Ivana Bacik (Independent)

I move amendment No. 9:

In page 6, line 36, before "ownership" to insert "the unencumbered beneficial and legal".

Amendment No. 9 arises out of Committee Stage proceedings. It was not tabled on Committee Stage but arose from the debate on an amendment to section 4(2). It provides for the insertion of, in line 36 in page 6, before "ownership", the words, "the unencumbered beneficial and legal", to qualify what is meant by ownership. The reason for this is that we believed the Minister might have created an ambiguity in terms of what is to be transferred to the management company. We had assumed that both legal and beneficial interest in the common areas and the reversions would have to be transferred to the management company, but the Minister, if I am right, is now providing in section 4(2) that the developer can retain the beneficial interest in any development established before the Act. This makes it more important to ensure the beneficial interest in developments after the Act is transferred, not just the legal interest.

We can deal with pre-Act developments when we get to section 4. This amendment would also ensure the developer is not entitled to transfer the reversion or common areas subject to a mortgage or charge — hence the word "unencumbered" — because we felt that would frustrate the purpose of the Bill.

Amendment No. 9 is to be discussed in conjunction with amendment No. 25, which attempts, again, to insert the word "unencumbered" into section 10(1). The Bill would thus state "the unencumbered beneficial interest" rather than "the beneficial interest". This would clarify that the management company is to get clear title under section 10 as well as under section 3 as amended by amendment No. 9. Both of these amendments arose from debate on Committee Stage.