Consultation Paper on the General Law of the Landlord and Tenant

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they should be regarded as arrangements of a different kind, such aslicences. The Commission provisionally recommends, therefore, thatit should be made clear by statute that the universal rule is that atenancy does not exist unless the occupier of the land in question isobliged to pay rent or some other form of consideration in return forthe right to occupy. The legislation should, however, specify anexception to this rule to facilitate the continued creation of mortgagesby demise or sub-demise, but no other exceptions are contemplated.1.24 A point made in the previous paragraph raises the issue ofthe status of so-called tenancies “at will” and “at sufferance”. Atenancy at will has long been recognised by the courts, but they havehad considerable difficulty in determining its position in the law oflandlord and tenant. 101 In essence it involves occupation of land for anindefinite period, with either party entitled to end the arrangement atany time. 102 In its traditional form the relationship of landlord andtenant is said to exist, 103 yet it has often been stated that the “tenant”has no estate or interest in the land. 104 Again in its traditional form theoccupation by the tenant is rent free, 105 which is difficult to reconcilewith the requirements of Deasy’s Act. 106 Not surprisingly it was heldthat such a tenant had no protection under the Rent Restriction Acts. 107Given the Commission’s preliminary conclusions with respect to both101102103104105106107See Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths 1998)paragraph 4.21 and following.Ward v Ryan (1875) IR 10 CL 17.See Bellew v Bellew [1982] IR 447, 460 (per O’Higgins CJ). Note that themajority of the Supreme Court in that case (Griffin and Hederman JJ) heldthat the occupier was a licensee.Wright v Tracey (1874) IR 8 CL 478, 489 (per Fitzgerald J); Brew vConole (1875) IR 9 CL 151, 156 (per Dowse B).Payment of rent tends to lead the court to conclude that the tenancy is aperiodic tenancy, the category (weekly, monthly, etc) depending on howthe rent is calculated: see Fahy v O’Donnell (1870) IR 4 CL 332 (perKeogh J).Paragraph 1.22 above.Delany (Blanchardstown Mills Ltd) v Jones [1938] IR 826; Irish Sailors’and Soldiers’ Land Trust v Donnelly [1944] IR 464. See further on caselawinvolving the Irish Sailors’ and Soldiers’ Land Trust, Wylie op cit atparagraph 4.23.23
the nature of a tenant’s interest 108 and the need for rent or otherconsideration, 109 it must be queried whether a tenancy at will shouldcontinue to be regarded as creating the relationship of landlord andtenant. Indeed, the Commission is inclined to adopt the remarks ofMcCarthy J in Irish Shell & BP Ltd v Costello: 110 “A tenancy at will issomewhat of a misnomer if one gives to the cognate word ‘tenant’ theordinary meaning rather than its limited source meaning of ‘holder’.In truth a tenant at will is a person with a licence and no more than alicence to occupy.” 111 The Commission has reached the provisionalrecommendation that a tenancy at will should not be regarded ascreating the relationship of landlord and tenant and thatarrangements involving occupation of land rent free for indefiniteperiods should be regarded as a form of licence.1.25 What has been said above about a tenancy at will applies afortiori to a tenancy “at sufferance”. This has been described as “thelowest form of tenancy”, 112 but in truth it is not really a tenancy of anykind. Such a “tenancy” arises by operation of law only, when aperson who was a true tenant fails to vacate the demised premises atthe end of the tenancy and holds over without 113 the assent or dissentof the landlord. The only element which distinguishes such a “tenant”from an out-and-out trespasser is that the initial occupation under theoriginal, true tenancy was lawful. 114 But in all other respects the108109110111112113114Paragraph 1.16 above.Paragraph 1.23 above.[1984] IR 511, 523.Hence the tendency of the courts in recent times to construe occupation foran indefinite period as a licence rather than a tenancy at will: perO’Higgins CJ in Bellew v Bellew [1982] IR 447, 458. The development ofthe law relating to licences to occupy or use land in recent decades hasbeen substantial: see Wylie Irish Land Law (3 rd ed Butterworths 1997)chapter 20.Per FitzGibbon LJ in Holland v Chambers (No 1) [1894] 2 IR 442, 449.See also Palles CB at 448.If the holding over was with consent or agreement of the landlord, atenancy at will was often held to arise but more likely nowadays, a licencewould arise: see paragraph 1.24 above.Thus such a tenant may be liable at common law to a claim for use andoccupation rather than for damages for mesne profits, but this is acontroversial point: see Wylie Irish Landlord and Tenant Law (2 nd edButterworths 1998) paragraph 4.36.24
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 and 30: like lodgers, 83 hotel guests, 84 s
Page 31: landlord and tenant.” 96 This see
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:
Consultation <stro
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Consultation Paper on the General Law of the Landlord and Tenant

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