Thursday, 5 May 2005
Registration of Deeds and Title Bill 2004: Second Stage (Resumed).
In short, there is now an urgent need to replace the current system with provisions more suited to modern conditions. This will involve the outright repeal of the eight old statutes under which the Registry of Deeds currently operates and their replacement, where necessary, with modern provisions. I think Senator Norris will be struck by the following matter. The Registration of Deeds Act 1707, which we are proposing to get rid of, states it is an Act "for securing purchases, preventing forgeries and fraudulent gifts and conveyances of land, tenements and hereditaments, which have been frequently practised in this kingdom, especially by papists, to the great prejudice of the Protestant interest thereof".
That was before the soup days. In the early 21st century we will repeal a post-penal law statute. I want to acknowledge that the Registry of Deeds has served this country well since its establishment back in 1707. I also want to take this opportunity to thank the Registrar of Deeds and the registry's staff for their commitment and hard work. I visited the registry recently, having studied for many years in the King's Inns portion of the building. I had never been in the registry before. It is an extraordinary building and an extraordinary system that has existed for three centuries. The fundamental principles that operate there have remained largely untouched.
Part 2 of the Bill, sections 5 to 29, provides an updated legal basis for the registry's operations. The general aim has been to ensure, as far as possible, there is a uniform and coherent approach to registration in both the Registry of Deeds and the Land Registry. For this reason, the new provisions set out in this part are, where appropriate, based on corresponding provisions in the Registration of Title Act 1964 which govern the operations of the Land Registry. The detailed registration procedures will be set out in general rules which will be drawn up and implemented under the power provided in section 26.
Section 5 contains the definitions of various words and terms appearing in this part of the Bill. The broad definition of "deed" is worth noting. It includes "information in electronic or other non-legible form which is capable of being converted into any of the preceding documents". Although the system of registration of deeds was established in 1707, it will now be adapted to take electronic documents into account. Sections 6 to 11 contain revised provisions relating to the structure and staffing of the registry, while section 12 makes provision for the charging of fees for the registry's services. The latter is based on the corresponding section in the Registration of Title Act 1964 regarding Land Registry services.
Section 13 makes provision for the register of deeds. To facilitate computerisation of records, it is provided that the register may be in an electronic or other non-legible form which is capable of being converted into legible form. Section 14 deals with the applications for registration of deeds. While the current legislation goes into exhaustive detail on this matter, section 14 simply provides that the manner of application and registration shall be set out in general rules to be made at a later stage under section 26. This flexibility will allow the registry to adapt to and take advantage of future advances in information technologies and systems.
The method by which applications for registration are to be recorded in the future is addressed in section 15. At present, applications are recorded according to the day and hour at which they are lodged in the Registry of Deeds. The mere fact that memorials must be physically delivered to the registry is outdated considering that an increasing number of sales and conveyances are now being completed in electronic form. The current antiquated system also hinders any progression towards e-conveyancing. As an alternative I have decided that in future all applications will be allocated a serial number. The method by which the numbers will be allocated will be laid down in general rules.
Establishment of priority between deeds has been the primary purpose of the Registry of Deeds system since its establishment in 1707. Section 16 provides that deeds shall rank in priority among themselves according to the priority determined by the serial number allocated under section 15. In the event that two deeds relating to the same piece of land are presented for registration on the same day, the deed with the earlier serial number will have priority.
The section further provides that a deed which is not registered is void against a deed which has been registered. In subsection (3), I have made provision for those rare occasions where a person claiming under a registered deed had knowledge of an earlier unregistered deed. Notwithstanding the provisions contained in this section, the normal rules of law or equity will apply in such cases. It has been the practice of the registry to receive memorials of instruments in cases where execution by grantees only is proved. Section 17 is a technical provision designed to remove any future doubts regarding the validity of such memorials.
One of the most curious features of the current legislation governing the Registry of Deeds is the lack of any provision for rectifying errors, even where an error originates in the registry itself. Section 18, which is based on the corresponding section 32 of the Registration of Title Act 1964, introduces such a provision for the first time. Section 19 makes it an offence for any person to procure or try to procure the registration of a deed which is false in any material respect or where the person knows the signature on the deed to be false. The penalty on summary conviction is set at a fine not exceeding €3,000 or imprisonment for a term not exceeding one year or both. Where a person is convicted on indictment, the penalty is a fine or imprisonment for a term not exceeding five years or both, which makes it an arrestable offence.
Section 13 makes provision for the keeping of a register of deeds. Section 20 provides for the retention of other records, such as indexes, in the registry. Once again, it provides that such records may be held in electronic or other non-legible form capable of conversion to a permanent legible form. This will be a revolution. On my trip around the Registry of Deeds I saw rooms filled with vellum dating from the early 18th century. They are fascinating documents and are museum pieces in many respects. The new system will be adapted for the 21st century.
Searches of its register and records have always been a part of the service provided by the Registry of Deeds. The method by which such searches is to be carried out is prescribed in great detail in current legislation. This is inflexible and, therefore, unsatisfactory. In future, the manner by which such searches shall be carried out should be governed by general rules. Section 21 provides for this.
Section 22 deals with the inspection and examination of the register and other records held in the Registry of Deeds. The section provides that a person may inspect, examine, make notes of or take extracts from any such register or records. The manner in which the searches should be made and any conditions relating to the searching or inspection of the register or records shall be prescribed in general rules. In section 23, provision is made for judicial notice to be taken of copies of the register or any other record held in the Registry of Deeds. The word "reproduction" is included in subsection (a) because I believe that printouts of records held in electronic or non-legible form should be admissible where certified by a member of the staff of the Registry of Deeds without requiring any further proof. The purpose is to avoid having to prove such printouts as original documents, for example under the best evidence rule.
One of the many anachronisms in current legislation is the provision dealing with the index of lands established under section 17 of the Registry of Deeds (Ireland) Act 1832. This index was to be used, in conjunction with the names index, for the purpose of searching the register. In practice, the names index proved more useful and the index of lands fell into disuse. As a consequence, it has not been maintained since 1946. Section 24 gives authority to the closing of the index of lands on 31 December 1946. A similar index in Northern Ireland was closed in 1967. Certain other records held in the Registry of Deeds have not always been maintained in accordance with the old and outdated legislation.
Section 25 addresses this and provides that the various books mentioned there were closed during the periods in which they were not properly maintained. I have already mentioned that in future detailed practices and procedures will be set out in general rules. Section 26 provides that the rules committee established under section 44 may make rules in respect of these and other matters. These rules will replace all those outdated and prescriptive provisions contained in the pre-1922 statutes which are being repealed.
Section 27 is a transitional provision which covers the lodgement of applications for registration prior to commencement of the section. It also provides that nothing contained in this part of the Bill affects the registration or priority of a deed registered prior to the commencement of the section.
The legislation under which the Land Registry operates also needs updating in order to facilitate the ongoing modernisation of practices and procedures, such as the use of digital maps and the computerisation of records. The proposed amendments to the 1964 Act which are set out in Part 3 of the Bill meet this need and also pave the way for the introduction in due course of an electronic conveyancing system known colloquially as e-conveyancing.
Section 30 amends section 3 of the 1964 Act which contains various definitions. A new definition of "index" is added while several other definitions will be amended. In particular, the definition of the Land Purchase Acts in the 1964 Act is being amended by deleting the current reference to the Irish Church Act 1869. This change is related to the amendment of section 23 of the 1964 Act, which is provided for in section 34.
Section 23 of the 1964 Act deals with the compulsory registration of freehold title in certain circumstances, including any land sold, conveyed or vested under the Land Purchase Acts. It appears that difficulties have arisen on titles to property which were the subject of redemption of a fee farm rent under the Irish Church Act 1869. The Law Reform Commission first recommended legislative change on this matter in a 1989 report and returned to it with a revised recommendation in a 2003 report. It is intended that dropping the reference to the 1869 Act from the definition of the Land Purchase Acts, together with the proposed amendment to section 23 of the 1964 Act in section 34, will remedy the difficulties that have been identified. The section also deletes the definitions of "local office" and "local registrar". The 1964 Act made provision for local offices in each county other than County Dublin and for the county registrar to act as the local registrar of the Land Registry. The local registrars kept duplicates of the registers in local offices for inspection by persons residing in the locality. However, in future, the register will be available electronically and this will in turn obviate the need to maintain duplicates at local level.
