Topical Issues Debate – 27 November 2013
Opening Remarks by Minister of State Kathleen Lynch, TD for Alan Shatter TD, Minister for Justice, Equality and Defence
To ask the Minister for Justice to outline the steps being taken to address misleading property “trusts” and inform the public of their dangers following the arrest of the leader of one of these trusts this week.
- Deputy Niall Collins
OPENING STATEMENT ON BEHALF OF THE MINISTER FOR JUSTICE AND EQUALITY
I thank Deputy Collins for raising this important issue. Minister Shatter is unable to be in the chamber today as he is currently visiting the Middle East in his capacity as the Minister for Defence.
This Government has brought forward significant modernisation of the law in regard to addressing the problem of over-indebtedness, primarily through the enactment of the Personal Insolvency Act 2012 and reform of the Bankruptcy Act 1988. The Personal Insolvency Act established three new debt resolution mechanisms: the Debt Relief Notice, the Debt Settlement Arrangement and the Personal Insolvency Arrangement.
In the context of today’s debate, the Personal Insolvency Arrangement, or PIA, has been the most significant development. The PIA will enable the agreed settlement of all unsecured debt and secured debt up to €3 million, a cap which may be increased with the consent of all secured creditors. The PIA provides for the negotiated resolution of secured debt in a court sanctioned process that provides certainty for creditors and hope and relief for debtors. The PIA does not just mean mortgage debt, it is effectively a form of personal examinership which can comprehend debt arising from trading or business activities, including agricultural activities.
To protect the constitutional rights of all concerned and to prevent potential actions for judicial review, the Act provides for enhanced oversight by the courts of the new debt resolution procedures. This court involvement has the significant benefit to the debtor of providing protection from enforcement actions by creditors, either during the negotiation period or during the lifetime of the arrangement.
Trust law allows for the legal title of land to be held by trustees, not for their own benefit but rather for the benefit of the beneficiaries of the trust. The beneficiaries are said to be the beneficial owners and the property must be used for their benefit rather than for the benefit of the trustees.
The trust mechanism may be used in family situations where, for example, the intended beneficiary is a minor or is otherwise incapable of managing the property. Trusts are also commonly created in the context of wills where the testator may leave property to his or her spouse for life and afterwards to his or her children. The creation of trusts for charitable purposes is also common.
The Property Registration Authority is the State authority which manages and controls the Land Registry and Registry of Deeds. I am advised by the Authority that in recent months over 500 applications for the registration of “Notices of Certificates of Acknowledgement of the Living Man’s Claim of Right” were received in the Land Registry office. Based on the third party witness, common to all these documents, it appears these originated in the Trust in question.
The “Notices of Certificates of Acknowledgement” appear to be applications to record on a State register the acknowledgement of the “Living Man”. The “Freeman on the Land” is one of a number of groups, originating in Canada and the U.S. who advance the notion that the legal person and living person are two distinct entities. The living person is, in that belief system, not bound by law or court rulings, unless and until the living person or “freeman” contracts to accept such law. Obtaining an entry on a State register of the recognition of the “living man” or “freeman on the land” is often a first tactical step within these groups.
These applications were all rejected by the Property Registration Authority. In so far as the Registry of Deeds is concerned, the documents that were presented for registration were not Deeds within the meaning of Section 32(1) of the Registration of Deeds and Title Act 2006. Therefore, no registration could be made in the office. In so far as the Land Registry was concerned, the registers, which are maintained in that office, must consist of information required to be recorded under the Registration of Deeds and Title Acts 1964 to 2006 and be authorised by the Land Registration Rules 2012. The applications received, in these particular cases, did not constitute applications for an authorised entry on the Folios of the register and were not in a form prescribed by the Land Registration Rules 2012.
I am advised that it appears that the Property Registration Authority has not received any applications from any other trust of this nature.