Consultation Paper on the General Law of the Landlord and Tenant

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perfectly consistent with the relation of landlord and tenant that thetenant should hold rent free.” 90 However, that case involved alandowner seeking to maintain an action for use and occupationagainst a purchaser who remained in possession after an abortive sale.Such an action proceeds on the basis that there is an impliedagreement that the occupier should pay a reasonable sum equivalentto rent. 91 The court ruled that no such implied agreement existed inthe circumstances of that case and that the overholding abortivepurchaser was really a licensee. 921.22 More recently the issue arose in Irish Shell & BP Ltd vCostello Ltd, 93 which concerned whether the licence agreement underwhich a petrol station was operated constituted a tenancy. Under thisagreement the operator (described as “the Hirer”) paid hiring fees foruse of petrol tanks and pumps, machinery and other items suppliedwith the premises. It was argued that since there was no payment of“rent”, there could be no tenancy within section 3 of Deasy’s Act.The majority of the Supreme Court held that the fees were insubstance rent and that the agreement did create the relationship oflandlord and tenant. 94 However, Kenny J dissented on this view of thefees and, holding they were not rent, ruled that no such relationshiphad been created because of section 3 of Deasy’s Act. Quoting bothsections 1 95 and 3 of the Act he stated quite firmly: “But the paymentof rent is, in Ireland, an essential for the creation of the relationship of909192939495Corrigan v Woods (1867) IR 1 CL 73, 75.This common law rule was given statutory recognition in section 46 of theDeasy’s Act: Wylie op cit paragraph 12.13. See also paragraph 8.15below.Pigot CB stated: “If it was a licence to hold without rent, no action lies:and is not what is done when a person is let into possession under anabortive sale a licence to hold without rent?” Ibid.[1981] ILRM 66.Per Griffin J op cit at 71 (O’Higgins CJ concurring). Note that Griffin Jexpressly referred to the Deasy’s Act argument and did not dispute itsvalidity in principle; his decision was based on a different view of thenature of the fees (ie, that they were in substance rent).The definition of both “rent” (see paragraph 1.21 above) and “lease” (ie“any instrument in writing, whether under seal or not, containing a contractof tenancy in respect of any lands in consideration of a rent or return.”).21
landlord and tenant.” 96 This seems to be the only explicit judicialstatement of such a positive nature. Other judicial statements tendonly to refer to the presence or absence of payments in the nature ofrent as being important factors to be taken into consideration indetermining whether or not a tenancy has been created. 971.23 Clearly this uncertainty should be removed. TheCommission’s inclination is to adopt the view of Kenny J, firmlyrooted, as it is, in the provisions of Deasy’s Act. Furthermore, indoing so, the Commission would reiterate the view expressed earlier 98that it is important that any statutory provision replacing Deasy’s Actshould be of universal application. It would create further uncertaintyif a common law relationship of landlord and tenant could existindependently of, and not complying with the requirements of, thestatutory relationship. However, the Commission does recognise thatin certain situations a lease (or demise) is used essentially as aconveyancing device. When so used it will often lack many of theattributes of a traditional lease or tenancy, such as the payment ofrent. The obvious example of this is a mortgage by demise or subdemise,where the mortgagee does not want to have an outrightconveyance or assignment of the mortgagor’s interest. 99 If this is thefreehold interest of a fee farm grantee 100 or a leasehold interest, themortgagee will not want to incur the mortgagor’s liability to pay thefee farm or leasehold rent. The Commission would not wish to castany doubt on the validity or efficacy of such well-establishedconveyancing practice. Otherwise, however, it takes the view thatoccupational arrangements not involving any payment of rent or otherforms of consideration should not be regarded as tenancies. Rather96979899100Op cit at 72.See, eg, Hurly v Hanrahan (1867) IR 1 CL 700, 715 (per O’Brien J);Whipp v Mackey [1927] IR 372, 382 (per Kennedy CJ); Gatien Motor CoLtd v Continental Oil Co of Ireland Ltd [1979] IR 406, 415 (per Griffin J)and 421 (per Kenny J); Kenny Homes & Co Ltd v Leonard High Court(Costello P) 11 December 1997 (affirmed by Supreme Court 18 June1998); Ó Siodhachain v O’Mahony High Court (Kearns J) 31 October2002.Paragraph 1.17 above.See Wylie Irish Land Law (3 rd ed Butterworths 1997) paragraphs 12.34and 12.37.Ibid Chapter 4.22
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
Page 27 and 28: preliminary conclusion that any re-
Page 29: like lodgers, 83 hotel guests, 84 s
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
Page 77 and 78: need to have statutory provisions t
Page 79 and 80: 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
Page 226 and 227:
Report on Occupiers’ Liability (L
Page 228 and 229:
Report on Privacy: Surveillance and
Page 230 and 231:
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Consultation Paper on the General Law of the Landlord and Tenant

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