Consultation Paper on the General Law of the Landlord and Tenant

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“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
Commission’s preliminary conclusion is that such practicalconsequences of section 3 of Deasy’s Act have been beneficial and soshould be retained as part of the law in Ireland.1.13 There may have been other consequences of section 3 ofDeasy’s Act, but they are not so clear. One upon which there hasbeen some controversy is whether the founding of the relationshipupon the agreement of the parties means that principles of contractlaw apply. In reviewing the equivalent provision in that part ofCanada, 47 the Ontario Law Reform Commission suggested that itcould be construed as incorporating into landlord and tenant lawcontractual principles hitherto of at least doubtful application. 48 Onewas the doctrine of frustration of contract which until recently wasthought not to apply to leases. 49 In more recent times the courts onboth sides of the Irish Sea have come round to the view that there isno reason, in principle, why it should not apply. 50 Another was theprinciple that a party to a contract seeking damages for breach ofcontract is obliged to mitigate the loss suffered. The traditional viewhas always been that a landlord is not obliged, for example, to takeaction to recover possession from a tenant in order to minimise thedamage which may occur if the tenant continues to ignore repairingobligations. 51 Perhaps the most interesting principle raised by theOntario Commission was the notion that contractual obligations are4748495051See paragraph 1.10 and footnote 33 above.Report on Landlord and Tenant Law Applicable to Residential Tenancies(1976) at 5. For further discussion of the Ontario Report see the NorthernIreland Land Law Working Group’s Landlord and Tenant DiscussionDocument No 3 (HMSO 1982) at 9-19 and Final Report (HMSO 1990)Volume 1 at 253-263.See the doubts expressed by Black J in Groome v Fodhla Printing Co Ltd[1943] IR 380, 413-414; note also the mixed views of the House of Lordsin Cricklewood Property & Investment Trust Ltd v Leightons InvestmentTrust Ltd [1945] AC 221.Neville & Sons Ltd v Guardian Builders Ltd [1995] 1 ILRM 1, approving(without reference to section 3 of Deasy’s Act) the views of the House ofLords in National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC675. See further on this contractual doctrine Clark Contract Law inIreland (4 th ed Round Hall Sweet & Maxwell 1998) at 439; McDermottContract Law (Butterworths 2001) Chapter 20.This may not apply once the tenancy has expired: see Watkins, Jameson &Pim Ltd v Stacey & Harding (1961) 95 ILTR 122.14
Page 6 and 7: Landlord and Tenant Law Working Gro
Page 8 and 9: E Landlord’s Identity and Agent .
Page 10: INTRODUCTION1. This is the second <
Page 14 and 15: CHAPTER 1THE RELATIONSHIP OF LANDLO
Page 21: after its enactment there were nume
Page 25 and 26: 1.15 It might be thought that the I
Page 27 and 28: preliminary conclusion that any re-
Page 29 and 30: like lodgers, 83 hotel guests, 84 s
Page 31 and 32: landlord and tenant.” 96 This see
Page 33 and 34: the nature of a tenant’s interest
Page 35 and 36: parties an intention which they nev
Page 37 and 38: management of the said Railway arch
Page 39 and 40: the courts’ desire in the past to
Page 42 and 43: CHAPTER 2FORMALITIES2.01 This chapt
Page 44 and 45: Commission has previously drawn att
Page 46 and 47: paragraph, such an arrangement woul
Page 48 and 49: Deasy’s Act should be dropped fro
Page 50 and 51: the judges of the old Exchequer Cha
Page 52 and 53: within the purview of the Landlord
Page 54 and 55: seems to be inconsistent with the c
Page 56 and 57: E Surrenders2.21 Section 7 of Deasy
Page 58 and 59: premises, the alternative of a new
Page 60 and 61: espect to the part not surrendered.
Page 62 and 63: CHAPTER 3SUCCESSORS IN TITLE3.01 Th
Page 64 and 65: section 10 of the Conveyancing Act
Page 66 and 67: prescribe that a particular tenant
Page 68: not clear how far statute law has c
Page 71 and 72: 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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section 42 implied obligation shoul
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sensible provisions, which are usua
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against “unreasonable withholding
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obligations by the landlord, 50 is
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(e)(f)(g)Should the remedy apply to
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provisionally recommends that the p
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whether, in the absence of an expre
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(e)(f)Tenant to be liable for incre
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12.03 Merger is a doctrine of gener
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eiterates the recommendation of leg
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should be any distinction as to the
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12.11 There is one further, somewha
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CHAPTER 13NOTICE13.01 Service of a
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comprehensive and exhaustive, in th
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D Sub-Tenants13.08 It may be conven
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13.11 As indicated in the recommend
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very small rent. The Residential Te
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obligation by any tenant unless exc
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y one joint tenant is sufficient to
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“reasonable time” may vary from
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ent and other payments may be accum
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obtainable from the court in which
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mortgage it should have power to de
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a tenancy of a dwelling could not b
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seems to have fallen into disuse. 1
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is sufficient. 32 It is questionabl
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CHAPTER 16LIMITATION OF ACTIONS16.0
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1707 Administration of Justice Act
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the occupier of the land in questio
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set of statutory provisions governi
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comprehensively with part assignmen
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(ii) take the form of a scheme of
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y the landlord thereby making it cl
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Chapter 11 Insurance18.73 The Commi
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18.82 The Commission recommends tha
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the original sub-tenancy or mortgag
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APPENDIXLIST OF LAW REFORM COMMISSI
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Working Paper No 1
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Report on the Liability in Tort ofM
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Eleventh (Annual) Report (1989) (Pl
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Report on Occupiers’ Liability (L
Page 228 and 229:
Report on Privacy: Surveillance and
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