Consultation Paper on the General Law of the Landlord and Tenant

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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
against “unreasonable withholding” of consent to alienation. 40 TheCommission thinks that any doubt on this subject should be resolved.The Commission provisionally recommends that it should be madeclear by statute that it is permissible for a landlord to make it acondition of consent to an assignment that either the tenant or theassignee complies with repairing obligations within a reasonablespecified time.10.15 So far as the tenant is concerned, again a range of remediesis available, including seeking specific performance, 41 to enforce thelandlord’s obligations. The tenant may also seek damages but itwould appear that it is not possible to claim on the basis of diminutionin the value of the tenancy if, as will often be desired, the tenantremains in occupation despite the failure by the landlord to carry outrepairs. 42 It has been suggested in Ireland that the tenant in such casesmay, nevertheless, recover damages for “physical inconvenience anddiscomfort”. 43 This appears to be somewhat at variance with thegeneral principle of the law of contract that damages for breach ofcontract cannot include an element for annoyance, vexation ordisappointment. 44 The Commission thinks that this point should beclarified in favour of tenants. The Commission provisionallyrecommends that, if a tenant continues in possession despite thelandlord’s failure to perform obligations like a repairing one, thetenant should have a statutory right to claim damages for physicalinconvenience and discomfort.10.16 One of the issues which is raised from time to time is that atenant does not have, particularly in a commercial context, a veryeffective and practical remedy, the exercise or threat of exercise ofwhich is likely to induce the landlord to carry out repairing and otherobligations. The landlord can always threaten the tenant with a4041424344The English authorities suggest that a landlord should be cautious infollowing this practice: Orlando Investments Ltd v Grosvenor EstateBelgravia [1989] 2 EGLR 74; Straudley Investments Ltd v Mount EdenLand Ltd [1997] EGCS 175. Cf Farr v Ginnings (1928) 44 ILTR 249.See Wylie op cit paragraph 15.19.Wallace v Manchester City Council [1998] 3 EGLR 38.Siney v Dublin Corporation [1980] IR 400, 415 (per O’Higgins CJ).See McDermott Contract Law (Butterworths 2001) at 1151. Cf aggravateddamages in tort: see Whelan v Madigan [1978] ILRM 136.136
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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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fixtures. Given that this is subjec
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(viii) it should also be made clear
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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
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
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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
Page 124 and 125: until the last gale day of the curr
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
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
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Page 143: sensible provisions, which are usua
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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
Page 177 and 178: obligation by any tenant unless exc
Page 179 and 180: y one joint tenant is sufficient to
Page 181 and 182: “reasonable time” may vary from
Page 183 and 184: ent and other payments may be accum
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Page 187 and 188: mortgage it should have power to de
Page 189 and 190: a tenancy of a dwelling could not b
Page 191 and 192: seems to have fallen into disuse. 1
Page 193 and 194: 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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