Consultation Paper on the General Law of the Landlord and Tenant

overholding. 47 The Commission provisionally recommends thatsection 66 of Deasy’s Act ought to be extended to cover all cases ofrecovery of possession by the landlord thereby making it clear inevery instance that rent is recoverable up to the date possession isactually recovered.8.15 It may be appropriate to note in passing that section 46 ofDeasy’s Act gives statutory recognition to the common law right of alandowner to recover “reasonable satisfaction” (ie compensation)where another person is permitted to occupy the land, without anyagreement for payment of rent or other compensation. This right ofaction for “use and occupation” 48 should not be confused with theright to recover mesne profits or mesne rates against a trespasser. 49 Inessence the latter constitute damages awarded for the tort of trespass.Deasy’s Act appears to confuse the two distinct actions becausesection 77 provides for recovery of “rent or mesne profits” to the dayof trial of an action of ejectment, yet, as pointed out earlier, section 66provides that “rent” is recoverable until the recovery of possessionunder any court order made at the end of the trial of an action forejectment of non-payment of rent. The Commission provisionallyrecommends that the confusion between an action for use andoccupation of land and an action for mesne profits or rates in Deasy’sAct should be cleared up.F Set-off8.16 The issue of the extent to which a tenant can set-off againstor make deductions from a claim for rent by the landlord is governedby the somewhat ambiguous provisions of section 48 of Deasy’s Act.One point of doubt is that the section refers to “[a]ll claims anddemands” by the landlord in respect of rent but this has beeninterpreted as referring only to proceedings to recover rent qua rent,for example, in an action to recover rent brought under section 45. 5047484950See further paragraph 15.07 below.Which can be applied to a wide range of occupiers, eg, a purchaser who isallowed into possession under a contract for sale which is later aborted: seeMarkey v Coote (1876) IR 10 CL 149. See Wylie op cit paragraph 12.13.See Wylie op cit paragraph 27.17.See paragraph 8.13 above. Section 48 of Deasy’s Act states:119