Ciarán Cannon (Galway East, Fine Gael) | Oireachtas source

I am standing in for my colleague, the Minister for Justice and Equality, who is unavailable. I thank the Senator for raising this matter on the Adjournment. The Minister has asked me to inform the House that he is not in a position to comment on the particular situation in the Lismore Park area of Waterford but welcomes this opportunity to outline the current situation with regard to ground rents.

The rights of tenants occupying residential property under long leases have been under discussion since the latter half of the 19th century. In such situations, the tenant normally pays a ground rent to the landlord. The problem that arises is the tenant's rights on expiry of such a lease. Under common law, the land and buildings reverted to the ground landlord leaving tenants with no right to compensation for losing the houses they, or their predecessors, had bought and no guarantee of any renewal or extension of their leases. In the event of renewal or extension, there was no guarantee that the terms were fair or reasonable.

A number of changes in the law during the 20th century greatly improved the situation for tenants. Under the Landlord and Tenant Act 1931, as amended by the Landlord and Tenant Act 1943, tenants with a "long family equity" became entitled to new tenancies on expiry of the original lease, or up to seven years before expiry, at rents fixed by the Circuit Court, in default of agreement. The Landlord and Tenant (Ground Rents) Act 1967 gave tenants the right to acquire the freehold - that is, to acquire the fee simple - of the property. The ground landlord has no option in the matter. The Landlord and Tenant (Ground Rents) Act 1978 prohibited the creation of new ground rents in respect of dwellings, and leases after that date are only valid if they operate as a renewal of an existing lease. The Landlord and Tenant (Ground Rents) (No.2) Act 1978 simplified procedures and gave the Land Registry, now the Property Registration Authority, responsibility for operating a special scheme for dwelling houses. This scheme greatly reduces the costs involved for tenants and, to date, over 80,000 ground rents have been bought out under this scheme. Of course, other ground rents may have been dealt with without recourse to the scheme.

In summary, the Landlord and Tenant Acts from 1967 to 2005 have improved conditions for ground rent tenants and contain provisions which permit certain tenants to acquire the fee simple, thereby ending their liability for the payment of ground rent to the ground rent landlord. The Acts provide a general right to such tenants to acquire the fee simple and for mechanisms for determining the purchase price in order to compensate the landlord. One further aspect of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 worth noting is that section 27 provides that a landlord cannot re-enter or take possession of a premises where the tenant is in arrears with a ground rent. While prohibiting the creation of new ground rents on dwellings, the 1978 Act did not abolish existing ground rents and this has given rise to periodic demands for their abolition.

The position on the possible abolition of ground rents is that legal advice obtained from the Attorney General's office in recent years has drawn attention to possible constitutional difficulties with proposals to abolish remaining ground rents.

These relate mainly to the possible infringement of property rights. First, difficulties in respect of the rights of tenants could arise by forcing such a tenant to acquire the fee simple, that is, the act of transforming a current right into an obligation. Such a tenant may have no wish to purchase the ground rent, or not immediately at any rate. The current scheme is open ended. On the other hand, a tenant might not be able to afford the purchase price despite the reasonable way in which it is calculated. Second, removing for compensation purposes the distinction between leases with more than 15 years to run and those that have either expired or have less than 15 years to run could be seen as infringing upon the property rights of ground landlords. Third, securing payment of the ground rent purchase price as a charge on the property, for example, in order that the tenant does not need to pay cash up front for the buy-out of the ground rent, could also create problems, in that there could be an accumulation of interest charges until the dwelling changed hands. Payment of the accumulated debt might then require that the property be sold.

The Minister, Deputy Shatter, would add that the All-Party Oireachtas Committee on the Constitution, which published its ninth progress report, dealing with private property, in April 2004, also noted that a ground landlord's ground rent represented a right to an income that, in principle, was constitutionally protected and that any legislation to abolish ground rents must include a scheme of adequate compensation.