Consultation Paper on the General Law of the Landlord and Tenant

may not be a point of much substance because the landlord’sobligations imposed by section 12 are in addition to “obligationsarising by or under any other enactment.” Thus reliance may still beput on section 41 of Deasy’s Act, but only if the tenancy was createdby a lease. If it was not, reliance can still be put on the more limitedcovenant implied at common law. 236.07 What is of rather more significance is the fact that onecannot contract out of the obligation imposed by section 12(1)(a) ofthe 2003 Bill because “no provision of any lease, tenancy agreement,contract or other agreement (whether entered into before, on or afterthe commencement of this Part) may operate to vary, modify orrestrict in any way” 24 the operation of section 12. On the other hand,as pointed out earlier, 25 section 41 of Deasy’s Act can be, andinvariably is, modified expressly in leases. This raises the issue ofwhether the “overriding”, but arguably more limited, 26 obligation insection 12(1)(a) should be extended to cover a wider range oftenancies or, alternatively, whether the obligation suggested earlier asthe appropriate one to replace that in section 41 of Deasy’s Act shouldbe an “overriding” one, or remain, as under section 41, a “variable”one. The Commission’s inclination is not to base any proposal at thisstage on a provision in a Bill only recently introduced in theOireachtas, the wording and scope of which may change before it isfinally enacted. This is supported by the fact that this provision ismeant to operate as a supplement to other legislation, which is theconcern of this <strong>Consultation</strong> <strong>Paper</strong>.6.08 Turning then to the replacement of section 41 of Deasy’sAct, the Commission’s preliminary view is that an obligation by thelandlord to see that the tenant has “quiet enjoyment” or, to use theexpression in section 12(1)(a) of the Residential Tenancies Bill 2003,“peaceful and exclusive occupation”, of the demised premises goes tothe very root of the landlord and tenant relationship. The right to“exclusive possession” is what the landlord is purporting to give thetenant. That is why its existence has so often been regarded as a key23242526See paragraph 6.05 above.Section 18(1). A lease or tenancy agreement may, however, confer “morefavourable terms” on the tenant: section 18(2).Paragraph 6.05 above.See paragraph 6.06 above.97