Consultation Paper on the General Law of the Landlord and Tenant

12.03 Merger is a doctrine of general application 9 and applieswherever the one person or body acquires a greater and lesser estateor interest in the same land, with no intermediate estate or interest stillin place to prevent a merger. In essence the doctrine is now basedupon equitable principles 10 designed to uphold the intention of theparties, in particular the acquiring party. Although it is not alwayseasy to predict what view a court would take in a particular case, thebasic underlying principle is that there is a presumption that a mergerof a lesser estate or interest in the greater one takes place unless thecircumstances of the particular case rebut this. 11 Yet practitioners areoften uncertain as to whether, for instance, a declaration of “merger”or “non-merger” should be included in the deed bringing about thevesting of two estates or interests in the one person, for instance, atenant buying out the landlord’s reversion. The Commission takes theview that it would be helpful to practitioners to provide statutoryguidance, in effect a statutory presumption. However, it should bemade clear that where such a merger takes place, any rights, includingstatutory rights, previously attaching to the lesser (leasehold) estateare preserved. The Commission provisionally recommends that thereshould be a statutory presumption that where a greater and lesserestate in land vest in the same person or body, without anyintermediate estate or interest being outstanding, a merger takesplace, unless the instrument bringing about the vesting contains anexpress provision to the contrary; such a merger should not prejudiceany rights, including statutory rights, previously attaching to thelesser (leasehold) estate.12.04 It was realised a long time ago that a merger could causeproblems in the landlord and tenant context. In particular, where subtenanciesexist, the position of the sub-tenants was uncertain wherethe head-tenant acquired the head-landlord’s interest. If there was nodeclaration of non-merger of the head tenancy in the head-landlord’sreversionary interest, the danger was that the sub-tenanciesdisappeared with the head-tenancy. 12 This doubt was resolved by9101112See Wylie Land Law (3 rd ed Butterworths 1997) Chapter 24.Reinforced by section 28(4) of the Supreme Court of Judicature (Ireland)Act 1877.See Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths 1998)paragraphs 25.20-22.There was neither privity of contract nor privity of estate between the148