Consultation Paper on the General Law of the Landlord and Tenant

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forfeiture for breach of covenant 45 and in most cases the risk therebyof losing the premises in which the tenant runs a business is likely tomake the tenant think seriously about continuing to breachobligations. The tenant does not really have an equivalent remedy, asthe law stands. The right of set-off, even extended as proposed in anearlier chapter, 46 can only be invoked as a defence to a claim by thelandlord for arrears of rent. It also remains to be seen whether theIrish courts will follow the English courts in permitting tenants to“rescind” the tenancy in circumstances where the landlord is allegedto have repudiated the agreement. 47 There are several problems aboutthis development. One is that, quite apart from the lack of Irishauthority, it is still not clear what the scope of this principle is.Another is that it seems reasonably clear that it can only be invokedwhere the landlord is guilty of a very serious, if not fundamental,breach of obligation and it is questionable whether breach of arepairing obligation would amount to this. Perhaps the biggestproblem is that the remedy, ie the right to treat oneself as dischargedfrom any further performance of the tenancy, is not what the tenantwants in many, if not most, cases. The tenant does not want to giveup the tenancy; what the tenant wants is to continue with itsenjoyment, but also with the landlord carrying out his or herobligations.10.17 To some extent the tenant may achieve an effective remedyby invoking the provisions of section 87 of the Landlord and Tenant(Amendment) Act 1980. 48 This entitles a tenant, where the landlordrefuses or fails to carry out repairing obligations despite being calledupon to do so by the tenant, to execute the repairs and then to set offthe expenditure against the rent. 49 The problem about this remedy,which arguably could be extended to cover breaches of other4546474849See Chapter 14 below.See paragraphs 8.15-16 above.See paragraph 6.09 above.Like most of the 1980 Act the section is confined to “tenements”, but the<strong>Consultation</strong> <strong>Paper</strong> on Business Tenancies (LRC CP21-2003) proposedextending the Act to all tenancies: see paragraph 3.43 (concerning theprovisions of Part V, which are confined to covenants in leases ortenancies).CP21-2003 proposed some minor amendments to section 87: ibidparagraph 4.55.137
obligations by the landlord, 50 is that it is only effective for tenantswho can afford to incur the initial expense of carrying out thelandlord’s obligations. 5110.18 The discussion in the previous paragraphs raises the issuewhether some more effective remedy should be made available totenants for breach of obligation by the landlord. Arguably some suchremedy is needed to deal, in particular, with breaches of obligationwhich have a serious impact on the tenant’s enjoyment of the property(like repairing obligations or, in the case of multi-let properties, theobligation to provide various services). The remedy which obviouslycomes to mind is withholding rent or service charge payments untilthe landlord complies with obligations, but it was pointed out earlier 52that it has long been established at common law that the tenant has nosuch right. 53 Yet it was also pointed out earlier that, in fact, thisprinciple was breached by section 83 of Deasy’s Act. The breach wasa very limited one, in the sense that it was confined to “cottiertenants” 54 of which there must be very few, if any, in existencenowadays. 55 Nevertheless, what is significant about the section in thepresent context is that it did provide that where the cottier dwellingwas rendered unfit for occupation by reason of the landlord’s failureto comply with repairing obligations, “no rent or compensation for theoccupation of the said tenement during the time it shall continue insuch state and condition shall be recoverable”.10.19 The question arises whether this sort of provision should berevived and extended to tenancies generally. It is to be noted thatsection 83 of Deasy’s Act was confined to dwellings and the rent wasrendered not “recoverable” 56 only where the landlord’s failure was50515253545556Eg, a failure to insure the premises.This point was raised earlier in relation to restriction of the right of set-offto liquidated, as opposed to, unliquidated sums: see paragraph 8.16 above.Paragraph 6.14 above.Corkerry v Stack (1947) 82 ILTR 60; Riordan v Carroll [1996] 2 ILRM263.Defined in section 81 of Deasy’s Act.See paragraph 6.14 above.It is not clear whether this means that the rent is suspended only (ie it canbe recovered subsequently once the premises are rendered fit) or lostaltogether for the period of unfitness. The courts also held that a landlord138
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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 104 and 105: for sale. 14 This matter is again o
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Page 110 and 111: 6.13 To some extent the very limite
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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 130 and 131: on the landlord’s breach of repai
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Page 134 and 135: CHAPTER 9SERVICE CHARGES9.01 It has
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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 191 and 192: seems to have fallen into disuse. 1
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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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