Consultation Paper on the General Law of the Landlord and Tenant

10.13 The Irish courts have long recognised that a landlord mayseek the equitable remedy of specific performance to force the tenantto carry out repairs in accordance with obligations under thetenancy. 32 It is not, however, often invoked. It is usually much morepractical, if the landlord wants to keep the tenancy in place, 33 for thelandlord to do the necessary repairs and to recoup the cost from thetenant. However, no such right to do so exists at common law 34 and atpresent the landlord has to rely upon an express provision in the leaseor tenancy agreement. 35 As indicated earlier, 36 the Commissionconsiders that there should be a variable statutory right to do so. TheCommission provisionally recommends that the landlord should havethe variable right to carry out repairs for which the tenant isresponsible and to recoup the costs and expenses from the tenant.10.14 Although not a remedy as such it is common for thelandlord to seek compliance with the tenant’s repairing obligations byserving a “dilapidations notice” or “schedule of dilapidations”. 37 Thismay be served at any time when the premises are in a state ofdisrepair, but is commonly done shortly before or on thedetermination of the tenancy. 38 Another common situation is wherethe landlord makes compliance with such a notice or schedule acondition of giving consent to an assignment of the tenancy. There issome doubt as to how far this practice would be caught by theprovisions in the Landlord and Tenant (Amendment) Act 1980 393233343536373839Rushbrooke v O’Sullivan [1908] 1 IR 232. The English courts took muchlonger to recognise this right: see Rainbow Estates Ltd v Tokenhold Ltd[1998] 2 All ER 860.The alternative always open to the landlord is to invoke the remedy offorfeiture for breach of obligation, and thereby determine the tenancy.This subject is considered in a later chapter: see Chapter 14 below.See the Rainbow Estates case, footnote 32 above.See Jervis v Harris [1996] 1 All ER 303.With reference to the proposed provision in section 16(g) of theResidential Tenancies Bill 2003, see paragraph 10.11 above.See Wylie op cit paragraphs 15.30 and 15.35-37.Sometimes it is done at the commencement of the tenancy, where thetenant is under an obligation to put the premises into repair.See Wylie op cit paragraph 15.37. The 1980 Act’s provisions wereconsidered in the <strong>Consultation</strong> <strong>Paper</strong> on Business Tenancies (LRC CP 21–2003) paragraphs 3.41 and 4.47.135