Consultation Paper on the General Law of the Landlord and Tenant

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CHAPTER 14FORFEITURE14.01 The law relating to the landlord’s right to forfeit a lease ortenancy for breach of obligation by the tenant is fraught withcomplexity and uncertainty. 1 The Commission has concluded thatsome radical reform is needed and this chapter includes numerousrecommendations. The first issue which must be addressed, however,is whether the remedy should survive at all, 2 given its draconian effecton the tenant and the possibility that it can be exercised, on occasion,without the landlord obtaining any court order. 3A Statutory Restrictions14.02 It is important to note that there already exist some statutoryrestrictions on the landlord’s right to forfeit a lease or tenancy by reentry.Section 27(1) of the Landlord and Tenant (Ground Rents) (No2) Act 1978 renders unenforceable a right of re-entry for non-paymentof a ground rent in respect of a dwellinghouse whose lessee is entitledto acquire the fee simple under that Act. 4 The reason is, no doubt,that it was considered inappropriate or disproportionate to permit alandlord to take back property, which in substance belongs to thetenant, on the basis of a failure to pay what would invariably be a1234See Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths 1998)Chapter 24.The English Law Commission has changed its position over the decades,ranging from proposing replacing the remedy with a scheme requiring acourt “termination order” in all cases (Law Com No 142 (1985) –Forfeiture of Tenancies), to drafting a Bill which dropped the idea ofenabling a tenant to obtain a termination order for the landlord’s breach ofobligation (Law Com No 221 (1994) – Termination of Tenancies Bill) toproposing retention of the landlord’s right to effect a “peaceable” re-entrywithout a court order in the case of commercial tenancies (<strong>Consultation</strong>Document (1998) – Termination of Tenancies by Physical Re-Entry).See further on “peaceable” re-entry paragraph 14.16 below.On this right see Wylie op cit Chapter 31.165
very small rent. The Residential Tenancies Bill 2003 would introducea much wider restriction of the remedy in the case of tenancies ofdwellings. Under section 57(1) of the Bill such a tenancy would beterminated only by following the procedures for termination laiddown 5 and could not be terminated “by means of a notice offorfeiture, a re-entry or any other process or procedure”. It wouldclearly not as yet be appropriate for the Commission to comment onsuch proposals being promoted by the Government.14.03 Section 49 of the Bankruptcy Act 1988 renders a forfeitureprovision in a lease to an individual tenant void as against the OfficialAssignee, so as to stop the landlord using it to deprive the bankrupttenant’s creditors of a claim to the leasehold interest. It is not entirelyclear whether this also renders ineffective peaceable re-entry, asopposed to one following the obtaining of a court order. It is arguablethat such a re-entry does not involve the invocation of a “remedy” orcommencement of “proceedings” within section 136 of the 1988 Act. 6If that view were adopted it would seem to be a serious flaw in theprotection which the 1988 Act intended to give the tenant’s creditors.The point ought to be clarified. Another point which ought to beclarified is the position where the tenant is a company which becomesinsolvent. There appears to be no equivalent of section 49 in thecompanies legislation, 7 so that a landlord is free to invoke the right ofre-entry. The Commission provisionally recommends that it should bemade clear that section 49 of the Bankruptcy Act 1988 cannot becircumvented by a peaceable re-entry and that an equivalent ofsection 49 ought to apply in the case of a company tenant going intoliquidation.567Part 5.This was the view taken by the English courts of the equivalent provisionin the Insolvency Act 1986 (section 285): see Razzaq v Pala [1997] 1 WLR1336; Re Lomax Leisure Ltd [1999] 3 All ER 22.It is not clear that a forfeiture is a “disposition” of the company’s propertyrendered void by section 218 of the Companies Act 1963, or an“attachment, sequestration, distress or execution” rendered void by section219. A peaceable re-entry would not appear to be “proceedings” which thecourt may stay or restrain under section 217 or an “action or proceeding”which needs the leave of the court under section 222 after a winding-uporder has been made.166
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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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CHAPTER 8RENT AND OTHER PAYMENTS8.0
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
Page 136: in service charges, so as to ensure
Page 139 and 140: namely permissive, voluntary, ameli
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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 161 and 162: should be any distinction as to the
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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 177 and 178: obligation by any tenant unless exc
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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 199 and 200: 1707 Administration of Justice Act
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Page 211 and 212: Chapter 11 Insurance18.73 The Commi
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Page 218 and 219: APPENDIXLIST OF LAW REFORM COMMISSI
Page 220 and 221: Working Paper No 1
Page 222 and 223: 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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