HC Deb 21 July 1967 vol 750 cc2730-7
Mr. Graham Page

I beg to move Amendment No. 6, in page 5, line 17, to leave out from 'interest' to 'that' in line 19.

Clause 4 provides that, in a contract or sale of dwelling house which is subject to the wife's charge for her right to occupy, there shall be an implied term of the contract that the vendor—assuming, again, the husband—before completion will procedure the cancellation of the registration of the charge.

Again taking the example of a husband and wife, with the husband owning the property and the wife the injured party, this is all plain sailing when the husband seeks to sell the property with vacant possession. He so arranges with the wife that she will go out of occupation and cancel her land charge on the property. When the application is handed over on completion, as we have heard in connection with the last Amendment, the wife's right is thereby cancelled.

The transaction may not be quite as simple as that. Suppose the spouses have become estranged some time previously, the husband has gone out of possession, and the wife has remained in occupation. Perhaps she does not wish to remain in occupation any longer, although she has registered her charge against it. It may be that she is going overseas for a holiday or that her work takes her somewhere else and that, for a time, the husband and wife arrange between them that the property shall be let.

Let us say that it is let for six months but that the wife's charge is left on the register so that she can return to the property if she sees fit. While it is let, assume that the husband and wife agree that it shall be sold. A contract is entered into for the sale of the property, subject to the tenancy. The tenancy may have three months to run, and the purchaser decides to take on the tenant for that time and then have vacant possession for himself. Why, on such an occasion, should there be any difference? Why should there be this restriction in Clause 4 that the terms of the contract obliging the vendor to remove the land charge should not apply?

Clause 4 is restricted at the moment to the case where the property is being sold with vacant possession. But that is not the only occasion on which the land charge may be registered in favour of the wife. It may have been registered previously and still be on the register, and the purchaser who has acquired the property and perhaps mortgaged it will want that removed.

It may be said that on such an occasion it can be provided for in the contract, all that Clause 4 is doing is to imply a term in the contract, and that when the property is sold without vacant possession and with a tenant in for some time, there should be a special clause in the contract saying that the vendor must remove the land charge. That seems to be an unnecessary trouble which could be provided against in the Bill. Surely there would be no harm in removing these words from Clause 4 and implying the term in any contract obliging the vendor to remove at his own expense a charge registered in favour of some one who has rights of ocupation.

I would like to see Clause 4 apply to any contract and not merely to one for vacant possession.

Mr. Archer

With his customary fairness, the hon. Gentleman has provided the answer to his own argument.

The standard situation is that either the purchaser expects to acquire vacant possession or he does not. If he expects to acquire it free from encumbrances, the Clause says that he shall have the benefit of that understanding, and the obligation is imposed on the vendor accordingly. If the purchaser does not expect to acquire the property free from encumbrances, there appears to be no reason why this undertaking should be implied.

Where the situation is more complicated, such as that which the hon. Gentleman outlined, the proper thing to do is for the parties to provide expressly for it in the contract. It is always open to them to do that. As a general rule, there seems to be no reason why one should imply such an undertaking into a contract in a case where the purchaser does not expect to obtain the property free from encumbrances.

It is right that I should say that the terms of the Clause have been discussed with the Law Society which has expressed itself completely satisfied. In those circumstances, it may be that the hon. Gentleman will be prepared to accept that the Clause deals simply with the normal case, falling on one side of the line or the other, and that more complicated situations should be left to the parties to make their own arrangements.

Mr. Graham Page

The case which I put forward was in no way complicated. It is the ordinary case of property being acquired with a tenant in it with a view to possession being taken at a later date. If it is thought desirable to include an implied term when property is being sold with vacant possession, I see no reason why it should not be implied on all occasions when there is a charge registered in favour of one of the spouses for the right to occupy. It is whether that charge is registered which is important, not whether the property is sold with vacant possession, and the vendor is responsible for getting that charge removed. Why should it be written into one contract and merely implied in another?

Mr. Archer

Before the hon. Gentleman sits down, does he acknowledge that the Amendment goes very much further than the situation which he has exemplified to the House? What he is saying in his Amendment is that the undertaking should be implied in every case and not merely where there is some limited benefit which the purchaser expects to acquire. In those circumstances, it seems a little hard to put upon the vendor the obligation of excluding this in cases where the purchaser expects nothing better.

Mr. Graham Page rose—

Mr. Speaker

We are not in Committee.

Mr. Graham Page

I took that as an intervention before I had resumed my seat.

Mr. Speaker

It was lengthy enough to be something like a Committee speech.

Mr. Graham Page

I shall try not to repeat that offence.

The Bill will require a great number of further requisitions by the purchaser's solicitor, to try to find out the facts. The more implied terms there are in the contract to dispose of these difficulties, the less will be the requisitions. In the case which I envisaged, the solicitor will have to make requisitions about whether there is a right of the wife, and so on. I can see no reason for dividing contracts up in this way, and I had hoped that the Amendment would be accepted.

Amendment negatived.

2.41 p.m.

Mr. Archer

I beg to move, That the Bill be now read the Third time.

I am conscious that the House has other business to discuss, but I cannot let this moment pass without breathing an audible sigh of gratitude that the Measure is approaching the end of its progress through the House. It is an unpretentious piece of legislation, but it may avert real personal tragedy for many people who are unaware of our deliberations.

I would not like the moment to pass without saying that on many occasions we have had to consider the balance of fairness between a spouse and her children on the one hand, and on the other a third party who spends money in good faith on the expedition of acquiring a home. Sometimes this involves dealing with a situation with the only weapons available, which are blatant legal technicalities. Where we have arrived at a conclusion on one side of the other of the line, the most that we can plead is that after careful consideration we have done our best.