Section 31 states that there shall be an office or offices for the purpose of registering ownership of land in the State to be known as the Land Registry. The new section is similar in construction to that proposed in section 6 of the Bill for the Registry of Deeds. Section 32 amends section 12 of the 1964 Act, which deals with staffing, to delete the references in it to local offices. Section 33 deals with the official seal of the Registrar of Titles.
The recommendation of the Law Reform Commission on land sold, conveyed or vested under the Irish Church Act 1869 is dealt with in section 34. Paragraph (a) deletes the words "or is deemed to have been" from section 23(1)(a). The benefit of this deletion is that no person could query a title on the grounds that while registration was no longer compulsory, it had been compulsory at some time in the past and should now be registered. Paragraph (b) expressly provides that registration of ownership of such land is deemed never to have been required merely by virtue of the sale, conveyance or vesting. In short, the section removes land covered by the Irish Church Act 1869 from compulsory registration and, in cases where it has not been registered, provides that compulsory registration is deemed never to have been required for such lands.
Section 35 substitutes new subsection (1) into section 32 of the 1964 Act. The effect of the new subsection is to enable the registrar to amend errors originating in the register where she or he is satisfied that the error can be rectified without injustice to any party.
Section 36 substitutes a new section 84 in the 1964 Act. Section 84 deals with the maps used in the Land Registry. The new section is designed to enable the Land Registry to use digital maps and is a vital provision which will eventually facilitate e-conveyancing of land. Section 37 replaces section 85 of the 1964 Act, which deals with the description and identification of registered lands, and is a consequence of the preceding amendment. The powers of a person entitled to be registered as owner of land or of a charge are dealt with in section 90 of the 1964 Act. Concern has been expressed that the powers granted under section 90 are too narrow because they do not refer to the granting of a lease, an easement or a profit À prendre. This concern is addressed in section 38 of the Bill. Computerisation will require changes in procedures regarding searches and inspection of records. Section 39 provides for inspections and searches of the register and maps in the form in which it is recorded or in a legible reproduction of it.
Compensation for losses suffered as a result of errors in the register originating in the Land Registry is governed by section 120 of the 1964 Act. One specific part of section 120 which has been the subject of criticism in the courts is subsection (5)(b), which provides that the registrar shall determine the claim. Section 40 amends section 120 of the 1964 Act to avoid any reference to the determination of a claim by the registrar and provides that if a claim is not settled either the claimant or the Minister for Finance may apply to the court to determine the amount of compensation payable. The registrar is no longer the arbitrar of compensation for errors of this kind.
Section 41 amends section 123 of the 1964 Act, which deals with the effect of words of transfer. In 1998, the Law Reform Commission recommended certain changes. The amendments set out in the new subsections (4) and (5) are needed because section 123 as currently constituted does not appear to apply to the granting of rights such as an easement or a profit À prendre. Without these words of limitation it would appear that the easement or profit À prendre would last for the lifetime of the grantee only. These amendments will only apply to instruments of transfer dated after the commencement of this section.
Section 42 is a new provision which will enable judicial notice to be taken of certified copies of entries in registers or other records, including certified copies of reproductions of documents, entries or records kept electronically. It mirrors the provision included in section 23 on the Registry of Deeds.
It is intended that a new registration of deeds and title rules committee will be established under section 44 to oversee the making of general rules for both the Land Registry and the Registry of Deeds. Section 43 amends section 126 of the 1964 Act to take account of the new committee. At present, the making of general rules for the Land Registry is carried out by the Registration of Title Rules Committee established under section 73 of the Courts of Justice Act 1936. There is no current legal provision allowing for the making of general rules for the Registry of Deeds. As stated earlier, the practices and procedures of the Registry of Deeds are governed by primary legislation dating back to the 19th century
Part 4 provides for the establishment of a new committee to be known as the Registration of Deeds and Title Rules Committee. Section 44 provides that it shall perform the function assigned to it under section 26 of this Bill and under section 126 of the Registration of Title Act 1964. Subsection (2) contains provisions for the membership of the committee. It shall consist of a judge of the High Court assigned by the President of the High Court, who shall act a chair of the committee, the Registrar of Deeds, the Registrar of Titles, who shall act as secretary, a barrister nominated by the Bar Council and a solicitor nominated by the Law Society. Section 5 provides that the committee established under section 44 shall meet at least once a year and shall report to the Minister for Justice, Equality and Law Reform on matters falling within its remit.
I wish to inform the House that the Government has approved my proposals for a restructuring of the Registry of Deeds and the Land Registry. I intend to bring forward a series of amendments to the Bill on Committee Stage which will convert the Registry of Deeds and the Land Registry into a statutory body on the lines of the Courts Service. The new body will be known as the Property Registration Authority and will have a representative board, including representatives of conveyancing interests as well as consumer, staff and other relevant interests. I believe that this new structure will put the registries on a sound administrative footing and will underpin the modernisation process which is already well advanced in the registries. I am also mindful that these reforms will allow theregistries to take full advantage of the changes in the substantive law to which I referred earlier.
The reforms set out in the Bill will make the conveyancing of land easier and faster and will reduce delays associated with registration. I believe it is a necessary and important Bill. It is in line with the Government's intentions on regulatory reform as outlined in the White Paper, Regulating Better, and will, when enacted, contribute to economic activity at home and improved international competitiveness.
This is part of a three pronged approach to the reform of our land laws. The first is the material in the Bill before this house. The second is a new part which I will bring forward on Committee Stage in the near future. The effect of this part will be to combine these two bodies, one of which is 17th century and the other a 20th century successor to a 19th century body, into one 21st century semi-State body. That semi-State body will be a property registration authority. Its purpose will be to drive forward the process of registration of land on a modern, electronic and consumer-friendly basis.
It will be subtended by the third prong, that is, the radical revision of our law of property. In 1925 Lord Birkenhead, F. E. Smith, was the champion of the reform of the English law of property. The law of property after 1925 swept aside huge chunks of Victorian, Georgian and medieval legislation and replaced it with a single modern statute governing land law.
I am pleased to inform the House that the Law Reform Commission, assisted by Professor John Wylie and officials of my Department, has greatly progressed the project to set out in one statute the land law of Ireland. We will publish the heads of that statute in the relatively near future. That, combined with the programme which is already under way for electronic registration of documents and electronic mapping of properties which are the subject of registration, will transform, within a short period, the law of property here for practitioners from what is currently a familiar but cluttered slum to a modern edifice worthy of a country that wants to do business in the real world.
I welcome the Minister to the House. I also welcome the Bill. I thank the Minister for his comprehensive explanation of its contents and other legislation that will come before us in the relatively near future. I liked the Minister's overview and description of the old Registry of Deeds office and all that is contained therein.
It has become commonplace for people to criticise our land law because of its complexity but such criticism is entirely justified. Land law is frequently referred to as being draconian and that criticism is easily justified. The law that governs property rights dates back centuries, as the Minister stated. We did not need the Law Reform Commission to inform us that such law is archaic, outdated and needs to be changed. We have had Law Reform Commission reports but little has changed to date. I welcome this Bill as a first step in the process of change.
The complexity of property law is made even worse by the rituals that have grown up over the same period in any land transaction. Anyone who is fortunate enough to own his or her own home will know that, at the very best, it takes up to six weeks to go through the rituals and rigmarole of buying one's own home. In the modern age of technology where past transactions, old deeds and contracts can be available electronically, I cannot understand why people should be dragged through this process any longer. The Minister explained that in other jurisdictions the process involved takes only 14 or 15 days compared to six or seven weeks in this jurisdiction. We should aim for the process to be completed in that shorter timeframe. The Bill will help in that respect to some extent but we have a long way to go.
