Consultation Paper on the General Law of the Landlord and Tenant

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