Consultation Paper on the General Law of the Landlord and Tenant

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This area of the law does not seem to require further consideration inthe context of landlord and tenant law.12.08 Another meaning concerns the right of the Official Assigneeto disclaim “onerous property” where the tenant has been declaredbankrupt. 22 A similar right exists in the liquidator of a companytenant which has gone into liquidation. 23 The likelihood is that theinsolvent tenant’s tenancy will be disclaimed because of thecontinuing obligations involved. The Commission does not considerit necessary to review such well-settled law in the present context, 24but there is one point to which attention may be drawn. It wouldappear that there is some doubt as to the effect of a disclaimer in suchcases, where there are no third party interests which are protected. 25In the case of bankruptcy of an individual tenant it seems clear thatthe disclaimer terminates the lease and the landlord is left to prove inthe bankruptcy for any outstanding debts (eg rent arrears). 26 Yet inthe case of liquidation of a company tenant it has been suggested thaton disclaimer the tenancy becomes bona vacantia vesting in theMinister for Finance under the State Property Act 1954. 27 It wasfurther suggested that if the Minister then also disclaims the tenancy itvests in the landlord. 28 The Commission is not convinced that there22232425262728Section 56 of the Bankruptcy Act 1988.Section 290 of the Companies Act 1963.Note that Keane J’s views on the position of a guarantor following such adisclaimer given in Tempany v Royal Liver Trustees Ltd [1984] ILRM 273were later accepted as correct by the House of Lords in Hindcastle Ltd vAttenborough Associates Ltd [1996] 1 All ER 737.Eg sub-lessees: see Wylie op cit paragraphs 26.07 and 26.10.Per Keane J in Tempany v Royal Liver Trustees Ltd [1984] ILRM 273 at288. This is, of course, without prejudice to any guarantee provisions,which may require the guarantor to take on an equivalent tenancy: seeprecedents in Division L of Laffoy’s Irish Conveyancing Precedents(Looseleaf Butterworths).Tempany v Royal Liver Trustees Ltd [1984] ILRM 273 at 288. The sameapplies where a company is struck off the Companies Register undersection 311 of the Companies Act 1963 and section 12 of the Companies(Amendment) Act 1982.Tempany v Royal Liver Trustees Ltd [1984] ILRM 273 There was also thesuggestion in Keane J’s judgment that if the landlord then resumespossession, this would effect a surrender by operation of law. However,surrender presupposes an agreement between the parties whereas151
should be any distinction as to the effect of a disclaimer on insolvencydepending on whether the tenant is an individual or a company. TheCommission provisionally recommends that the position followingdisclaimer of the tenancy on insolvency of the tenant should beclarified and that there should be no distinction between an individualand company tenant. In both cases, unless there are third partyinterests to be protected, the tenancy should be regarded asterminated and the landlord should be left to make claims in theinsolvency.12.09 Yet another meaning of “disclaimer” concerns the obscure,medieval doctrine of “denial of title”. This has links to the concept offorfeiture, 29 in that such a denial or disclaimer by the tenant mayentitle the landlord to elect to treat the tenancy as, in effect, forfeited.The place of this doctrine in modern landlord and tenant law isunclear, especially since Deasy’s Act, and it was called into questionby the Supreme Court in O’Reilly v Gleeson. 30 In that case the Courtdrew a distinction between disclaimer “on the record” (ie, inpleadings in court proceedings) and “by act in pais” (ie, without resortto proceedings). The Court seemed prepared to countenanceapplication of the doctrine to the former, 31 but was firmly of the viewthat no disclaimer by act in pais should be recognised except byinvoking an express right of re-entry on the basis of a breach ofcovenant by the tenant. The one exception to this was considered tobe a periodic tenancy, in the sense that if the tenant denied thelandlord’s title this had the effect of depriving the tenant of the usualright to a notice to quit before the tenancy ended. 32 Notwithstandingthe Supreme Court’s efforts to reconcile the medieval concept withmodern landlord and tenant law, the Commission is not convincedthat it succeeded. In particular it is difficult to square survival of thedoctrine with the fundamental notion introduced by section 3 ofDeasy’s Act that the relationship of landlord and tenant is based upon29303132disclaimer is a unilateral act, per Carroll J in Re Erris Investments Ltd[1991] ILRM 377, 379. Arguably a better view is that the vesting in thelandlord results in a merger: see paragraph 12.04 above.See further Chapter 14 below.[1975] IR 258. See Wylie op cit paragraphs 24.02-6.See also Wallace v Daly & Co Ltd [1949] IR 352, in which varying viewswere expressed by different judges.See Chapter 13 below.152
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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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CHAPTER 6LANDLORD’S OBLIGATIONS6.
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for sale. 14 This matter is again o
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may not be a point of much substanc
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how far the Irish courts will follo
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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
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Page 149 and 150: (e)(f)(g)Should the remedy apply to
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Page 157 and 158: 12.03 Merger is a doctrine of gener
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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 175 and 176: very small rent. The Residential Te
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Page 181 and 182: “reasonable time” may vary from
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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
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Page 199 and 200: 1707 Administration of Justice Act
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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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