In the interests of the consumer we need to examine more closely the processes and checks that are said to be involved in conveyancing. Are all these checks and validations necessary? Are they being carried out? When an 80-year old house is changing hands, why does the chain of title need to be validated again and again? Do repetitive processes such as this in the conveyancing process serve any purpose? These are some of the issues I want to raise.
In this context, I am pleased the Minister has taken steps to simplify matters in this area. However, as he would agree, this Bill is only one small step. There is a large element of repeal and re-enactment in the Bill. It is not all new material. As the Minister has informed us, the Bill will pave the way for the storage of deeds and maps on a computer. That is welcome but why was the Bill not introduced some years ago? For example, when the e-commerce Bill was presented to us five years ago, why were these provisions not included as part of that Bill?
When it comes to moving forward with technological advances, why is the Government always so far behind? We made our Statute Book available electronically a few years after most countries had done so. While other countries have been using electronic tagging, the Minister is still wondering about whether the technology is right. As part of this Legislature, we need to stop being content with playing catch-up. We need to look ahead and bring forward legislation that will facilitate the greatest possible use of technology.
I would much prefer if today we were in a situation where e-conveyancing was the norm and that buying and selling a house was a far more simple and straightforward process. Even after the enactment of this Bill, we will still have two distinct and different systems of land registration — the Registry of Deeds on the one hand and the Land Registry on the other. If we are serious about simplifying conveyancing, we should have one uniform system. I am glad the Minister announced here this morning that one such uniform system, which is essential, will be included in this Bill.
However, it must be asked why has the Bill been introduced if it is proposed to make such a major change to it on Committee Stage? It is a major development to put in place a uniform system to bring these bodies together, which I welcome, but the Minister could have delayed the introduction of the Bill for a few weeks until all these amendments are ready. Alternatively, if they are ready, why were they not included? I agree with what the Minister and the Government are trying to do in this area but I do not agree with their ham-fisted approach to introduce another part to the Bill at a later Stage. I do not agree with legislation being introduced in that manner.
I listened with interest to Professor John Wylie — to whom the Minister referred — one of the foremost authorities on this subject at a recent meeting of an Oireachtas joint committee. He stated:
It is really absurd, when the State has been independent for ... 80 years, that we still have a ... land conveyancing which is based ... [on] old English feudal law. It is ridiculous in this day and age, when our lives are ruled more and more by computers that our conveyancing system is still based on the age of the quill pen and ink.
That is the manner in which the Minister described the office of the Registry of Deeds. I agree that those in the registry have done and continue to do excellent work but we must move forward with the times, as Professor Wylie recently explained to that committee.
If we are to make substantial progress in this area, there must be a strategy for getting all titles into the Land Registry. This has been done in England where a strategy was devised and now approximately 99% of the land-bank of England and Wales is on the register in the Land Registry. We should aim to do likewise here.
I take this opportunity to compliment the Law Reform Commission and the officials in the Minister's Department, to whom the Minister referred, who work on the area of land reform. It is of paramount importance that they are given whatever resources are necessary to speed up and modernise land law and conveyancing law.
The Bill provides for the replacement of all old legislation dealing with the Registry of Deeds dating back to 1707, or Queen Anne's time. It will put the Registry of Deeds on a sound footing. It also makes sense to make certain changes to the Registration of Title Act 1964 with a view to making e-conveyancing a reality.
I commend the Bill to the House and I look forward to the implementation of the changes envisaged in it. I hope we will receive at the earliest possible opportunity the other part to which the Minister referred so that we will have an opportunity to examine it, make a contribution and amend it, if possible.
I welcome the Minister and his officials to the House. I also welcome this important reforming and probably long overdue legislation. As the Minister outlined in his speech, much of the legislation dealing with deeds and land transfers is exceptionally arcane, if not archaic.
I wish to address the legislation, first, from the point of view of modern needs and, second, as someone with an interest in history, from the point of view of some of the more archaic aspects. It is obvious that we need an efficient and much less cumbersome form of registration. I recall taking this view when I first became an adviser in 1981. We were in Opposition at the time and I was taken to lunch with a couple of solicitors by my then party leader. I was perhaps foolish, green and naive enough to make this suggestion, which was not welcomed by the solicitor friends. My leader, in his inimitable fashion, shut me up promptly. The need for these nice little earners, so to speak, for the legal profession no longer exists — I notice Senator Tuffy giving me a slightly icy look.
Whatever about the situation in 1981, in light of the amount of business currently being transacted, one does not need archaic props to support the earnings of solicitors. Of course, if we want to be competitive in the modern world we must find far more efficient ways of dealing with issues. I look forward to the other pieces of the jigsaw such as the e-conveyancing which is promised. One of the drawbacks of the use of electronic means is that one must be able to draw down a permanent record at any time.
The Bill involves the consolidation of an authority that goes back to the reign of Queen Anne. This has a certain family interest for me in that during her reign, in 1704, an ancestor of mine bought out a lease from the Duke of Ormond. I am sure the deed exists somewhere. This history is fairly complicated in that one is talking about Acts of Settlement, penal laws, restrictions on transfer of land, church disestablishment, the Land Acts, the burning of the Custom House, ground rents and so on. These are complicated issues, some of which many of us will have brushed up against either in a suburban context dealing with ground rents or dealing with the transfer of land from one generation to another.
I will visit the King's Inns this evening for the launch of a book in connection with that infamous Chancellor Fitzgibbon. Whether he would have approved of what the Minister is doing is an open question. The Minister referred to galloping Smith and clearly we fell behind the posse in that regard. It is clear that in the Registry of Deeds there is a historical treasure trove in terms of social history. It is a bit like the present day Land Commission records which are not yet generally accessible.
As a result of the opening of the Bureau of Military History, I have just finished reading a marvellous book in which the Minister's grandfather is mentioned. It is entitled Witnesses: Inside the Easter Rising by Annie Ryan. These documents can be used to illuminate political and social history. As we move into the electronic age, it is important that these ancient deeds are properly preserved and made accessible. I accept it would be a long-term project to have these documents recorded in electronic form so that they can be more easily consulted. Social history prior to the French revolution is heavily based on the study of deeds. We are far from having fully explored all aspects of local land and regional history. Future generations of historians can do an immense amount of work in this regard.
Naturally the Minister and his officials are focused on the needs of a modern economy, and rightly so. However, I urge him to ensure that the heritage aspects are also properly looked after.
I wish to share my time with Senator Norris. I am pleased to see the Minister in the House. I welcome the Bill because it is a decisive step to take us into the 21st century. I received a telephone call this morning from an Irish friend who happens to be in Australia. He wanted to compliment me on the words I used in the Seanad debate last night. I was very impressed because, even though he lives inMelbourne, he had already read The Irish Times and the report of the Seanad debate. It is a reminder of how technology has changed and how we have not necessarily used it.
I welcome the Bill because it will make information much more accessible to citizens, particularly in regard to Government matters. On the face of it, keeping a land registry should be as simple as it is necessary. Given the importance of property and land in this country, this is something which has been made very difficult over the years, which is understandable. It has been difficult because it is paper based. Being able to move from a paper-based system to a new system is ideal.
When I was 17 or 18 years of age my parents moved house and my father decided that I should own the house because I could get a lower mortgage rate than he could. When my parents died in the 1970s — I had never lived in the house — I sold the house. However, when the house was resold a couple of years ago, the new purchasers discovered that I had not obtained my wife's permission to sell the house. It was a house in which we never lived ourselves.
Senator Mansergh referred to costly lawyers. It seems to be very difficult to transfer property unless one uses technology or very expensive methods. On that basis, what the Minister has done and what he is promising to do on Committee Stage will make the conveyancing of property much less expensive, as long as we are able to negotiate with the lawyers and others who have made the process so expensive.
