Consultation Paper on the General Law of the Landlord and Tenant

“lands” as including lands of every tenure “whether corporeal orincorporeal”, ie the tenancy does not necessarily have to conferpossession of the land to which it relates. 41 It also seems clear that thefounding of the relationship on the agreement of the parties meantthat the Irish courts did not have to concern themselves with the needfor so-called “certainty of duration”. 42 The English courts ultimatelyconcluded that it was a common law requirement of a lease or tenancythat it should be for a term of certain duration 43 (ie, there is a definitedate when it will end) or a term capable of being rendered certain. 44Leases involving terms of uncertain duration have long beenrecognised by the Irish courts, such as the leases for the periods ofpeople’s lives once so common – leases for lives renewable for ever 45and leases for lives and a period of years combined. 46 The414243444546Such possession usually exists and, indeed, is often said to be a primarycharacteristic of a tenancy (see paragraph 1.19 below). Note also thatspecial legislation may rule out rights attaching to tenancies of incorporealhereditaments: see Brittas Fly Fishing Club Ltd v Aimitheor DeantoreachtTeoranta High Court 30 March 1993 (Cir App) (sporting club holdinglease to stock and fish a reservoir and to shoot game and wild-fowl notentitled to a sporting lease under the Landlord and Tenant Acts).Another consequence of founding the relationship on the parties’agreement was probably that the common law doctrine of interesse termini(ie, that the tenant did not acquire an interest until entering into possession)ceased to apply: see Furlong The Law of Landlord and Tenant asAdministered in Ireland (2 nd ed Edward Ponsonby 1869) Volume 1 at 27;Wylie op cit paragraph 2.24. The doctrine was abolished in England bysection 149(1) and (2) of the Law of Property Act 1925.See the House of Lords decision in Prudential Assurance Co Ltd v LondonResiduary Body [1992] 2 AC 386, approving Lace v Chantler [1944] KB368. This ruling has proved to be controversial: see Bright, “Uncertaintyin Leases – Is it a Vice?” (1993) LS 38; Sparkes “Certainty of LeaseholdTerms” (1993) 109 LQR 93. See also Canadian Imperial Bank ofCommerce v Bello (1991) 64 P & CR 48.The typical example of which is a periodic tenancy, eg a weekly, monthlyand yearly tenancy. Note, however, that the House of Lords in thePrudential case overruled earlier decisions involving uncertainty as towhen a notice terminating a periodic tenancy could be served, eg, ReMidland Railway Co’s Agreement [1971] Ch 725; Centaploy Ltd vMatlodge Ltd [1974] Ch 1; Ashburn Anstalt v Arnold [1989] Ch 1.For detailed discussion see Lyne Leases for Lives Renewable for Ever(Hodges and Smith 1837); also Wylie op cit paragraph 4.45.See Wylie op cit paragraph 4.46.13