Consultation Paper on the General Law of the Landlord and Tenant

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14.04 The question remains whether there should be furtherrestrictions on the right of forfeiture, in particular, whether it shouldremain available in full force 8 in cases involving commercialpremises, effectively being, any premises not confined to use as adwelling. The Commission inclines to the view that it is a veryimportant remedy for landlords in commercial cases and that what isneeded is legislation to improve its effectiveness, rather than torestrict or abolish it. 9 The Commission provisionally recommends thatthe remedy of forfeiture should remain available to landlords ofproperties other than dwellings.14.05 The discussion in the remainder of this chapter proceeds onthe basis that the remedy of forfeiture will remain available tolandlords of commercial and mixed use properties. It deals withnumerous difficulties concerning the present law, including theprocedure for effecting a forfeiture, and the rights of interestedparties.B The Right of Forfeiture14.06 The common law rule is that, in the absence of an expressprovision for forfeiture or re-entry, the right exists only for a breachof a “condition” of the lease or tenancy. 10 It is rare nowadays toexpress obligations in a lease as “conditions”: usually they take theform of “covenants” and so it is important to provide expressly thatthe landlord may forfeit the lease and re-enter for breach ofcovenant. 11 It would be helpful to practitioners if the rule were thereverse, ie, that the right to forfeit and re-enter for breach ofobligation applies to all tenancies (including oral ones) unless it isexcluded by statute 12 or an express provision in the particular lease ortenancy agreement. The Commission provisionally recommends thatthe right of forfeiture and re-entry should apply to any breach of89101112Apart from restrictions where the tenant becomes insolvent: see paragraph14.03 above.Ie adopting the view ultimately reached by the English Law Commission:see paragraph 14.01 footnote 2 above.Doe d Henniker v Watt (1828) 8 B & C 308.Doe d Wilson v Phillips (1824) 2 Bing 13.See paragraphs 14.02-3 above.167
obligation by any tenant unless excluded by statute or an expressprovision.C Procedure14.07 The procedure to be followed by a landlord wishing toexercise the right to forfeit and re-enter is riddled with complexitiesand some uncertainty. One problem is that a distinction has to bedrawn between forfeiture for non-payment of rent and forfeiture forbreach of some other obligation. There are few formalities withrespect to the former; 13 in effect there is simply the common lawrequirement of a prior formal demand for the overdue rent, 14 but thatis usually dispensed with by the lease expressly allowing forfeiture insuch cases “whether formally demanded or not”. 15 There are nostatutory requirements such as are contained for the latter in section14 of the Conveyancing Act 1881. 16 The Commission is notconvinced that this distinction is justified any longer and inclines tothe view that all forfeitures should be required to follow the same,albeit much simplified, procedure. The Commission has reached thepreliminary conclusion that the same, much simplified, procedureshould apply to all forfeitures, whatever the nature of the breach ofobligation.14.08 The procedure laid down in section 14 of the ConveyancingAct 1881 for breaches other than non-payment of rent suffers from anumber of complexities. One is that there are various exceptionswhich have been modified over the years, 17 where the landlord doesnot have to follow the statutory procedure. These relate to covenantsor conditions relating to mining leases and where the tenant becomesbankrupt or goes into liquidation and the property involves1314151617This is one reason why other payments, such as service charges andinsurance premiums, are reserved as “additional rent”. See paragraph 9.01above.Bary v Glover (1859) 10 ICLR 113.See the precedents in Division L of Laffoy’s Irish ConveyancingPrecedents (Looseleaf Butterworths).A view accepted by Carroll J in Re Erris Investments Ltd [1991] ILRM377.See section 2 of the Conveyancing Act 1892 and section 35 of the Landlordand Tenant (Ground Rents) Act 1967.168
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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
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8.04 Section 42 of Deasy’s Act do
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until the last gale day of the curr
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Page 130 and 131: on the landlord’s breach of repai
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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 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 175: very small rent. The Residential Te
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Page 183 and 184: ent and other payments may be accum
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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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Page 211 and 212: Chapter 11 Insurance18.73 The Commi
Page 213 and 214: 18.82 The Commission recommends tha
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Page 218 and 219: APPENDIXLIST OF LAW REFORM COMMISSI
Page 220 and 221: Working Paper No 1
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Page 224 and 225: 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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