Consultation Paper on the General Law of the Landlord and Tenant

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