people may not be aware of the legal implication of creating a joint tenancy rather than a tenancy in common, we remain unsatisfied that it is a sufficient reason to change the law and produce a different default position.

Almost everyone who buys property in Ireland will need to hire a solicitor to engage in the conveyance of the property. It is a matter, usually for the solicitor, to fully advise the client on the legal implication of either form of conveyance. Any person intending to buy property, be it in Ireland or abroad, would be very foolish to do so without getting independent legal advice on a matter of such importance, particularly if the person is unfamiliar with the law.

I am also mindful that the intention of the amendment would perhaps be inconsistent with section 14 of the Family Home Protection Act 1976, which encourages married couples to create joint tenancies in respect of family homes by reducing the costs involved in creating joint tenancies. It is a value of that Act that the costs of creating a joint tenancy are reduced compared with other transactions.

Section 14 states, "No stamp duty, land registration fee, Registry of Deeds fee or court fee shall be payable on any transaction creating a joint tenancy between spouses in respect of a family home where the home was immediately prior to such transaction owned by either spouse or by both spouses otherwise than as joint tenants." In that case we effectively give a subsidy or tax exemption for a transaction going in favour of joint tenancy.

With regard to other amendments in the grouping, amendment No. 17 is a drafting amendment, with amendments Nos. 18 and 21 consequential to amendments accepted on Committee Stage. Amendment No. 19 amends section 28(3) by deleting the reference to the vesting of an estate or an interest of an insolvent joint tenant in the official assignee or a liquidator.

It emerged during the consideration triggered by Senator Cummins's original amendment that operation of the right of survivorship could create difficulties if a joint tenancy were deemed not to be severed in the case of a bankruptcy or liquidation. The amendment also clarifies that while the registration of a judgment mortgage against a joint tenant does not sever the joint tenancy, the judgment mortgage is extinguished in the event of the death of the judgment debtor, and it does not remain a burden on the surviving joint tenant or tenants.

That is an important point. For example, if a husband and wife own a house as joint tenants, and if the wife, to take an unusual example, ran up debts and a judgment mortgage was registered against her interest in the land, it would die with her. The husband's interest in survivorship would be taken clear of the judgment mortgage.