When preparing a few words on this subject, I noted that changing or buying a house should be no more difficult than buying a packet of cornflakes in a supermarket. Then I recalled a prototype supermarket, the Metro store, which I visited in Germany last week. My trip demonstrated what modern technology can do in a new supermarket. The supermarket has radio-frequency identification, RFID, whereby one can go to the checkout with €100 worth of goods and have their barcodes read in one second by radio technology. If one has already registered oneself as a customer of the store, one does not have to pay in the store. Retina identification is used to identify registered customers and the cost is immediately charged to their bank accounts. This sort of technology excites me.
I mention the use of this technology because it contrasts with the way in which we used to buy our groceries 50 years ago, of which our methods of conveyancing property and land registration are the equivalents.
It was interesting to hear the Minister and Senator Mansergh refer to the interesting historical records that exist. They should be part of our history but should not be used in a modern era. Thanks to computerisation, we are now freed of the costly shackles that characterised the system. We can now begin to buy and sell property in a common sense way that reflects the underlying simplicity of the transactions involved. We should all heartily welcome the computerisation of the Land Registry and wish it God speed. It will bring about a change to the manner in which we do business.
I regard the computerisation of the registry not just as one step but as one more step in the simplification and democratisation of the administration of this country. A modern country such as ours runs very much on information. Information is the very lifeblood of what we must do if we are to have a sophisticated civilisation. The manner in which we deal with information not only determines the efficiency of our system but also the extent to which it genuinely belongs to the citizens. Anything we can do to make information more readily available will bring citizens closer to Government.
We now have available to us the technology to ensure that people can connect instantly with information that concerns them, particularly personal information. The idea that people should have to queue for hours to obtain their birth or marriage certificates is nothing short of ludicrous in this age. When future generations look back at how we did things, they will question how we lived as we did, just as our children question how we lived in the past.
The purpose of one of the projects involved in the European Union's Lisbon Agenda is to spread the practice of e-democracy or e-governance much more widely throughout Europe. This was seen as a matter of competition with the rest of the world. However, it is even more important than this because e-governance has the potential to bridge the ever-widening gap that yawns between the State and its citizens, something we all deplore. Anything we can do to remove it is good. We should welcome and encourage measures in this regard as much as we can.
This Bill is just one part of a jigsaw that is enabling us to bring citizens much closer to governance, to what we do in the Houses and to the State, of which they might otherwise be fearful. One challenge presents itself, namely, that of privacy. People are concerned about "Big Brother". If information is so readily available, we must find a way to ensure we can put our minds and those of the citizens at rest.
I welcome the Bill and the steps the Minister is taking. I welcome even more his attitude, as indicated by his promise to table certain amendments on Committee Stage.
I thank Senator Quinn for making time available to me and I welcome the Minister to the House. The Minister is a very impressive performer in the House and we all appreciate his coming in person rather than sending a Minister of State. He has dealt with this matter in a very clear, forensic, detailed way that illuminates many of the issues we are confronting.
I concur with the Minister's view on the removal of so much ancient and redundant statute law and his contention that this Bill is a significant contribution to the process of regulatory reform. The Government has committed itself to this. We have considered several Bills in respect of which the Minister took exactly the same approach, one of which we dealt with in recent weeks. We had some fun looking at the out-of-date material. It is right to get rid of this dead wood and make our system more efficient. The Minister put the aforementioned process in a global economic context. Even though we have quite a high standing in terms of efficiency — I believe we are 15th on the list — we are behind many other European countries in terms of the number of procedures required and the number of days it takes to process the material in question.
The Minister indicated there will be Government amendments. This suggests that the Bill is open to amendment and therefore I will suggest one to improve efficiency and reduce the duplication that is involved in the legal process when searching for or confirming titles. This was touched on by Senator Cummins and perhaps by Senator Mansergh, but not in the detailed way I would like. I and probably every Member in the House have been through this legal process and it seems mad that one must pay to engage in it. Dusty deeds are taken out and the chain of succession is traced right back to the original owner of the property in question. All the information is examined and certified, after which the sale can proceed. However, if one wants to remortgage one's property, as I did, the same firm of solicitors may be asked to go through exactly the same rigmarole for a second time. Given that they have done so already and have been paid to do so, why should one have to pay a second time for a completely redundant exercise in nonsensical duplication?
As far as I am aware, this matter is not addressed in the Bill. Sections refer to what is termed the "manner of searches". I wonder if the Minister believes it appropriate to table an amendment or accept one by me to ensure that searches would be carried out only once? When the Minister has very appropriately centralised the system in a new statutory body, it should be sufficient for a search to be completed once. Thus, there would be centralised registration and the relevant file would be stamped. If one wanted to remortgage, the registry staff would be able to say the necessary work has already been done. What on earth is the point in carrying out exactly the same search twice? It is to make money easily for firms of solicitors. Paying twice is not fair and should be addressed in the Bill. I hope this will be done because it would save decent people, who make the largest investment of their lives when purchasing a house, from having to accept extra and unnecessary charges. I ask the Minister to consider this.
It is always interesting to hear the history of a Bill. The Minister has a habit, which I find delightful, of introducing a little antique information that gives us a sense of period.
We are getting rid of a whole series of legislation spanning the reigns of Queen Anne, King William, the Georges, Queen Victoria and so on. The Minister mentioned the statute of 1707. I once considered tabling an amendment to abolish this statute. I could not imagine anybody opposing the abolition of a statute designed to stop"papists"— note the offensive language — from using their Protestant neighbours as a shelter for keeping land, when Roman Catholic citizens were not permitted to hold land or buildings above a certain value. That was a shameful, disgraceful and disgusting statute. It is wonderful, however, to see the human context behind the legislation, from which it is evident that decent Protestant people were prepared to act as surrogates to protect the landholdings of their Catholic neighbours. While there were many instances of such neighbourliness, sadly there were also Protestants who would pose as good neighbours and then grab the land.
The novels of William Carleton record such cases. His work is largely forgotten now, butValentine McClutchy and Fardorougha the Miser are replete with this type of legal chicanery. The statute shows, on the one hand, a heartwarming neighbourliness even in 1707 that a mean-spirited government tried to counteract. On the other hand, there were awful situations in which people grabbed their neighbours' land.
A final matter which may not be capable of being addressed is the question of so-called squatter's rights whereby people acquire title by lodging themselves on land. I can cite an example of this in my own family. An elderly Hungarian connection of mine came to live in County Wicklow. Her husband, my relative, was killed in a tragic accident leaving her traumatised. She had already been traumatised when her family lost a great deal on the collapse of the dual monarchy inAustria-Hungary, an event followed by the Nazi invasion and, worst of all for her, the communist invasion. She became an eccentric recluse and was made a ward of court because she was deemed incapable of controlling her money.
Some neighbours began to encroach on her property and other good neighbours told me about this. There was a hearing in the local court to determine title. Although at this stage the lady would have nothing to do with me, I wrote to the court setting out her position and asking that the court protect her rights. Instead, the court appeared to award title to an encroaching neighbour. That is wrong.
People in that situation should have their rights. I tried, as a connection of some kind, to protect her rights even though I did not have her authority to do so — we subsequently became close again. It is not right that vulnerable people should be subject to this kind of squatter's right and encroachment. I hope something may be done to remedy this problem.
My principal point, with which there is general agreement, is to press for a system that would eliminate the nonsense of going through searches a dozen times. Let it be done once, stamped and centrally registered so one can find it on the Internet and see the searches have been made. That would be an important element of this Bill or perhaps of other legislation — the Minister might inform the House whether that is the case. Such a system would make the registration of title more efficient.
I welcome the Minister to the House. Senator Norris referred to incidents in novels but if he reads the life of Edmund Burke he will see the same events happened frequently in real life at that time. The lesson of this history is that the religion of the land is superior to the denomination to which a person belongs. Maybe this trait is still evident in Irish society. In Burke's time it was convenient to change religion to keep title.
I echo Senator Mansergh's points about the arcane and archaic nature of many of the procedures associated with land transfer and tenure. I share his sneaking suspicion that some of these devices have continued in perpetuity to the advantage of people in lawyers' offices rather than to the advantage of their clients.
