Consultation Paper on the General Law of the Landlord and Tenant

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on the landlord’s breach of repairing obligations. 57 The reasoningseems to have been based on Rules of Court requiring a defendant tolodge money in court at the time of entering the defence. 58 Yet, as hasvery recently been pointed out in England, this restriction may causeconsiderable hardship. If the tenant is sufficiently well off to be ableto afford to carry out the repairs which the landlord should carry out,the costs and expenses incurred can be produced as a liquidatedamount upon which to a base a set-off. 59 A tenant who cannot affordto do so, is apparently left to suffer and cannot raise a claim indamages as a set-off. The English Court of Appeal decided that thisdistinction should be abolished and that an unliquidated sum, such asa claim in damages, should equally be the subject of a set-off. 60 TheCommission takes the same view. The Commission provisionallyrecommends that the tenant’s right of set-off should apply to bothliquidated and unliquidated damages. A tenant who wishes to avail ofset-off should be obliged to substantiate the claim in the landlord’sproceedings in order to avoid unnecessary delays.G Distress8.18 The ancient feudal remedy of distress, ie the landlord’s rightto distrain the tenant’s goods, for arrears of rent was abolished inrespect of any premises let solely as a dwelling by section 19 of theHousing (Miscellaneous Provisions) Act 1992. 61 It remains available5758596061MacCausland and Kimmitt v Carroll and Dooling (1938) 72 ILTR 158.See also Butcher v Ruth (1887) 22 LR Ir 380; Martin v Brady (1934) 68ILTR 136.Per Maguire P in the MacCausland case op cit at 149, cited, with approval,by Kinlen J in Riordan v Carroll [1996] 2 ILRM 263, 275. Maguire P wasreferring to Order 7 rule 6 of the Circuit Court Rules 1930; later replacedby Order 12 rule 7 of the Circuit Court Rules 1950. Order 15 rule 7 of theCircuit Court Rules 2001 now refers to a defendant setting-off orcounterclaiming against claims “whether such set-off or counterclaim is aclaim in damages or not”.Note that section 87 of the Landlord and Tenant (Amendment) Act 1980gives express recognition of a set-off in respect of repairs carried out by atenant on failure by the landlord. See <strong>Consultation</strong> <strong>Paper</strong> on BusinessTenancies (LRC CP21–2003) paragraph 4.55. Note also section 61 of the1980 Act (set-off of compensation against rent).Muscat v Smith [2003] 40 EG 148.See Wylie op cit paragraph 12.14.121
in respect of commercial and mixed-use premises, but is rarely, ifever, invoked nowadays. One reason is that it is subject to numerouspractical and procedural complications. 62 It has been queried whethersuch a “self-help” remedy has any place in modern times 63 and anumber of jurisdictions have abolished it altogether. 64 There are alsodoubts whether certain features of the remedy would survive aconstitutional challenge here. 65 In view of all this the Commissioninclines to the view that the time has come to consign the remedy tohistory. The Commission provisionally recommends that the right ofdistress should be abolished altogether.H Ejectment for Non-payment of Rent8.19 Attention should also be drawn in this context to the specialstatutory remedy of ejectment for non-payment of rent, now governedby sections 52-58 of Deasy’s Act. 66 This remedy is to bedistinguished from other actions of ejectment 67 which proceed on thebasis that the tenancy has determined and the landlord wishes torecover possession of the former demised premises. 6862636465666768Largely owing to statutory intervention: ibid paragraph 12.17.See the views expressed in the Bankruptcy Law Committee Report (Prl2714, 1972) paragraph 55.8.2: “In our view no case can be made in presentday circumstances for the type of ‘self-help’ involved which puts landlordsin an extraordinarily advantageous position vis-à-vis the communitygenerally.”In Northern Ireland it was abolished by section 122 of the Judgments(Enforcement) Act (Northern Ireland) 1969. Note that the English LawReform bodies have taken different stances at different times, ranging fromrecommending abolition (Law Com No 194 (1991)) to retaining it forcommercial properties (Lord Chancellor’s Department’s Distress for Rent<strong>Consultation</strong> <strong>Paper</strong> (2001)).Under Articles 40 (citizen’s dwelling inviolable) and 43 (right of privateownership): see Wylie op cit paragraph 12.15.For detailed consideration of this remedy see Dowling Ejectment for Nonpaymentof Rent (SLS Legal Publications (Northern Ireland) 1986). Notethat the remedy is not available against lessees of long leases who qualifyto purchase the fee simple under Part II of the Landlord and Tenant(Ground Rents) (No 2) Act 1978.Eg on the title or for overholding.These forms are considered in Chapter 15 below.122
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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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need to have statutory provisions t
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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
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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
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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 128 and 129: overholding. 47 The Commission prov
Page 132 and 133: Notwithstanding use of the title
Page 134 and 135: CHAPTER 9SERVICE CHARGES9.01 It has
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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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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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“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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