Consultation Paper on the General Law of the Landlord and Tenant

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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
It cannot be invoked in other proceedings, such as an action ofejectment for non-payment of rent, 51 or in other ejectment actions. 52 Itis difficult to square this with the wide wording of the section 53 andthe problem is increased by the Irish courts’ conflicting views as towhether a tenant can claim a right of set-off in such cases at commonlaw. 54 This matter ought to be resolved by clearer legislation. TheCommission provisionally recommends that the tenant’s right of setoffunder section 48 ought to apply to all proceedings which alandlord may bring against the tenant in respect of breach ofobligations by the tenant.8.17 A second ambiguity is that section 48 refers to the tenant’sright of set-off 55 in respect of “all just debts” due by the landlord tothe tenant. Notwithstanding this very wide language it has been heldthat it does not apply to debts wholly unconnected with the particulartenancy. 56 The Commission’s view is that this is an appropriaterestriction on the right, but there is another restriction which the Irishcourts have adhered to which is of more doubtful justification. It haslong been held that the tenant can only set-off a liquidated sum, asopposed to an unliquidated sum, such as a claim for damages based515253545556“All claims and demands by any landlord against his tenant in respect ofrent shall be subject to deduction or set-off in respect of all just debtsdue by the landlord to the tenant.”Dalton v Barlow (1867) 1 ILT 490.See Riordan v Carroll [1996] 2 ILRM 263, 275-6 (per Kinlen J).It has been doubted whether the courts’ interpretation accords with thelegislative intent: see Dowling “Set-off against Rent” (1988) 39 NI LQ 258at 266-7.Cf Whitton v Hanlon (1885) 16 LR Ir 117 and Wilson v Burne (1889) 24LR Ir 14. The English courts seem to have taken a broader view: see BICCplc v Burnley Corporation [1985] 1 All ER 417; Eller v GrovecrestInvestments Ltd [1994] 4 All ER 845.The section also refers to a right of “deduction”, but this is probablysuperfluous and there is no difference between the two rights. Bothinvolve a defence raised to the landlord’s action and should bedistinguished from a counterclaim, which is in substance a separate actionby the tenant: see Doyle “Set-off and Counterclaim – Deciphering the IrishRules” (1989) 83 Gazette of Incorporated Law Society of Ireland 367;Wylie op cit paragraph 12.09.Mullarkey v Donohoe (1885) 16 LR Ir 365.120
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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
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E Surrenders2.21 Section 7 of Deasy
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premises, the alternative of a new
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espect to the part not surrendered.
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CHAPTER 3SUCCESSORS IN TITLE3.01 Th
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section 10 of the Conveyancing Act
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prescribe that a particular tenant
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not clear how far statute law has c
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was not resolved until the enactmen
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the doctrine of estoppel. 57 On the
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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
Page 84 and 85: tenant. Often an item installed in
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 106 and 107: may not be a point of much substanc
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
Page 116 and 117: E Landlord’s Identity and Agent6.
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
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
Page 141 and 142: section 42 implied obligation shoul
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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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Page 157 and 158: 12.03 Merger is a doctrine of gener
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Page 161 and 162: should be any distinction as to the
Page 163 and 164: 12.11 There is one further, somewha
Page 166 and 167: CHAPTER 13NOTICE13.01 Service of a
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Page 170 and 171: D Sub-Tenants13.08 It may be conven
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Page 175 and 176: very small rent. The Residential Te
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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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