This Bill is important and welcome. Almost everybody is at some stage involved either in a land transfer or in raising a loan against land or property. Loans have often been jeopardised by the time it took to register the interests of the bank or the lender on the deed. That has, however, sometimes acted to the advantage of the person borrowing the money, when the bank subsequently sought its security and found it was defective. I know of one particular instance where that was the case.
Legislation needs to reflect the technology available to us. I am glad to see that development included in this Bill. When I entered the House in 1989 there were frequent complaints about the length of time it took to produce the Official Report. Now we can log onto our computers shortly after the debate and find the record there, which is a compliment to the Editor of Debates and her staff. That is an example of the speed with which work can be done.
It is important to have the latest e-conveyancing and e-government systems available and properly used. There must, however, be a paper backup. There has been much discussion about that matter in regard to electronic voting. In this case the hard copy must exist to support the information on the hard disk in the computer because we all know what can happen to computers.
The delay in identifying title to property has a bearing on infrastructural development. In building any long stretch of motorway, or the Luas line, there must be several properties without proper title. For example, establishing the title of a rural cottage handed down three or four generations by verbal agreement, poses extraordinary difficulty for the descendant who wants to sell the property when it has acquired significant value. While it is proper that it should be difficult to establish title, there is a need for a more orderly system.
I was somewhat surprised, given the common tradition in the two countries, to hear the Minister say it takes five procedures to establish title in Ireland whereas it takes only two in the United Kingdom. It takes 21 days to register property in the United Kingdom and 38 days here, almost twice the time. The Minister explained this anomaly by referring to legislation introduced in the United Kingdom.
The Land Acts of the 19th century, including the Gladstone Act, and the progressive Acts introduced by early Irish Governments performed the extraordinary task of transferring the title of numerous properties to the lessees and giving them freehold. The Griffith Valuation was another example of effective legislation at a time when people wielded quills but evaluated the land in a short period.
The Minister mentioned the lack of provision for dealing with errors in the Registry of Deeds, where that error originated in the Land Registry. I had an experience with the sale of agricultural land in the 1970s. When we received the certified copy of the Land Registry map the piece of land for sale was not that identified on the map. It was across the road. I was not aware of the import of that until my solicitor pointed out to me that it would almost require an Act to rectify the situation if an error had not been made. He did not know of an error having been made, although one had in fact been made by the Land Registry. It turned out to be all right but it was a salutary experience, particularly as the Central Bank intervened with credit guidelines on the price of the land. Between the date of the sale and the date of the closing, the price virtually halved. That concentrated the mind wonderfully on some of the issues that we are discussing.
The most important thing the Minister said was at the end of his speech, when he mentioned the creation of the Property Registration Authority. It is sensible for the Registry of Deeds and the Land Registry to be made into one statutory body. I very much welcome that and I look forward to seeing more detail.
I wish to read from a letter that I received from a solicitor in the south east. The issue to which it relates is more concerned with the stamp duty offices rather than the registration of deeds, but it flows from that. It states:
I am writing to you about the severe penalties being imposed by the Stamps Office in connection with the 'late' stamping of Deeds.
On the 27th September we sent off a Deed dated 30th July together with a cheque for €4,950 for stamping. Technically speaking Deeds should be lodged within one month of execution. You will see that the Revenue now impose a penalty of €610, almost 12% of the total amount of Stamp Duty. Because there can be a hold up in getting signatures etc., I feel that short delays do not merit such heavy financial penalties. The State or its Agencies are not that efficient in matters themselves, and they do not incur penalties for lengthy delays, not to mention slight delays of a month or so.
Is there anything that can be done about this practice, as it is manifestly unjust and all the more so, in view of the huge amounts of Stamp Duty that are being paid in transactions at the moment?
The Government is continually complaining about the prevalent 'rip off culture' but when you see Revenue imposing charges at this level it is clear that greed now contaminates the State as well.
Something should be done about this and reasonable rates should be imposed.
Perhaps somebody in some relevant quarter might address that issue and investigate how it might be rectified. It appears on the face of it that those penalties are extremely severe.
Having said that, I very much welcome the Bill, which is long overdue. It will make a significant improvement in how property is conveyed and title is established. I hope adequate staffing and resources will be available to do all the work. That is a central issue.
The only thing left to do after all this will be to regulate the auctioneers. That will be the final piece of the jigsaw. The Minister has proposals in that regard.
On the last point raised by Senator Dardis, as a solicitor who dealt largely in conveyancing, it is one of my bugbears that while auctioneers make much more money out of conveyancing than solicitors, they do not take on the same level of responsibility, liability and so on. For example, they do not have to certify title. Many people complain about solicitors' costs, but the same people do not often complain about their auctioneers' fees, which might be triple or more than triple those of——
I am a solicitor and I have a vested interest in this, but I do not agree with the suggestion that solicitors would like the legislation to be delayed or that the type of conveyancing practice employed in the past has been in their favour. It is only the legislators who can delay the enactment of legislation. It is up to us to put the system right, not the people who work within it.
Solicitors make a considerable amount of money out of conveyancing, and they have done particularly well over the past few years because of the success of the property market, which lies in the amount of houses that have been built or changed hands and in the increases in property prices. However, for solicitors to be really successful as business people, they need to get as many conveyances and other transactions through their offices as quickly as possible. Therefore, it is more in solicitors' interests to have a streamlined system for the registration of title.
I very much welcome the legislation, but it does not go far enough. I do not mean to be critical, but it needs to be built on. I will be interested to see the Government amendments. It would be more satisfactory if we knew now what they will entail, as we will not have much time to consider them before we debate them in the House. I welcome any improvement to the legislation that the Minister proposes and we will also be considering our own suggestions.
When looking recently at the Land Registry website I was reminded that the registry was set up in 1892. Since then there has been many legislative measures dealing with the registration of title, but we have not got very far, particularly when it comes to the compulsory registration of title. Compulsory provision was required for three counties, and it has been in place in them for a long time. It was intended that this would be built on and extended but that has not happened. The legislation does not address that but the matter should be given priority.
The Registry of Deeds system is not a satisfactory way of managing the registration of title. We know that only the document is registered. It is not confirmed that a person has the title to the property, unlike the registration of title system. It should be our ultimate aim to rectify that. The Law Reform Commission recommends the legislation and effectively welcomes the steps taken by the Minister, but it has suggested that we ultimately need to make the Registry of Deeds system redundant. We have a long way to go in that regard.
I will turn to how the legislation deals with the Land Registry. The Law Reform Commission has issued a consultation paper on conveyancing. At page 28, it recommends that what is termed a"tidying-up measure" needs to be taken. In fact, a great deal needs to be done to improve the system. There are gaps, and the legislation contains less detail than it might about procedures, which are governed more by rules. Section 26 of the Bill provides that the rules "may" be published by the relevant committee, but I would have thought they would have to be published. A transitional arrangement is to be put in place, whereby the present rules apply until the new rules are drawn up. Those rules should be given priority, and I hope that they will be comprehensive in improving the conveyancing system.
Like many solicitors, I find the staff who work at the Registry of Deeds very helpful, and the building is a nice place to visit, with a nice atmosphere. However, the procedure of registering deeds is still cumbersome and the building is inaccessible. People might have trouble if something has gone wrong. That makes the process even more cumbersome. As Senator Norris said, the whole procedure of conveyancing using the Registry of Deeds system, as opposed to the Land Registry system, is cumbersome and unsatisfactory. All the deeds need to be gone through for each transaction, there is much more scope for error, the process is more time consuming and searches take longer and are more costly. We need to move more towards the Land Registry and the registration of title system.
We can also make improvements to the procedures for the Registry of Deeds. One of the Law Reform Commission's recommendations that should be prioritised when the rules are drawn up is set out on page 163 of the booklet to which I have referred.
