Consultation Paper on the General Law of the Landlord and Tenant

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the property and about what should be done with goods found on thepremises belonging to the tenant and other persons. All this calls intoquestion whether peaceable re-entry should be retained.14.17 The sort of “self-help” remedy which peaceable re-entryinvolves has been the subject of much criticism 41 in England, where,nevertheless, the Law Commission there has concluded in its latestpronouncement that it ought to be kept as an “effective managementtool” for landlords of commercial properties. 42 Given the currentdelays which exist in obtaining a court order for possession in Ireland,there is little doubt that landlords here would echo that view. It isimportant therefore to address those difficulties, because if a solutionto these were to be found the need for a self-help remedy may begreatly reduced.14.18 The difficulties concerning the obtaining of a court order forpossession stem from a number of factors. One is that, if peaceablere-entry cannot be achieved, and this must involve actual physical reentry,43 such an order must be obtained. This necessitates bringing anejectment action, but the law relating to the various actions ofejectment is riddled with complexity. This subject is dealt with in thenext chapter, 44 but the following points are relevant in the presentcontext.14.19 In Bank of Ireland v Lady Lisa Ireland Ltd 45 it was ruled thatan ejectment action 46 to recover possession on the basis of a forfeiturecannot be commenced by a summary summons, but must be begun bya plenary summons, where the action has to be pursued in the HighCourt. This may involve considerable delay and meanwhile arrears of414243444546Note the views of the former chairman of the English Law Commission inKataria v Safeland plc [1998] 05 EG 155, 157 (per Brooke LJ). See alsothat Commission’s earlier pronouncements referred to in footnote 2 above.Termination of Tenancies by Physical Re-entry: A Consultative Document(1998) paragraphs 1.6-1.9.Mere service of the forfeiture notice is not enough: Bank of Ireland v LadyLisa Ireland Ltd [1992] 1 IR 404.Chapter 15 below.[1992] 1 IR 404.Technically it should be an ejectment on the title, but an ejectment foroverholding is commonly used: see Wylie op cit paragraphs 24.18 and27.08.173
ent and other payments may be accumulating, which may not berecovered. 47 By contrast if the case comes within the jurisdiction ofthe Circuit Court, the landlord may apply for a summary judgment,notwithstanding the entering by the tenant of an appearance ordefence. 48 This contrast in the procedures is clearly unsatisfactory.What is most unsatisfactory is the fact that landlords may be kept outof the property for a substantial period, 49 while substantial losses areaccumulating. The Commission inclines to the view that theprocedure for effecting a forfeiture requires a radical overhaul andconsiderable rationalisation.14.20 One way in which some of the problems referred to in thepreceding paragraphs might be dealt with would be to give muchgreater legal status to the forfeiture notice served on the tenant. Whatthe Commission has in mind is a new statutory form of notice toreplace the section 14 forfeiture notice and to operate in respect of allbreaches of obligation by a tenant, including non-payment of rent. 50This new notice, which might be called a Notice of Re-entry, wouldnotify the tenant of the breach of obligation and that the landlord isinvoking the right to forfeit the tenancy. In addition to serving thenotice on the tenant it would be required that it be lodged with theCounty Registrar (if the case comes within the Circuit Courtjurisdiction) or in the High Court. That lodgement would effect theforfeiture and, if the tenant did not give up possession on the basis ofthis, it should be open to the landlord to issue summary proceedingsfor possession. 51 It should also be open to the tenant to enter adefence or to lodge monies in court or to give a suitable undertakingto comply with obligations. This sort of procedure should providelandlords with a reasonably speedy and effective remedy, while at thesame time giving the tenant an opportunity of redemption. It is also4748495051An ejectment for non-payment of rent is a different remedy altogether (notconcerned primarily with forfeiture) and, in any event, suffers from its ownproblems: see paragraphs 8.19 above and 15.04 below.See paragraph 14.20 below.At the time of writing it can take two years or more before a plenaryhearing in a contested case is heard in the High Court.See paragraph 14.07 above.Applications should be by motion, similar to applications for a planninginjunction under section 160 of the Planning and Development Act 2000.Chapter 15 proposes a radical overhaul of ejectment actions.174
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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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one. 33 Disputes as to the new rent
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overholding. 47 The Commission prov
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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 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 185 and 186: obtainable from the court in which
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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
Page 196: CHAPTER 16LIMITATION OF ACTIONS16.0
Page 199 and 200: 1707 Administration of Justice Act
Page 201 and 202: the occupier of the land in questio
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Page 207 and 208: (ii) take the form of a scheme of
Page 209 and 210: y the landlord thereby making it cl
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
Page 222 and 223: Report on the Liability in Tort ofM
Page 224 and 225: Eleventh (Annual) Report (1989) (Pl
Page 226 and 227: Report on Occupiers’ Liability (L
Page 228 and 229: Report on Privacy: Surveillance and
Page 230 and 231: Consultation <stro
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