Consultation Paper on the General Law of the Landlord and Tenant

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elationship of landlord and tenant otherwise retained its traditionalcharacteristics. Thus the rent payable was held still to be a rent“service” which automatically attracted the remedy of distress. 64 Inmore recent times the argument that section 3 changed the commonlaw other than as expressly stated was rejected in the context of anassignment of the grantee’s interest under a fee farm grant creatingthe relationship of landlord and tenant. 65 Since this involved aconveyance of a fee simple estate, it was held that appropriate wordsof limitation should be used. 66 The Commission’s preliminaryconclusion is that, notwithstanding section 3 of Deasy’s Act, a leaseor tenancy should continue to be regarded as creating an estate orinterest in the land in the tenant.1.17 Two further points should be mentioned in this context.One is that it has been argued from time to time that section 3 is not a“universal” provision, ie, that it simply determines whether the rest ofthe Act’s provisions apply to a particular lease or tenancy. It does notprevent the creation of the relationship outside the Act, which will begoverned by the pre-existing common law and to which the Act mayor may not apply. 67 The reference to the relationship being “deemed”to be founded on the parties’ contract may be argued to support thisview, 68 but the tenor of the rest of the wording seems to militateagainst it. In particular, if the section had such a limited scope, onemight have expected to see included in it limiting words such as “Forthe purposes of this Act ...”. 69 There is no authority on the point toprovide guidance and the Commission is concerned that the notion ofa dual system of tenancies coming within Deasy’s Act and tenanciesnot within it, but governed by the old common law, is a recipe foruncertainty and confusion. The Commission has reached the646566676869Gordon v Phelan (1881) 15 ILTR 70. See also Attorney General v Wilson(1893) 31 LR Ir 28, 48-53 (per Palles CB).See paragraph 1.12 above.Re Courtney [1981] NI 58.See, eg, in respect of the requirement for rent (see further paragraph 1.21below) Hadden and Trimble Northern Ireland Housing Law (SLS LegalPublications (Northern Ireland) 1986) at 27. See also Lyall Land Law inIreland (2 nd ed Round Hall Sweet & Maxwell 2000) at 577; Pearce andMee Land Law (2 nd ed Round Hall Sweet & Maxwell 2000) at 141.Wylie op cit paragraph 2.10.Ibid.17
preliminary conclusion that any re-enactment or replacement ofsection 3 of Deasy’s Act should be a provision of universalapplication, that is, applying to all tenancies, and should say soexplicitly.1.18 In a recent English case, in the House of Lords 70 it wasstated that a lease simply describes the relationship between twoparties and, somewhat surprisingly, is not concerned with the questionwhether an estate or proprietary interest binding third parties has beencreated. 71 Thus it was held that a body, which itself had only a licenceto use property, had created a tenancy in favour of a person it had letinto temporary occupation of part of the property. Yet because thegrantor did not itself have an estate or interest in the land (it had alicence only), it was recognised that the “tenant” in occupation hadnone – nemo dat quod non habet. 72 Nevertheless, the tenant was heldentitled to claim statutory rights attaching to tenants and not to otheroccupiers of land. 73 The Commission has considerable doubts aboutthe reasoning in this case 74 and even more doubts about policyconsiderations relating to the application of statutory rights. 75 It alsoseems to raise the prospect of the courts recognising another type ofdual system of tenancies, namely those which create an estate orinterest in the tenant and those which do not, but which confer someattributes of a tenancy of an uncertain scope. Again the Commissionregards this as a recipe for uncertainty and confusion. 76 TheCommission has reached the preliminary conclusion that Irish law70717273747576Bruton v London and Quadrant Housing Trust [2000] 1 AC 406.See especially the speech of Lord Hoffmann.A person cannot give to someone else what that person does not hold.Implied repairing obligations on landlords under section 11 of the EnglishLandlord and Tenant Act 1985.For discussion, which also contains some criticism, see Rook [1999] Conv517; Morgan [1999] Conv 493; Routley (2000) 63 MLR 424. See alsoEvans and Smith The Law of Landlord and Tenant (6 th ed Butterworths2002) at 10.In particular it seems clear that the result was the reverse of what all theparties involved intended or contemplated: see further paragraph 1.29below.The Commission is not, therefore, in favour of a provision such as thatcontained in section 35 of the British Columbia Landlord and Tenant Act,RSBC 1979 (c 207): see paragraph 1.10 footnote 34 above.18
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 and 24: Commission’s preliminary conclusi
Page 25: 1.15 It might be thought that the I
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
Page 75 and 76: 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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Consultation Paper on the General Law of the Landlord and Tenant

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