It suggests having a statutory form of the necessary information for registration purposes, which could comprise the first page of deeds. It further suggests that the complications over executions of memorials and witnessing should be removed so that simplifications recommended for execution of deeds should also apply to memorials. These suggestions should receive priority in any new rules.
The Land Registry has come a long way in making its forms more accessible and user-friendly. Senator Quinn said that land registration had become like other transactions but I do not think that matters have progressed that far. One is limited in what one can do electronically with regard to the Land Registry. However, it has put much work into its very good website. One can fill out form 17 online and get one's dealing number to send to the registry with one's deeds. Such measures are helpful. The website recently won the best central e-government category in the Irish e-government awards, which was well-deserved.
I have not been working very long as a solicitor and my work is now very limited. I am mainly winding up matters and finishing registration. However, the Land Registry offices are a much nicer place to visit than in the past in that there are fewer queues and the staff can better deal with people. The way in which form 17 is presented means that one only needs to tick the boxes and it is very difficult to make a mistake. The Land Registry's corporate image has also improved.
However, there is still much to be done. One must still physically send title deeds to the Land Registry. One can do so by post although I prefer to go into the office because then I know it will arrive on the day and I can get a dealing number there and then. We must aim for the type of scenario envisaged by Senator Quinn. Ultimately one should be able to transfer property and send one's deed to the Land Registry electronically.
The investment the Minister has made with regard to digital mapping is very welcome. Currently, it takes a long time to get transactions registered and there are often delays in terms of mapping. Hopefully the digital mapping initiative will improve matters. South Dublin County Council made its services available electronically although this initially seemed difficult. It put its entire planning application system on-line so that one can look up every plan, map and specification. The council achieved this within a very short period of time. It was not available when I became a councillor in 1999 but now everything is on-line. Before this, one had to go to the planning counter in South Dublin County Council in order to get maps, the office was only open during certain hours and the whole process took time. The service is now available on the Internet. This type of initiative is needed with regard to the Land Registry in that one should be able to do everything on-line. It would improve our system of conveyancing and put an end to complaints regarding delays and searches and so forth.
The main gap in the legislation relates to the encouragement of first registration. As a solicitor I got the hang of doing such registrations and carried out a number of them. Whenever I receive registration of deeds and title I always look to see whether it is possible to register it with the Land Registry. I do my best because it makes it easier for the next solicitor and I get a certain satisfaction from the job. I do not necessarily gain from doing this, but the next solicitor does. I like the idea that the title is tidied up, registered with the Land Registry and is very clear and certain.
Other solicitors find the system of first registration very daunting and therefore do not use it. They will go to the Registry of Deeds instead, even though first registration is cheaper. The Land Registry could take measures in this regard. Searches can be daunting and if one gets them wrong, one must start all over again. Verified searches are also required which are not required for other transactions and are costly and cumbersome. The Land Registry must examine what it requires with regard to first registration. It could intervene in terms of the required searches to make it easier for solicitors. Why does it need verified searches? Surely, the Land Registry could check them rather than requiring the solicitor to get a verified search. Staff should be designated to promote the first registration system and assist people in getting through it. This will help increase the number of titles registered.
The compulsory registration system should be extended, and we will probably suggest this as an amendment. I have my doubts in that it might be too much to ask that all land in the State be compulsorily registered. Forcing the issue will make people register but will require the help of solicitors. The Registry of Deeds and the Land Registry should also consider free first registration.
The Land Registry system is more expensive than the Registry of Deeds system. If they integrate, the two bodies should consider balancing their fees to make it more attractive to register with the Land Registry.
I query the change with regard to church lands which allows them to be non-compliant with compulsory registration. I realise there are good reasons for this provision which was recommended by the Law Reform Commission. However, this is a move backwards and is not generally desirable.
Senator Dardis spoke of time limits with regard to the stamping of deeds and the penalties incurred if the deed is not stamped within a month. Solicitors will probably not want me to agree with this. One month is probably too short a period within which to stamp a deed. However, we must look at the issue of time limits with regard to land registration. There should be a time limit, and I am as much at fault as any other solicitor in terms of delays in registering. It would be good to have a requirement to register within a certain time. The period should be a couple of years instead of a couple of months. As it stands, some titles are not registered for ten years or more. Some are not registered at all until someone discovers the fact. A time limit should be considered but it should be a reasonable one.
Cuirim fáilte roimh an Aire go dtí an Teach inniu chun an Bille seo a phlé. This simple Bill has generated much discussion and debate in the House, which is indicative of the important role land has played in the history of our country. Listening to Senator Norris I was reminded of my younger days and my grandparents complaining about their family being dispossessed during the Famine to make way for a Protestant family. The angst was as strong 120 years after it happened.
I can see how such situations can give rise to many complaints. People were very poor then and, to a great extent, land determined their social status. It is understandable that this attachment to land and property is inherent in all of us. I welcome the Bill and am aware that the Minister has introduced this legislation so that we can move away from some of the archaic provisions currently in place and move into the electronic age. As the leading exporter of software in the world, it behoves us to be at the cutting edge of the implementation of technological developments. This is certainly such an area.
The registration of deeds and registration of title systems are interesting. The Land Registry is the simpler way to register land and also implies ownership whereas registration of deeds does not do so in the same fashion. The process requires simplification but in so doing — I echo Senator Mansergh's comments, endorsed by Senator Quinn — it is important to preserve the heritage information contained in these systems. I have examined deeds from time to time and the amount of local history that can be gleaned from the records of ownership, going back several hundred years, is amazing . While this is not the primary function of the thrust towards electronic mapping and conveyancing, it is a strong secondary priority that people could access, perhaps through the Internet, the historical evidence that resides in the deeds. This could usefully be examined.
I am also impressed that the Minister has outlined the results of a survey carried out by the World Bank to the House, which shows Ireland to be in 15th place using its criteria. Registration takes 38 days here as against the best practice in Europe, which I believe to be in the Netherlands, where it takes five days. It is important that in all aspects of public services, we perform benchmarks against best international practice. We should aim to achieve that. Over recent days, the merits and demerits of benchmarking have been debated. Benchmarking exercises should be carried out on performance, but unfortunately, we perform benchmarks on positions and levels of responsibility. If we carried out benchmarks based on performance, it could be an appropriate method to reward people. If one reaches a certain level on a league table or some other indicator, bonuses and benefits would accrue. This is how the private sector operates. I welcome the Minister's proposal to bring forward amendments to restructure the Registry of Deeds and the Land Registry into a statutory body which will operate along the lines of the Courts Service. This is a move in the right direction.
I hope the property registration authority mentioned in the Minister's speech will in fact be referred to as an t-údarás cláracháin mhaoine, the Irish version. Terms such as An Bord Pleanála and Údarás na Gaeltachta are commonly used in everyday language. This encourages a familiarity with the Irish language and hopefully encourages people to use whatever Irish they have in everyday speech. Interestingly, one of the commitments in the Good Friday Agreement is to the Irish language as well as to Ulster Scots. There is a real need to keep the Irish language alive.
The Minister's speech referred to a review of the conveyancing laws, which is long overdue. The statutes that underpin them date back to approximately 1925. The existing conveyancing procedures definitely require modernisation and simplification. We have a pyramid system of ownership in operation. Senator Norris referred to personal occupation, after which one progresses to the tenant, the lessee, the owner of the leasehold and the freeholder. There are myriad forms of ownership. In New Ross and other towns, historic estates exist which go back to the 15th, 16th or 17th centuries and consequently, land registration is problematic. New Ross is a prime example where we have the Tottenham estate which, because of the different forms of ownership, is an inhibition on development. The estate itself has title and is entitled to recompense for it. However, one has situations where people who pay ground rent and sometimes leasehold rent invest enormous amounts in improving the properties. Subsequently they find that if they seek to buy the freehold, if that option is available, it is at a valuation reflecting the major investment they made in the property. This issue should be examined as it is a blight on urban renewal in many of our provincial towns because of the difficulties it imposes. It applies to both the residential and commercial sectors but in particular to the commercial sector which might have invested large amounts of money over the years.
