Consultation Paper on the General Law of the Landlord and Tenant

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D Sub-Tenants13.08 It may be convenient at this point to consider the positionof sub-tenants where the head-tenancy is terminated by a notice toquit or, in the case of a fixed term head-tenancy, by exercise of abreak or some other option. 22 The position seems to be that in suchcases any sub-tenancy is automatically terminated also, 23 without anyredress for the sub-tenants unless provided by statute. 24 This is to becontrasted with the position where a head-tenancy is surrendered orbought out by the landlord (so that it merges with the landlord’sreversion). 25 The reasoning seems to be that a surrender (or merger)involves a bilateral act between the landlord and head-tenant, whichthe sub-tenants could not be expected necessarily to anticipate. Forthis reason the common law took the view that sub-tenants shouldhave protection and this was given statutory recognition in the RealProperty Act 1845. 26 Similarly, where the head-tenancy is terminatedby the landlord forfeiting it for breach of obligation by the headtenant,the courts again took the view that innocent sub-tenants shouldhave protection. This led to the principle of sub-tenants being entitledto apply for equitable relief against the forfeiture. This too wassubsequently given some statutory recognition. 2713.09 Unlike in the case of surrender, a notice to quit is said to bea unilateral act which is the standard way of terminating a periodictenancy and of which any sub-tenant must be taken to have beenaware. The problem may occur, however, in particular cases that thesub-tenant is not, in fact, aware of the nature of the head-tenancy,which may have arisen by implication many years previously.Furthermore, the existing law facilitates collusion between thelandlord and head-tenant whereby they can act together to get rid ofthe sub-tenant, ie, a notice to quit to determine the head-tenancy (andthereby the sub-tenancy) can be served and then, after it expires, a222324252627See paragraph 13.01 above.See the recent discussion by the House of Lords in Barrett v Morgan[2000] 1 All ER 481. See also the Court of Appeal in Pennell v Payne[1995] 2 All ER 592.See paragraph 13.11 below.See Chapter 12 above.Section 9: see paragraphs 12.04 and 12.06 above.Section 4 of the Conveyancing Act 1892. See paragraph below.161
new tenancy can be granted to the head-tenant unencumbered by anysub-tenancy. The same position seems to apply in the case ofterminating the head-tenancy by exercise of a break or other option.It was even held in a recent English case that the parties cannot makeexpress provision to counter this, eg a provision in the break option inthe head-tenancy to the effect that, upon its exercise, any sub-tenancyis to remain in place. 2813.10 The Commission has some doubts about whether thereasoning in the English case law is entirely satisfactory, especiallywhere there is the risk of collusion between the landlord and headtenant.It is arguable that in some cases considerable hardship will becaused to a sub-tenant who has acted in good faith. Instead of havinga rigid rule that sub-tenancies are automatically destroyed withoutredress, it is arguable that at least an equitable jurisdiction in thecourts should be available, analogous to that developed in cases offorfeiture. 29 On that basis, whenever a head-tenancy is terminated bya notice to quit or exercise of a break or other option, it would beopen to any sub-tenant to apply for relief and to the court todetermine, as in a case of forfeiture, what form that relief should take.It would be up to the court to lay down what the future relationshipbetween the head-landlord and sub-tenants should be. 30 In passing theCommission notes that the Residential Tenancies Bill 2003 containsprovisions designed to protect sub-tenants, where a head-tenancy isterminated by a notice of termination under the Act. 31 TheCommission provisionally recommends that, where a head-tenancy isterminated by a notice to quit or exercise of a break or other option, itshould be open to any sub-tenant to apply to the court for equitablerelief to be granted at the discretion of the court, unless the position isgoverned by some other statutory provision.28293031PW & Co v Milton Gate Investments Ltd [2003] EWHC 1994. One of thegrounds given by Neuberger J for adopting this ruling in the case was theabsence of an equivalent of section 9 of the 1845 Act (paragraph 13.08above) to indicate the future relationship of the landlord and sub-tenants.There would be neither privity of contract nor privity of estate.Paragraph 13.08 above.This would overcome the difficulty perceived by Neuberger J in the MiltonGate case: see footnote 28 above.Section 32 and Schedule. Note also sections 69-71 (notice procedureswhere sub-tenancies exist).162
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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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6.13 To some extent the very limite
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of the Residential Tenancies Bill 2
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6.19 It was mentioned earlier that
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E Landlord’s Identity and Agent6.
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CHAPTER 7TENANT’S OBLIGATIONS7.01
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Page 122 and 123: 8.04 Section 42 of Deasy’s Act do
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Page 134 and 135: CHAPTER 9SERVICE CHARGES9.01 It has
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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 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 211 and 212: Chapter 11 Insurance18.73 The Commi
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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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