Consultation Paper on the General Law of the Landlord and Tenant

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left to be covered by obligations, whether express or statutory,relating to maintenance and repair of the demised premises. TheCommission provisionally recommends that the law of waste shouldno longer apply as between landlords and tenants and that sections25-39 of Deasy’s Act should be repealed without direct replacement.B Repairing Obligations10.06 Section 42 of Deasy’s Act implies in every lease 12obligations 13 to (1) “keep the premises in good and substantial repairand condition” and (2) “give peaceable possession of the demisedpremises, in good and substantial repair and condition, on thedetermination of the lease”. 14 As what is essentially a “default”provision, this seems to be basically a satisfactory provision but theremay be scope for some clarification and simplification.10.07 The obligation implied under section 42 is one to “keep” thedemised premises in repair. It has been held that such an obligationalso implies an obligation to “put” the premises into repair if they arein a state of disrepair at the commencement of the tenancy. 15 TheCommission doubts very much whether this accords with what mosttenants would understand by an obligation simply to “keep” in repair,ie, one would assume that the obligation simply requires maintainingthe condition in which the premises are first let to the tenant. It is tobe noted that the statutory obligations proposed to be imposed ontenants of dwellings by section 16 of the Residential Tenancies Bill2003 confines the repairing obligation to not doing any act that wouldcause a deterioration “in the condition the dwelling was in at thecommencement of the tenancy.” 16 The Commission considers that the1213141516It was pointed out earlier that there seems no reason why the impliedobligations in section 42 should not apply to all tenancies, whether or notcreated by a document: see paragraph 8.03 above.Which are “variable” ones subject to the express provisions of the lease:see ibid.Covenant (2) is subject to the tenant’s right of surrender in cases of“destruction” in accordance with section 40: see paragraph 11.03 below.Lurcott v Wakely and Wheeler [1911] KB 905, approved by the SupremeCourt in Groome v Fodhla Printing Co Ltd [1943] IR 380, 401 (perO’Byrne J) and 407 (per Black J). See also Fleming v Brennan [1941] IR499.Section 16(f).131
section 42 implied obligation should also be so restricted. TheCommission provisionally recommends that the tenant’s repairingobligation under section 42 of Deasy’s Act should not extend toputting into repair or improving the condition in which the demisedpremises are in at the commencement of the tenancy.10.08 The Commission has noted that recent cases in Englandhave held that there is a distinction between an obligation simply “torepair” and, as under section 42, an obligation “to keep in repair”.The latter involves an obligation never to let the premises fall intodisrepair, ie it refers more to the condition of the premises rather thanthe duty to take action to carry out repairs. 17 Thus liability, eg indamages, occurs as soon as the state of disrepair arises and there is noquestion of giving the party under the obligation time to carry out thenecessary repair work. 18 This sort of strict liability may catch out atenant where, for example, strict compliance with the terms of thelease is a pre-condition to proper exercise of a break option or otheroption. 19 Again it may be questionable whether such strict liability isappropriate for a statutory implied obligation. Section 16 of theResidential Tenancies Bill 2003 contemplates a less strict liability fortenants of dwellings since it refers to the tenant in the case ofdeterioration in the condition of the dwelling having to “take suchsteps as the landlord may reasonably require to be taken for thepurpose of restoring the dwelling”. 20 The Commission provisionallyrecommends that the tenant’s repairing obligation under section 42 ofDeasy’s Act should not involve strict liability and should require onlythat reasonable steps are taken to deal with any disrepair promptly.10.09 The tenant’s obligation under section 42 appears to beunqualified in the sense that it does not seem to allow for what isusually referred to as “fair wear and tear”. On the other hand, the17181920British Telecom plc v Sun Life Assurance Society plc [1995] 4 All ER 44.Cf Trane UK Ltd v Provident Mutual Life Assurance Association [1995] 1EGLR 33.In the British Telecom case it was the landlord which was caught by thisprinciple, because it was liable directly for repairs to a multi-let property inaccordance with the service charge provisions.See the Trane UK case, footnote 16 above. On the subject of options inleases see Wylie op cit Chapter 20.Section 16(g).132
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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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tenant. Often an item installed in
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A Common Law4.09 Originally at comm
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parties’ agreement. Furthermore,
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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 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: namely permissive, voluntary, ameli
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Page 145 and 146: against “unreasonable withholding
Page 147 and 148: obligations by the landlord, 50 is
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
Page 177 and 178: obligation by any tenant unless exc
Page 179 and 180: y one joint tenant is sufficient to
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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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