I express my personal thanks to those who, both in and out of the limelight, worked very hard to achieve this Measure, to right hon. and hon. Members who took part in our deliberations, and to one other person who acquires more brickbats than bouquets, the Leader of the House, for having it made it possible for us to consummate our deliberations today.

2.43 p.m.

Mr. Graham Page

I offer my sincere congratulations to the hon. Member for Rowley Regis and Tipton (Mr. Archer) for piloting the Bill through to this stage, particularly because, in my view, the intentions of the Bill are wholly good, and I support them entirely, but the Bill itself is wholly bad. It will cause an increase in legal work, to no purpose. We could have achieved the principals of the Bill in a much simpler way.

At a time when the legal profession is being accused of increasing the costs of conveyancing, the Bill will contribute to increasing them still further, and will be harmful to the desire to streamline conveyancing. All this could have been done in a much simpler way. I think that this is a bad Bill, and this makes me congratulate the hon. Gentleman even more for his success in getting a bad Bill through on a very good principle.

2.44 p.m.

Mr. Braine

In view of what my hon. Friend the Member for Crosby (Mr. Graham Page) has said about the Bill, I feel that I should rise on behalf of this side of the House to express our support for its principles. Unfortunately, the Bill did not get debated in second Reading, but, thanks to the searching Amendments put down by my hon. Friend, both in Committee and today, and thanks to the extremely able, courteous, and skilful handling of the Bill by the hon. Member for Rowley Regis and Tipton (Mr. Archer), it has since been given a thorough scrutiny.

I mean no disrespect to an honourable profession when I say that the argument has been conducted, on both sides, almost wholly by lawyers. The Bill is none the worse for that. It involves considerable legal technicalities, and from time to time it has been very difficult for some of the laymen to follow the arguments. Nevertheless, it is important that we enact legislation which is capable of being implemented and understood, and is clear and fair. This is why I thought that at an earlier stage my hon. Friend the Member for Crosby was right in saying that it is not what we say here about the provisions of the Bill that matters, so much as what the courts will say—because this is going to be very much a matter for the courts —about the actual words in the Statute.

The Bill is concerned with removing—happily for not a large number of people—a serious defect in the existing law with regard to the rights of a spouse who has become estranged, and especially those of a wife with young children. The hon. Member for Rowley Regis and Tipton said that it was an unpretentious Measure. That is a modest way of putting it. I think that it is an extremely valuable Bill. Something like this had to be enacted. We all know of tragic cases—I have had a number of them brought to my attention—in which a wife, very often with a number of young children, has been deprived of her right of occupation of the matrimonial home. Whatever the rights or wrongs which have led to the break up of the marriage, one's heart bleeds for the innocent children, already deprived as they would be of the love of both parents. It must be wholly wrong that in such cases there is no adequate safeguard for them. The Bill seeks to provide that safeguard, and to the extent that it does so it is deserving of our support. I pay my tribute to those who, with skill and pertinacity, have guided it through the House.

2.47 p.m.

The Solicitor-General

I join hon. Gentlemen opposite in welcoming the Third Reading of the Bill. This Measure has the support of the great majority of hon. Members, very much for the reasons which the hon. Member for Essex, South-East (Mr. Braine) has just expressed. It deals with a social evil, and many of us are familiar with the sort of matter with which the Bill is concerned.

I join in the congratulations which have been offered to my hon. Friend the Member for Rowley Regis and Tipton (Mr. Archer) for the way in which he has marshalled his arguments and carried the Bill through all its stages.

I extend my thanks to the hon. Member for Crosby (Mr. Graham Page). He was in a minority, though I know that that does not worry him very much. He was in a minority on this occasion, and a very small one, but he made a very useful contribution to the proceedings on the Bill, and it is a very much better Measure because of that.

I would like to refer to one matter which has arisen during the discussions on the Bill. The hon. Member for Crosby, and others, and some outside the House, have expressed a certain amount of apprehension about what will be the position of solicitors who have to advise their clients after the Bill becomes law. Where, for example, a solicitor is advising the husband, will he be under a duty to advise the wife, even though the wife may not herself be his client?

It is not possible for the promoters of the Bill, or the Government, to say what view the courts may take of the duty of a solicitor in an individual case should one ever arise, but it is evident that the courts would be bound to have regard to the facts of the case, as was pointed out by my hon. Friend in Committee. If a solicitor is consulted by the husband alone, it seems to me that it will be very difficult to argue that the solicitor owes any duty to the wife to inform her of her rights under the Bill, still less to protect them by the registration of a charge.

If solicitors were consulted by both husband and wife it might come to be regarded as their duty to inform the wife of rights conferred on her by the Bill, but it by no means follows that he should go on to advise the wife to register a land charge if the solicitor had no reason to suppose that the marriage was anything but a happy one.

This is borne out by the fact that solicitors at present do not appear to regard it as their duty to advise husbands arid wives to take a conveyance of the matrimonial home in their joint names, although the advantages of doing so may be thought to be even more important than those attached to the registration of a class F land charge, not least because of the considerable saving in Estate Duty in the event of the husband dying first.

It seems to me that in the case of the results of occupation conferred by the Bill a solicitor, like any other person, is entitled to take account of the practical realities of the situation with which he has to deal and should be under no obligation to advise a wife to register a charge when there is no reason to suppose that the marriage is likely to go wrong.

I thought that I should say something on that subject, but I rose mainly to join in the general welcome given to the Bill, and the congratulations which have been offered to my hon. Friend.

Question put and agreed to.

Bill accordingly read the Third time and passed with Amendments.