Consultation Paper on the General Law of the Landlord and Tenant

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CHAPTER 11INSURANCE11.01 The issue of insurance is an important one for both thelandlord and tenant. 1 The landlord needs to protect the demisedpremises, which are usually a very valuable asset and investment, andthe tenant needs to ensure that the place which is the tenant’s home orplace of business is protected. How insurance and, in particular, anyobligations to take out different categories of insurance are allocatedas between the parties is currently largely a matter for agreementbetween the parties. There are, however, some statutory provisionswhich are relevant and in need of some consideration. There is alsothe question whether some additional statutory provisions would beappropriate. 2A Landlord and Tenant (Ground Rents) Act 196711.02 Section 30 of the Landlord and Tenant (Ground Rents) Act1967 3 is designed to prevent landlords of tenants holding under alease which qualifies for a reversionary lease 4 requiring tenants totake out building insurance with a specified insurer or someone elseselected or approved by the landlord. Instead any express provisionin the lease 5 to this effect is varied so as to permit the tenant to insurewith any insurer holding for the time being an assurance licence underthe Insurance Act 1936. It is not possible to contract out of thisprovision. 6 The Commission considers this to be a useful provisionwhich should be extended to all tenants. The Commission123456See Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths 1998)Chapter 16.See also in relation to landlord’s obligations paragraphs 6.20-21 above.As amended by section 44 of the Landlord and Tenant (Amendment) Act1980.Under Part III of the 1980 Act.Or in any “ancillary or collateral” agreement.Section 33 of the 1967 Act.141
provisionally recommends that the protection conferred on certainlessees by section 30 of the Landlord and Tenant (Ground Rents) Act1967, concerning freedom to seek insurance cover, should beextended to all tenants.B Deasy’s Act11.03 Deasy’s Act does not deal directly with insurance, but thereis one provision which has a bearing on the subject, namely section40. That section confers on the tenant a right to surrender the tenancywhere the dwelling house or other building constituting the“substantial matter” of the demise “shall be destroyed, becomeruinous and uninhabitable, or incapable of beneficial occupation orenjoyment, by accidental fire or other inevitable accident, and withoutthe default or neglect of the said tenant”. To some extent this wasearly statutory recognition of a form of the doctrine of frustration. 711.04 It is crucial to note, however, that the section does not applywhere the lease or tenancy agreement contains “an express covenantor agreement binding on the tenant to repair” the building. Mostcommercial leases, being in the typical “FRI” (full repairing andinsurance) form, will contain such a repairing covenant. However,since the tenant will usually also be paying for insurance cover, eitherdirectly or by way of reimbursement of premiums paid by thelandlord, 8 it is usual for the repairing covenant to exclude repairsrelating to damage coming within the “insured risks”. 9 The point isthat it would be grossly unfair that the tenant should pay the cost ofinsurance designed to cover repairs and also have to meet the cost ofthose same repairs. What has caused much debate amongstpractitioners is whether such an exclusion in the repairing covenantnullifies its effectiveness to exclude the operation of section 40, ie theexception of an obligation to carry out repairs in respect of uninsuredrisks results in there being no covenant or agreement to repair withinthe meaning of the section. If it were so construed, thereby entitlingthe tenant to surrender the lease, it would defeat the whole purpose of789See on this doctrine paragraph 12.12 below.Eg where the landlord in a multi-let development arranges a “block” policycovering the entire development.See the precedents in Division L.2 of Laffoy’s Irish ConveyancingPrecedents (Looseleaf Butterworths).142
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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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(2) consumer protection; (3) defaul
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subject was discussed in the <stron
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Page 102 and 103: CHAPTER 6LANDLORD’S OBLIGATIONS6.
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
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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
Page 141 and 142: section 42 implied obligation shoul
Page 143 and 144: sensible provisions, which are usua
Page 145 and 146: against “unreasonable withholding
Page 147 and 148: obligations by the landlord, 50 is
Page 149: (e)(f)(g)Should the remedy apply to
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Page 157 and 158: 12.03 Merger is a doctrine of gener
Page 159 and 160: eiterates the recommendation of leg
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
Page 185 and 186: obtainable from the court in which
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
Page 196: CHAPTER 16LIMITATION OF ACTIONS16.0
Page 199 and 200: 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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