Consultation Paper on the General Law of the Landlord and Tenant

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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
characteristic of a tenancy. 27 On that basis the obligation to honourthe bargain ought to be regarded as an “overriding” one, out of whichthe landlord may not contract. Any provision purporting to contractout of it could be regarded as negating the very grant of a tenancy.The key consideration is, of course, what it is that a landlord canreasonably be expected to stand over. That is why it was suggestedearlier that the replacement of section 41 of Deasy’s Act shouldcontain a more limited provision, in essence a provision whereby thelandlord carries responsibility for his own actions and “those claimingthrough, under or in trust for him”, ie, those persons for whom itwould not be unreasonable to expect the landlord to carryresponsibility. The Commission provisionally recommends that themore limited replacement of the obligation relating to quietenjoyment in section 41of Deasy’s Act should contain an overridingobligation.6.09 There remains one further matter to be raised. One of theinteresting developments in English case law in recent times has beenthe courts’ willingness to regard landlords of multi-let properties,such as shopping centres, industrial parks and office blocks, as owinga duty to each tenant in such properties to manage it properly. 28Sometimes this duty is stated to be based upon the doctrine of nonderogationfrom grant 29 and sometimes on an express or impliedcovenant for quiet enjoyment. 30 Sometimes it is based on theprinciples of contract law, in that the alleged failure by the landlord issaid to amount to a fundamental breach of contract, a breach going tothe root of the contract or amounting to a repudiation of it, whichjustifies the tenant in “rescinding” it, 31 ie treating himself or herself asdischarged from any further performance of it. 32 It remains to be seen272829303132See paragraph 1.19 above.See Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths 1998)paragraphs 14.12, 15.13 and 17.08.Chartered Trust plc v Davies [1997] 2 EGLR 83; Petra Investments Ltd vJeffrey Rogers plc [2000] 3 EGLR 120.Southwark London Borough Council v Mills [1999] 4 All ER 449.Not to be confused with an order of the court rescinding a contract on thebasis of inequitable conduct (eg, fraud, duress or undue influence) by theother party.Hussein v Mehlman [1992] 2 EGLR 83; Nynehead Developments Ltd v RHFibreboard Containers Ltd [1999] 1 EGLR 7.98
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Landlord and Tenant Law Working Gro
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E Landlord’s Identity and Agent .
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INTRODUCTION1. This is the second <
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CHAPTER 1THE RELATIONSHIP OF LANDLO
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after its enactment there were nume
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Commission’s preliminary conclusi
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1.15 It might be thought that the I
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preliminary conclusion that any re-
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like lodgers, 83 hotel guests, 84 s
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landlord and tenant.” 96 This see
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the nature of a tenant’s interest
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parties an intention which they nev
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management of the said Railway arch
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the courts’ desire in the past to
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CHAPTER 2FORMALITIES2.01 This chapt
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Commission has previously drawn att
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paragraph, such an arrangement woul
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Deasy’s Act should be dropped fro
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the judges of the old Exchequer Cha
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within the purview of the Landlord
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seems to be inconsistent with the c
Page 56 and 57: E Surrenders2.21 Section 7 of Deasy
Page 58 and 59: premises, the alternative of a new
Page 60 and 61: espect to the part not surrendered.
Page 62 and 63: CHAPTER 3SUCCESSORS IN TITLE3.01 Th
Page 64 and 65: section 10 of the Conveyancing Act
Page 66 and 67: prescribe that a particular tenant
Page 68: not clear how far statute law has c
Page 71 and 72: was not resolved until the enactmen
Page 73 and 74: the doctrine of estoppel. 57 On the
Page 75 and 76: eferred to as a severance of the in
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Page 79 and 80: the premises occupied by the sub-te
Page 82 and 83: CHAPTER 4FIXTURES4.01 The law of
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Page 86 and 87: A Common Law4.09 Originally at comm
Page 88 and 89: parties’ agreement. Furthermore,
Page 90 and 91: fixtures. Given that this is subjec
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Page 95 and 96: (2) consumer protection; (3) defaul
Page 97 and 98: subject was discussed in the <stron
Page 99 and 100: already covered by modern legislati
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Page 104 and 105: for sale. 14 This matter is again o
Page 108 and 109: how far the Irish courts will follo
Page 110 and 111: 6.13 To some extent the very limite
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Page 114 and 115: 6.19 It was mentioned earlier that
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Page 118 and 119: CHAPTER 7TENANT’S OBLIGATIONS7.01
Page 120 and 121: CHAPTER 8RENT AND OTHER PAYMENTS8.0
Page 122 and 123: 8.04 Section 42 of Deasy’s Act do
Page 124 and 125: until the last gale day of the curr
Page 126 and 127: one. 33 Disputes as to the new rent
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Page 130 and 131: on the landlord’s breach of repai
Page 132 and 133: Notwithstanding use of the title
Page 134 and 135: CHAPTER 9SERVICE CHARGES9.01 It has
Page 136: in service charges, so as to ensure
Page 139 and 140: namely permissive, voluntary, ameli
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Page 145 and 146: against “unreasonable withholding
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Page 149 and 150: (e)(f)(g)Should the remedy apply to
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12.03 Merger is a doctrine of gener
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eiterates the recommendation of leg
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should be any distinction as to the
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12.11 There is one further, somewha
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CHAPTER 13NOTICE13.01 Service of a
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comprehensive and exhaustive, in th
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D Sub-Tenants13.08 It may be conven
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13.11 As indicated in the recommend
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very small rent. The Residential Te
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obligation by any tenant unless exc
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y one joint tenant is sufficient to
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“reasonable time” may vary from
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ent and other payments may be accum
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obtainable from the court in which
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mortgage it should have power to de
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a tenancy of a dwelling could not b
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seems to have fallen into disuse. 1
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is sufficient. 32 It is questionabl
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CHAPTER 16LIMITATION OF ACTIONS16.0
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1707 Administration of Justice Act
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the occupier of the land in questio
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set of statutory provisions governi
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comprehensively with part assignmen
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(ii) take the form of a scheme of
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y the landlord thereby making it cl
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Chapter 11 Insurance18.73 The Commi
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18.82 The Commission recommends tha
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the original sub-tenancy or mortgag
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APPENDIXLIST OF LAW REFORM COMMISSI
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Working Paper No 1
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Report on the Liability in Tort ofM
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Eleventh (Annual) Report (1989) (Pl
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Report on Occupiers’ Liability (L
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Report on Privacy: Surveillance and
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Consultation <stro
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