The registry of deeds does not imply ownership. Perhaps that system should be examined. I hope the new property registration authority will attempt to establish how there could be some form of title certification within that procedure. Interestingly, I understand that in counties Carlow, Laois and Meath, there has been compulsory registration since 1969, whereby one is obliged to go to the Land Registry within six months. Why does that not apply to the rest of the country? I understand that similar obligations exist for the State and local authorities. This measure would be beneficial because it would tidy up the question of titles for people dealing with properties. Once a title is tidied, the process becomes very simple thereafter.
As the Minister noted, the process requires simplification for economic reasons and to improve its fairness. I welcome this Bill which is a good first step in the right direction. I look forward to the Minister introducing further legislation in the House which will deal with the more substantive issue of conveyancing reform.
I welcome the Minister to the House and I also welcome this important Bill. I wish to raise the question of the level of involvement of lawyers in the process. I have examined the positions which have evolved in other European countries. Under the French system, the registration or transfer or conveyancing is performed by one particular solicitor. The notaire is usually appointed by the State and is required to ensure that the vendor is the owner of the property, that the property is compliant with the appropriate planning legislation and that there are no encumbrances or title demands on it by virtue of previous relationships such as marriage, divorce or children. The notaire establishes these facts as far as the vendor is concerned. The notaire also establishes that the person buying the property, who is to become the new registered owner, is in a position to do so. If a mortgage is involved, the notaire establishes whether the person has received a mortgage or has the wherewithal to buy it. After assessing all these questions, the notaire then brings notice of the intending sale, transfer or conveyancing to the attention of the appropriate local authority. One solicitor effectively acts as an honest broker and represents the state in the sense of ensuring that the transaction is carried out appropriately; that in all situations the people involved in the transaction are the ones who are entitled to be involved in it and that the transaction complies in every way with planning laws and any other legislation. The notaire is also responsible for bringing the fact that the transaction has taken place to the attention of the appropriate taxation and other state authorities.
The French system is a very appropriate way of dealing with property transactions. It does not prevent either party to the transaction from also engaging his or her own solicitor but the notaire system means that he or she is not required to engage a solicitor and the state has oversight over the transaction and ensures that it happens correctly. Introducing the same system in Ireland would dramatically reduce the inconveniences of transactions.
Under the French system there are also time limits on all these matters. For example, before registration, a pre-agreement and an agreement must be reached and there is a cooling off period after the initial agreement to engage in the transaction, which I think must be confirmed 11 or 15 days later and cannot be agreed before this period. The legalities of the conveyancing must be concluded within nine weeks of the second date. That introduces an element of certainty into the process. People always worry about such matters as whether the conveyancing has taken place or whether the deeds are lying around in the solicitor's office.
I do not know if it is appropriate to mention this matter with regard to this debate but some European countries have a maximum amount as regards the cost of a sale. The total cost of State tax, land tax or stamp duty plus the cost of agents and legal fees cannot exceed a certain percentage of the price. In some countries, the figure is approximately 9%. Again, this provision brings an element of certainty and security to those involved in the transaction and is a welcome element. These issues should be taken on board and perhaps spelled out in more detail.
The Taoiseach made a comment in the Dáil approximately 18 months ago when the cost of houses, land and development land and the difficulty of getting access to development were being discussed. He stated that he believed that the vast bulk of potential development land around Dublin was owned by a small number of people; I think he mentioned a figure of eight or nine. I was stunned by his statement and it confirmed what many people had been saying. I met him privately later on and asked him how he came by that figure. He said that the information he had led him to that conclusion.
The problem to which the Taoiseach referred is one encountered by many of us when we try to address this issue. It also emerged during the various tribunals. Whereas land registration must take place legally, the question of options over the purchase of land is not recorded or registered anywhere. I have only skimmed through the Bill but I do not think this aspect is covered. The sale of options on the purchase of land should be recorded. The lack of data on the sale of options over the purchase of land is the reason why a number of shady developers have purchased options on the purchase of land in many parts of the country. I know of people who have sold options over the purchase of their land, yet there is no record of it.
Similarly, people sign legal agreements to transfer, sell or change the ownership of property registered under one person's name while that person simultaneously signs another document agreeing to transfer that land at a future time to another named person whose name does not appear on any titles anywhere. This is why tracing ownership became so difficult in some of the tribunals. The question of options and agreement on land sale should be recorded, perhaps through a solicitor or agency. We need to address this issue some time in the future.
Apart from that, I welcome the Bill, which considerably loosens up things and should be welcomed by people on all sides. I ask the Minister to consider some of the points I have raised.
This Bill is very important legislation and is particularly important with regard to the decentralisation of the Land Registry and the relocation of 230 staff to Roscommon. The Minister should ensure that this relocation takes places as quickly as possible. The relocation of such a prestigious office and so many jobs will be a major boost to a town the size of Roscommon. The possibility of moving a semi-State body to Roscommon was mooted at one point but I understand a similar structure has been proposed for this organisation.
The relocation of the Land Registry is very welcome, particularly in light of the announcement today that 50 jobs will be lost at a local factory, Hannons Poultry Exports. When a blow, such as that which hit Dungarvan, hits a small town, it has a major effect and that is why the State has an important role to play in expediting the decentralisation process which will give a boost to Roscommon. Decentralisation will also create a spin-off for the Land Registry because, as Senator Tuffy is aware, a considerable number of agents in Dublin act for rural legal firms. They use the Land Registry to search titles and provide information to local legal firms. Decentralisation will create a major spin-off for small companies in Roscommon who will work for companies in Dublin and elsewhere.
The Land Registry is an extremely important part of the State. It was first established in 1707 and my experience of dealing with it since the 1970s, as both a professional and a public representative, has been very positive. It is highly efficient, effective and thorough. There is no point in speeding up a process yet overlooking the fact that someone has a legal right to a property. It is a very detailed but very important process because property is so valuable. A case I am dealing with involves a woman who bought a house from her brother-in-law who was not registered with the Land Registry. In addition, the people from whom her brother-in-law bought the property were not registered and nor were the people from whom they bought it. The whole chain of unregistered ownership went back to 1934. Now, the woman is eager to get this issue resolved. However, she must ascertain whether all the people who benefited from that land still have a claim on it. It is a very detailed process and people do not understand how important it is.
In other recent cases I dealt with, I found the Registrar of Titles to be most helpful. I would get in touch with the Land Registry on behalf of constituents where land would be transferred, for example, in respect of installation grants. In this case, the farmer can take up farming and must get full ownership of the property. The Cathaoirleach will appreciate the benefit of having this done properly. I wish to put on record that, as Senator Tuffy mentioned, the office staff are helpful, co-operative and fast. If one goes into an office, one can get a map quickly and the courteous and helpful staff will assist with the identification of the property. The office is an open plan, not a box in a corner of the room, and is a client-based service. When the new facilities are provided, it will be important to have similar facilities in Roscommon.
I am delighted the Minister is here as he has a good grasp of the legal needs of his Department. An issue I intended to raise previously with the Minister is that the State does not have a register of wills. This is a significant disadvantage for many people. Wills are made in a local solicitor's firm and registered with them but they are under no obligation as far as I am aware. The Minister and other solicitors would be more familiar with this than I. A person may change his or her will with another firm in Dublin, for example, and the beneficiaries of the final will may never find out their entitlements. This Bill may not be the relevant one to incorporate this and I do not wish to delay it but I suggest that the Registry of Deeds should incorporate a separate register of wills. If it were a legal requirement that every solicitor register their clients' wills in this section of the Land Registry, it would be financially beneficial. Many people have been deprived of their rightful inheritances through the possible negligence of a solicitor. Many solicitors have died and their documents are lodged in the bowels of their offices gathering dust, and no one examines them.
