Consultation Paper on the General Law of the Landlord and Tenant

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CHAPTER 9SERVICE CHARGES9.01 It has become increasingly common in modern times for atenant to have to pay, in addition to rent in the traditional form, 1 aservice charge usually on an annual basis. 2 Such charges havebecome standard in lettings of multi-unit developments, such asresidential blocks of flats, apartments and duplexes and commercialdevelopments like office buildings, shopping centres and industrialparks. The particular feature of such developments is that the varioustenants of individual units have to share common areas (such as stairs,lifts, passageways, car parks and gardens), facilities (such as centralheating and air conditioning) and machinery, plant and equipmentproviding facilities and services (such as gas, electricity, water,drainage and sewerage). Much the most practical way of managingthis situation is to have the common landlord, or a managementcompany established for the purpose, take responsibility for theprovision and management of all aspects of these “services” and torecoup the costs and expenses by way of a service charge levied oneach of the tenants.9.02 Such developments can give rise to several problems, someof which relate to the complexity of the conveyancing involved 3 and123In practice it is common for service charges to be reserved expressly as“additional rent”. The reason for this is so that the landlord can avail ofspecial features attaching to enforcement of rental obligations. Apart fromthe special action of ejectment for non-payment of rent and right ofdistress, both now of questionable advantage (see paragraphs 8.17 and 8.19above), the somewhat complicated notice procedure for effecting aforfeiture for breach of covenant contained in section 14 of theConveyancing Act 1881 does not apply to forfeiture for non-payment ofrent: see paragraph 14.07 below.See precedent L.2.4 in Laffoy’s Irish Conveyancing Precedents (LooseleafButterworths).To which attention was drawn by the Supreme Court in MetropolitanProperties Ltd v O’Brien [1995] 1 IR 467.125
others of which relate to practical failures and bad management. 4 TheCommission has recently pointed out that some of these problemshave been solved in other jurisdictions by special legislation, such asthe strata titles legislation in Australia and New Zealand andcondominiums laws of North America. 5 It was indicated that thissubject would be considered by the Commission at a later stage. 6 Infact that consideration is now under way as a separate project and itwould be inappropriate for this <strong>Consultation</strong> <strong>Paper</strong> to anticipate theoutcome. One obvious reason for this is that the other project willhave under consideration various matters which lie outside the scopeof landlord and tenant law.9.03 It may, however, be appropriate to raise a few matterswhich do concern service charges provided for under lettingarrangements in multi-let developments. One particular concernwhich has been put to the Commission is that service chargeprovisions tend to be very complex and their implications are oftennot fully understood by tenants, especially in residentialdevelopments. 7 At the very least this is a recipe for dispute asbetween the tenants themselves and as between the tenants and thelandlord or management company. There is also the danger that littleunderstood provisions will be drafted very much in favour of thelandlord or will be operated in an unfair manner.9.04 The Commission considers that there is substance to suchconcerns and that there may be scope for some legislative provisionsto deal with them. The sort of issues which such legislation mightdeal with would be: 8 (1) introducing the concept of “reasonableness”45678Eg a failure to set up the management scheme effectively or allowing themanagement company to be struck off the register of companies.Report on Land Law and Conveyancing Law: (7) Positive Covenants overFreehold Land and other Proposals (LRC 70–2003) paragraph 1.10.Ibid paragraph 1.14.An example of such legislation will be found in the English Landlord andTenant Act 1985, sections 18-30, as amended by sections 41-42 andSchedule 2 of the Landlord and Tenant Act 1987 and sections 150-9 andSchedules 9 and 10 of the Commonhold and Leasehold Reform Act 2002.It should be noted that the Residential Tenancies Bill 2003 does not dealdirectly with the subject of service charges, but the provisions for disputeresolution in Part 6 may be relevant in so far as a dispute over servicecharges may be regarded as a “disagreement” raising an issue with regard126
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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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the premises occupied by the sub-te
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CHAPTER 4FIXTURES4.01 The law of
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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
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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
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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
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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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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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Consultation Paper on the General Law of the Landlord and Tenant

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