Consultation Paper on the General Law of the Landlord and Tenant

after its enactment there were numerous judicial statementsemphasising its limited effect on the law. 37 What is even morestriking is the fact that there is so little reference to the section in thecase law of the past century. 38 This raises the issue of whether theprovision should be retained, whether as it stands or in some modifiedform. What follows is a summary of what appear to have been thepractical consequences of the section and an assessment of itscontinued worth.1.12 Some practical consequences were clear from the languageof the section and have had a substantial impact on the law. In earliertimes the removal of the need for the landlord to retain a “reversion”facilitated so-called “middlemen” grants, ie, sublettings made bylandlord’s agents for the whole of the unexpired term of the headtenancy.39 This blurring of the distinction between an outrightassignment of a tenancy and the grant of a subtenancy is much lesscommon nowadays, if it ever occurs. Of more lasting significancewas the removal of the need to retain a reversion. This gave impetusto the making of fee farm grants which became so common in the past150 years and remain so in modern times. Most such grants create therelationship of landlord and tenant between the grantor and grantee,even though the grantee holds a freehold (fee simple) estate. Also oflasting significance is the fact that Deasy’s Act also facilitated thegranting of tenancies of minor rights, such as fishing, shooting andother sporting rights. 40 This was because section 1 of the Act defined3637383940had, if anything, even less impact: see Ontario Law Reform Commission,Report on Landlord and Tenant Law Applicable to Residential Tenancies(1976) at 5. See also footnote 37 below.For detailed discussion of this see Wylie op cit paragraph 2.07 andfollowing.Eg Christian J in Bayley v Marquis of Conyngham (1863) 15 ICLR 406,417 and in Chute v Busteed (1865) 16 ICLR 222, 244. See also O’Hagan Jin the latter at 235-236. Cf the views of the judges on the Ontarioprovision (footnote 33 above): Kennedy v Agricultural Development Board[1926] 4 DLR 717, 59 OR 374; Royal Bank v Lambton Loan andInvestment Co [1941] 2 DLR 643, [1941] OR 56.For examples of the very few references to the section in relatively moderntimes see Levingston v Somers [1941] IR 183 and Irish Shell & BP Ltd vCostello Ltd [1981] ILRM 66.See Seymour v Quirke (1884) 14 LR Ir 455.See Bayley v Marquis of Conyngham (1863) 15 ICLR 406.12