Consultation Paper on the General Law of the Landlord and Tenant

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should retain the notion that all tenancies confer an estate or interestin the tenant and that legislation should make it clear that the absenceof this will prevent the relationship of landlord and tenant fromarising.E Exclusive Possession1.19 It has long been recognised by the courts on both sides ofthe Irish Sea 77 that “exclusive possession” of the premises occupied isa characteristic of a tenancy. 78 It is important to appreciate that this isnot a conclusive criterion. The point is, as explained by Kenny J, 79that, while a tenancy cannot exist unless the person claiming to be thetenant can establish exclusive possession of the premises occupied, itis now recognised that occupiers of land who are not tenants maynevertheless have exclusive possession, or at least, have some degreeof exclusive occupation rights. 80 In this sense the concept of“possession” is a somewhat elusive one and it has been argued thatthere may be a distinction between “legal” possession strictly definedand other forms of possession or occupation which fall short of this. 81The distinction may lie in the degree of “control” or “dominion” overthe premises retained by the grantor or conferred on the grantee. 82Thus while many occupiers of property may have what looks likeexclusive use or occupation of premises, albeit often for a limitedperiod, if the owner retains control of the premises they will not betenants. This explains the many cases involving non-tenant occupiers777879808182The leading authority on the matter in England is the speech of LordTempleman giving the opinion of the House of Lords in Street vMountford [1985] AC 809. See also AG Securities Ltd v Vaughan andAntoniades v Villiers, both reported at [1990] 1 AC 417.Gatien Motor Co Ltd v Continental Oil Co of Ireland Ltd [1979] IR 406.Ibid at 420.In the Gatien case Kenny J thought that the occupier had “possession”, butwas a caretaker rather than a tenant: ibid at 421. See also Davies v Hilliard(1965) 101 ILTR 50 (caretaker with possession).See Wylie op cit paragraph 2.36.See, eg, Governors of National Maternity Hospital v McGouran [1994] 1ILRM 521 (hospital entitled to change the venue of a coffee shop withinthe hospital).19
like lodgers, 83 hotel guests, 84 servants and employees, 85 and hirers ofpremises for special events. 861.20 The result of the case law is that the concept of exclusivepossession, as explained in the previous paragraph, is treated by thecourts as a negative criterion only. 87 Its absence in a particular casewill rule out a tenancy, but its presence will not necessarily result in aruling in favour of a tenancy. Its presence will simply be regarded asone factor, but not necessarily the determining one, pointing to atenancy. 88 The Commission has concluded that this is a sensible viewfor the courts to adopt, given the multifarious types of occupationalarrangements made in respect of land. It has, therefore, reached thepreliminary conclusion that any statutory guidelines should notinclude the requirement of exclusive possession.F Rent1.21 It has been a matter of considerable controversy whether thereservation of “rent” is a necessary requirement for a tenancy. 89 Thisstems partly from the reference in section 3 of Deasy’s Act to anagreement by one party to hold land from or under another “inconsideration of any rent.” And “rent” is defined in section 1 of theAct as “any sum or return in the nature of rent payable or given byway of compensation for the holding of any land.” The issue hasrarely been addressed directly by the courts. In an early case decidedshortly after the enactment of Deasy’s Act, Pigot CB stated: “It is83848586878889Waucob v Reynolds (1850) 1 ICLR 142.Carroll v Mayo County Council [1967] IR 364, 367 (per Henchy J).Moore v Doherty (1843) 5 Ir LR 449; Great Southern Railways v Bergin(1937) 71 ILTR 276.Kelly v Woolworth & Co Ltd [1922] 2 IR 5; Boylan v Dublin Corporation[1949] IR 60.See Wylie op cit paragraphs 2.35-36.Per Griffin J in the Gatien case op cit at 414. See also Barron J in Texaco(IR) Ltd v Murphy High Court 17 July 1991, at 9.See Wylie op cit paragraphs 2.37-38. Similar controversy has arisen inEngland owing to Lord Templeman’s reference to rent in the leading caseof Street v Mountford [1985] AC 809. However, the courts there havesince confirmed that a gratuitous lease is valid: see Ashburn Anstalt vArnold [1989] Ch 1.20
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 and 26: 1.15 It might be thought that the I
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Page 31 and 32: landlord and tenant.” 96 This see
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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
Page 77 and 78: 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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Consultation <stro
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Consultation Paper on the General Law of the Landlord and Tenant

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