Consultation Paper on the General Law of the Landlord and Tenant

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an FRI lease. For this reason practitioners usually take the precautionof inserting in the lease a waiver of section 40. 10 All this makes forcomplicated drafting and constitutes a potential trap for the unwarypractitioner. The obvious solution is to amend section 40 to make itclear that it also does not apply where repairs to the destroyed orbadly damaged premises are covered by insurance paid for orcontributed to by the tenant. The Commission provisionallyrecommends that a covenant or agreement excepting an obligation todo repairs relating to “insured risks” should still exclude the tenant’sright of surrender under section 40 of Deasy’s Act.11.05 This leads to another issue which may arise, namely whereinsurance cover exists and the premises are destroyed or badlydamaged, can either the landlord or the tenant insist upon theproceeds being used to reinstate or repair the premises? This may bea particular issue for the tenant where the landlord arranges theinsurance and it is in the landlord’s name, but the tenant has paid forit.11.06 In England, it was provided by the Fires Prevention(Metropolis) Act 1774 that one party can require the other party’sinsurance company to expend the proceeds on reinstatement 11 and,despite its title, this was held to apply outside London. 12 Indeed, itwas regarded as one of the “statutes of general application” adoptedin several former British colonies. 13 But the view was expressed inIreland that “we have no corresponding enactment in this country”. 14In particular, it was held that the landlord had no right to require thetenant to expend insurance proceeds on reinstatement and had to relyupon the tenant’s covenant to repair. 15 It must, therefore, be doubted101112131415See the precedents in Division L.2 of Laffoy’s Irish ConveyancingPrecedents (Looseleaf Butterworths).Section 83.Ex parte Goreley (1864) 4 De G J & S 477.Eg Canada: Canadian Southern Railways v Phelps (1884) 14 SCR 132 andPort Coquitlam v Wilson (1923) SCR 235; New Zealand: Hunter v Walker(1888) 6 NZLR 690.Andrews v Patriotic Assurance Co of Ireland (No 2) (1886) 18 LR Ir 355,366 (per Palles CB). See also Brady v Irish Land Commission [1921] 1 IR56, 64 (per O’Connor MR).Per Palles CB op cit at 368.143
whether, in the absence of an express provision for application ofinsurance proceeds on repairs or reinstatement, the Irish courts wouldfollow the English courts in their approach to cases where thelandlord has received the insurance proceeds but the tenant hasdirectly or indirectly paid for the insurance. The English courts hadheld that in such circumstances the tenant can require the landlord toapply the insurance proceeds on reinstatement; either by regarding thelandlord as, in effect, insuring for the joint benefit of both parties 16 orby implying an obligation by the landlord to exercise rights conferredby the insurance so as to preserve the tenant’s interests. 17 This matterought to be clarified.11.07 The Commission takes the view that in cases coming withinsection 40 of Deasy’s Act, ie destruction or damage rendering thepremises uninhabitable or incapable of beneficial occupation orenjoyment, through no fault of the tenant, the tenant should beentitled, as an alternative to surrendering the lease, to requireinsurance proceeds received by the landlord to be expended onreinstatement of the premises. If the landlord has failed to insure thepremises whether in breach of obligation or not, 18 the tenant shouldstill have the right to surrender. Where the premises cannot bereinstated, for instance because planning permission is refused, thetenant should again be entitled to surrender, but the landlord, who isleft with the destroyed premises, should be entitled to keep anyinsurance proceeds. The Commission provisionally recommends thatthe tenants coming within section 40 of Deasy’s Act should be entitledto require that insurance proceeds be used to reinstate the premises,as an alternative to surrender. If no insurance proceeds areavailable, or if the premises cannot be reinstated, the tenant shouldstill have the right of surrender, but in the latter case, the landlordshould be entitled to any insurance proceeds which are available.C Other Legislation11.08 The question remains whether other legislative provisionswould be appropriate. The Commission noted earlier that section161718Mumford Hotels Ltd v Wheler [1985] QB 755.Varal Ltd v Security Archives Ltd (1989) 60 P & CR 258.Ie even in cases where the tenant has provided the money, but the landlordhas failed to take out the requisite insurance.144
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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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already covered by modern legislati
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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
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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
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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
Page 141 and 142: section 42 implied obligation shoul
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Page 145 and 146: against “unreasonable withholding
Page 147 and 148: obligations by the landlord, 50 is
Page 149 and 150: (e)(f)(g)Should the remedy apply to
Page 151: provisionally recommends that the p
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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
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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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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