Consultation Paper on the General Law of the Landlord and Tenant

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“bilateral” in nature, ie they are regarded as mutually dependent uponeach other.1.14 The most significant aspect of the bilateral nature ofcontractual obligations is that it leads to the principle that if one partybreaches an obligation which is regarded as fundamental, or engagesin what amounts to a repudiation of the contract, the other party maytreat this as excusing further performance of the contract, ie, withoutresort to court action the latter may act as if discharged from thecontract. 52 Yet according to traditional landlord and tenant law theparties’ obligations are independent, so that, for example, a breach bythe landlord of repairing obligations does not discharge the tenantfrom the obligation to pay rent. 53 Thus it was held in 1996 that atenant could not withhold his rent because of a breach of obligationby the landlord. 54 This is a matter which is taken up in a later chapter,in the context of enforcement of obligations. 55 In passing it may benoted that the English courts, without the benefit of Deasy’s Act, haverecently been taking the view that a lease or tenancy should beregarded as essentially a contractual relationship in this respect. 56Thus they have been prepared to hold that a tenant may “disclaim orrescind” (ie act as discharged from) the tenancy where the landlordsufficiently derogates from the grant, or is guilty of a sufficientlyserious breach of obligation, as to amount to a repudiation of thetenancy. 57 It remains to be seen whether the Irish courts will followthis approach. 5852535455565758See Clark op cit at 427; McDermott op cit at 1069.Corkery v Stack (1947) 82 ILTR 60.Riordan v Carroll [1996] 2 ILRM 263, 275 (per Kinlen J).Paragraph 10.16 below.Thus, since one cannot enter into a contract with oneself, it has been heldthat a lease to oneself renders the covenants unenforceable (see Rye v Rye[1962] AC 496 at 513 per Lord Denning). However, a valid lease may begranted to a nominee: Ingram v IRC [1999] 2 WLR 90.Hussein v Mehlman [1992] 2 EGLR 97 (residential tenancy); CharteredTrust plc v Davies [1997] 2 EGLR 83, cf Nynehead Developments Ltd vRH Fibreboard Containers Ltd [1999] 1 EGLR 7 (both commercialleases).Note that the specific provision in section 89 of the Ontario Landlord andTenant Act, RSO 1980, c 232 (“Subject to this Part, the common law rulesrespecting the effect of the breach of a covenant by one party to a contract15
1.15 It might be thought that the Irish courts would be inclined topursue the contractual approach partly because of the apparent “breakfrom the past” made by section 3 of Deasy’s Act expressly stating thatthe relationship is no longer founded on “tenure or service”. 59 Itmight even be argued that this returned leases or tenancies to theiroriginal purely contractual status unrecognised by the old feudalsystem. However, it is difficult to sustain this argument for severalreasons. One obvious reason is that it deprives the tenant of any“estate” or “interest” in the land, which would run counter to many ofthe other provisions in Deasy’s Act. Indeed, several other sections inthe Act expressly refer to the tenant’s “estate or interest”. 60Furthermore, the essence of having an “estate” or “interest” in theland is that it is an asset with proprietary characteristics and notpurely a personal right. It can, therefore, be assigned or passed on toa third party. 61 This too Deasy’s Act recognises in its provisionsgoverning rights and obligations under the lease or tenancy passing tosuccessors in title. 621.16 What judicial authority there is supports the view that alease or tenancy retains “proprietary” characteristics despite section 3of Deasy’s Act. In the decades immediately following its enactmentthe consensus emerged that, although it clearly changed some things,particularly some technical features of the common law, 63 the5960616263on the obligation to perform by the other party apply to tenancyagreements”) does not appear to have had much impact, nor has a similarone in section 42 of the British Columbia Landlord and Tenant Act, RSBC1979, c 207. The Canadian courts have been reluctant to accept what areperceived as “self-help” remedies and reform bodies have declined torecommend resort to them: see British Columbia Law Reform CommissionReport on Landlord and Tenant Relationship: Residential Tenancies(1973) at 97; Ontario Law Reform Commission Report on Landlord andTenant Law Applicable to Residential Tenancies (1976) at 126-127. Thiswas also the conclusion of the Northern Ireland Land Law Working Group:see Final Report (HMSO 1990) Volume 1 at 259-261. This matter is takenup later: see paragraph 10.18 below.See paragraph 1.10 above.Eg sections 7 (surrenders) and 9-16 (assignments). See further Chapter 2below.See paragraph 1.03 above.Sections 12 and 13. See further Chapter 3 below.See paragraph 1.12 above.16
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 and 22: after its enactment there were nume
Page 23: Commission’s preliminary conclusi
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
Page 73 and 74: 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
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Report on Privacy: Surveillance and
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