There is no better person than the Minister to deal with this issue because it has a financial benefit for the State. People would be prepared to pay for this registration. Furthermore, as AIB has decided not to hold documents in trust any more, these can now be registered properly. In the event of a will, people would know to go to the register of wills and determine where they stand. Will the Minister consider my proposal? I did not have an opportunity to raise this matter over the years but I often thought about it upon meeting people who did or did not inherit properly or who went from one town to another searching solicitors' offices to determine where their fathers or mothers made their final wills. Another member of the family could be searching somewhere else and whoever finds the final will, if it is the final will, is the person who will benefit.
On the matter of squatters' rights and titles, this is a questionable way of acquiring a title. An Irish citizen who had set up camp and was resident in a valuable property in London for 20 years recently waived these rights. Is it appropriate that rights can be acquired in this manner? People have leased or rented properties for 11 months over the years, did not pay for the 11 months and continued living in the property from year to year without anyone objecting but this is an unfair and improper way of acquiring property rights. As someone who acquired a small piece of land when he was 19 years of age, my solicitor was helpful and allowed me to sign for it despite the requirement that one be 21 at the time. I will not go into this now but I have a legitimate title to this small piece of ground.
For some solicitors who cannot find someone mentioned in a will, it is easier to "bump them off". For example, if people went to America in 1945 and cannot be traced, the easiest way to deal with them is to try to produce their death certificates to ensure the title can be secured. Such events occur and I am sure the Minister has experience of all types of shenanigans from his time as a senior counsel.
I thank the Minister for introducing this important legislation. Property is very valuable now. The question of church property is also important because it is no longer exempt. Many old church properties, in particular those of the Church of Ireland with their small cemeteries, have been left without real ownership. The proper registration and acquisition of titles by local authorities is important. I am anxious to have the Land Registry transferred to Roscommon town and know the Minister is using his good offices in this respect. Being a resident of County Roscommon, he would benefit from possibly having a ministerial office in Roscommon town; this would be one means of counties Roscommon and Leitrim getting a Ministry.
I am taken by the last proposal. If I can write off my house, it would be useful. I was also taken by Senator Leyden's comments about wills. That one can effectively revoke one document with another while the whereabouts of the revoking document is a complete mystery is an extraordinary system. Wills must be registered in some countries but there are implications to registration, such as the privacy of the testator. If, during the lifetime of someone who has made a will in favour of a nephew, a new will is discovered by the nephew upon consulting a register in Dublin, all hell can break loose among the legatees under the first will.
Senator Leyden did remind me of a time when a now deceased senior counsel who was prone to grandiloquent language put it to a witness in a will case that he was trying to establish the testator was beyond making wills and was perhaps a bit "gaga". He suggested to the elderly relative that the testator was in the habit of soliloquising, a terminology the relative did not follow. The counsel suggested the testator was in the habit of speaking to himself when no one else was present. The witness looked at him for a time and said "to be honest with you, sir, I was never there when he was alone". Such events can occur in these circumstances.
I will return to two particular aspects of the Bill's text. Senator Norris rightly raised the point of multiple searches. When one sees the pile of documents that accumulates through these searches, it is clearly ridiculous that they cannot be cumulative. One must search against the person from whom one is purchasing back to the point when one assumes the last authoritative search was undertaken. Searching on a continual basis seems unnecessary. This is not the time to deal with searches, as the heads of the relevant Bill will be published in July. When a search is carried out, it should be capable of being authenticated and be the end of the matter.
Senator Tuffy and others made a point that is equally true. We should be moving away from the deeds and searches regime towards a title and land certificate.
However, it is one thing to say it, but another thing to do it. It is the case that most modern developments of new housing are on registered land. It is also the case that State authorities opt for registration. The new Property Registration Authority will have to address this issue. One of the roles of the authority will be to set out a strategy to implement registration of title. I have always lived in houses built on unregistered land, with the exception of my house in Roscommon, which has its own problems ——
As someone who has always lived on unregistered land, however, it amazes me that we have such a complex system of proving title.
I agree with another point in Senator Tuffy's contribution concerning lawyers. It is not in the interest of any lawyer that the land law should be so complex. There may be a few nerds in the legal profession who like this kind of work. However, the great majority of people whose time is valuable do not like going back through deeds in an attempt to ascertain who the relevant parties were and whether there is good title shown.
I have spoken to members of the legal profession in the past who were worried that personal injuries claims work would dry up. I have never seen a prosperous society with poor lawyers and I have reiterated the point that things move on and change. It is not the end of the world if a particular line of business dries up because other lines will always open up for lawyers who are inventive enough to change their practices.
I take note of the point made by Senators Tuffy and Dardis regarding the penalties for late registration of stampable deeds. However, in that context the point must be made that until relatively recently it was not necessary to stamp a document unless it was proposed to produce it in evidence or it required someone else to accept it as good title. It was quite possible in the past to convey property and consign the documentation to the bottom drawer. It is only in relatively recent times that the obligation to stamp a document contemporaneously came into its own and penalties were attached to the failure to do so. It is a major source of income for the Department of Finance and the Exchequer.
It might be argued that the rates and penalties are tough, but the requirement that those involved in property transactions must deal with the matter in good time has greatly improved the flow of money to the State. Previously, where cashflow was difficult in the context of a transaction, the last body to hear about it was the Exchequer. Now the opposite is the case and the clock is ticking from the moment the deed is signed. I am not sure whether one month or two months is the most appropriate period of time, but I know the new system is better than the old one.
I wish to address the question of fees raised by Senator O'Toole. It is widely assumed that there is no competition between lawyers regarding conveyancing fees. There are many legal firms offering price competition in this area. Some firms were stating that they would conduct conveyances, no matter how complex, for €999. That indicates very stiff price competition and nobody should be under any illusion in this regard.
The situation is similar in the car insurance market. People should shop around and have the moral courage to raise the issue of the price for the service. As a lawyer, I am aware that some clients are reluctant to raise the question of fees because they assume there is a standard price for certain services. There is no standard price for conveyancing and every fee is, and should be, negotiable.
A colleague in my party said recently that it would be a strange scenario if a plumber hired to repair a burst pipe in Shrewsbury Road made a quick mental valuation of the house before deciding on the appropriate fee. There is a notion abroad that it is reasonable for work to be carried out on a percentage basis but that is not necessarily the obvious means for deciding the price for a particular transaction.
The auctioneering trade must also be taken into account. In that trade price competition is available if one hunts for it. It is only the unsuspecting and the naive who pay standard fees and do not ask for keener prices. The same principle applies to many other areas.
I wish to emphasise that the opportunity for substantive change in land law and conveyancing procedure will arise in the context of the publication of the proposals for a new law of property Bill. That will happen in July. This Bill is modest in its extent.
Senator Cummins asked why the House has been presented with part of a Bill and the reason I am producing the Property Registration Authority provision at a later stage. The answer is quite simple. The Department of Justice, Equality and Law Reform has been working the proposal for the Property Registration Authority for a long period. The work was delayed because my Department was trying to convince the Department of Finance that the pension overhang for creating a new body and transferring public servants to it would not create the need for a capital payment as part of the establishment of this body. If that were the case, it would have had unacceptable implications for the Exchequer. Therefore, this Bill is effectively a reduced form of legislation because the other proposition was put in abeyance.
However, all of the difficulties with the Department of Finance and its legitimate concerns about the establishment of a Property Registration Authority have now been overcome. We are in a position to go ahead with that proposal, but rather than withdraw this Bill and start anew, we decided that it was best to proceed with it so that the decks are cleared for further reform.
Senator Leyden raised the issue of the relocation of the Land Registry to County Roscommon. That is still the intention and the fact that a new body is being established does not affect that in any way. The people of County Roscommon should be aware that it is still the fixed and determined policy of the Government to move the Land Registry to that county in the manner outlined previously. It will bring valuable employment to the town of Roscommon and will afford many families the opportunity to have reasonably priced housing, schools and a different lifestyle in a county that has many amenities ——
I thank the House for its support for this Bill. It will be some weeks before I receive the amendments which are with the Parliamentary Counsel and the Office of the Attorney General at present. However, I will forward the scheme for the amendments to interested parties so their substance does not come as a major surprise when they are finally produced.