Consultation Paper on the General Law of the Landlord and Tenant

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description as a “caretaker’s summons”. It entitles the owner of landto recover possession from any person put in possession bypermission of the owner as “servant, herdsman or caretaker”. TheCommission takes the view that a summary procedure to recoverpossession should be available against any permissive occupant,whether or not coming within those three categories. Apart from thata summary procedure to recover possession should be available tolandlords to cover a wide variety of situations where urgent action isrequired, 25 for example where tenants overhold 26 or abandon thepremises. 27 The Commission provisionally recommends that thesummary procedure for recovery of possession in sections 84-86 ofDeasy’s Act should be extended to all categories of permissiveoccupants and made available to landlords generally in cases whereurgent action is required.F On the Title15.07 An ejectment on the title is the action which should bebrought where it is claimed that the tenant has no title to thepremises. 28 The classic case is where the landlord claims to haveforfeited the lease. In theory it can also be used where the tenant hasceased to have any title, because the tenancy has ended by naturalexpiration or service of a notice to quit. 29 However, it is most usual inthe latter cases for an ejectment for overholding to be brought. Thereason for this is that an ejectment on the title cannot be brought inthe District Court, whereas an ejectment for overholding can. 30 In theformer case the civil bill or summons must be served on every personin actual occupation (or in receipt of rents and profits), 31 whereas inthe latter case service on persons in occupation as tenant or sub-tenant25262728293031Note the extension of the caretaker’s summons procedure to housingauthorities under sections 62, 107 and 118 of the Housing Act 1966.See paragraph 15.08 below.See paragraph 15.06 above.See Wylie op cit paragraph 27.08.See Chapter 13 above.Wylie op cit paragraph 27.13.Ibid paragraphs 27.09-10.183
is sufficient. 32 It is questionable whether these sort of distinctions arenecessary or appropriate and this confirms the Commission in its viewthat rationalisation 33 is needed and one common form of ejectmentshould replace all the current forms of ejectment. 34 To assist in itsdeliberations the Commission would welcome views on this matter.G Overholding15.08 As mentioned in the previous paragraph this is the form ofejectment action most commonly used nowadays. There are,however, a couple of features worth mentioning. One is that section76 of Deasy’s Act entitles the landlord in cases of “wilful”overholding to claim “double” rent for the period of overholding. Itwould appear that this is rarely done nowadays and the Commissionis not convinced that it is appropriate. The Commission provisionallyrecommends that the provision for double rent in cases of “wilful”overholding in section 76 of Deasy’s Act should be removed.15.09 Section 77 of Deasy’s Act provides that an action ofejectment for overholding may include a claim for “mesne rates”, ie,damages for trespass arising from the wrongful possession. It wouldappear that these are recoverable from the date the landlord demandedpossession to the date the order for possession is executed. 35 Yet inthe case of an ejectment for non-payment of rent apparently thelandlord can continue to claim the rent until the date possession isobtained. This may be significant because the existing rent may bewell below the current market rent, whereas the tendency nowadays isfor mesne rates or profits to be based on the current market rent ratherthan the former rent. 36 The Commission inclines to the view that inall cases the landlord should be entitled to rent only so long as thetenancy exists and, where a tenant wrongfully fails to vacate thepremises, mesne rates or profits based on the going market rent should3233343536Wylie op cit paragraphs 27.13-14.Paragraph 15.01 above.Paragraph 15.04 above.Meares v Redmond (1879) 4 LR Ir 533, 546 (per Palles CB). In anyreplacement legislation technical expressions like “mesne rents” or “mesneprofits” should be replaced by ones in plainer English, eg “damages”.Viscount Chelsea v Hutchinson [1994] 2 EGLR 61; Dean and Chapter ofCanterbury Cathedral v Whitbread plc [1995] 1 EGLR 82.184
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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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Notwithstanding use of the title
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CHAPTER 9SERVICE CHARGES9.01 It has
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in service charges, so as to ensure
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namely permissive, voluntary, ameli
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Page 170 and 171: D Sub-Tenants13.08 It may be conven
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Page 191: seems to have fallen into disuse. 1
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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
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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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