Consultation Paper on the General Law of the Landlord and Tenant

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overholding tenant is a trespasser and treated as such by the generallaw. Thus it would appear that time runs against the landlord underthe Statute of Limitations from the moment the tenancy arises. 115 The“tenant” has no estate or interest in the land 116 and no relationship oflandlord and tenant in any meaningful form would seem to exist. 117The Commission has reached the preliminary conclusion that itshould be confirmed that a tenancy at sufferance does not create therelationship of landlord and tenant.G The Parties’ Agreement1.26 Perhaps the most controversial aspect of section 3 ofDeasy’s Act is how far the statement that the relationship of landlordand tenant “shall be deemed to be founded on the express or impliedcontract of the parties” should be taken literally. At first sight thissuggests that it is the intention of the parties, as exhibited by theiragreement, which should be the paramount consideration. To someextent the Irish courts have accepted this proposition, but over theyears a somewhat inconsistent approach has emerged. There aremany judicial statements to the effect that the issue of whether or nota particular arrangement for occupation of land amounts to a tenancyshould be regarded by the court as a matter of construing theagreement entered into by the parties. 118 This may involve scrutiny ofany written agreement they may have entered into or consideration ofthe evidence relating to any oral agreement. Furthermore, this isoften said to be a subjective matter, in the sense that the court istrying to discern what those particular parties actually agreed. AsHenchy J put it in Irish Shell & BP Ltd v Costello Ltd (No 2): “In allcases it is a question of what the parties intended, and it is notpermissible to apply an objective test which would impute to the115116117118Wylie op cit paragraph 4.39. Cf a tenancy at will, where time does not rununtil after expiration of one year from its commencement, unlesspreviously determined: section 17(1) of the Statute of Limitations 1957.Jones d Gash v Cotter (1830) 2 Hud & Br 203; Segrave v Barber (1855) 5ICLR 67.Wylie op cit paragraph 4.34.Whipp v Mackey [1927] IR 372; Gatien Motor Co Ltd v Continental Oil Coof Ireland Ltd [1979] IR 406; Irish Shell & BP Ltd v Costello Ltd (No 1)[1981] ILRM 66; Governors of the National Maternity Hospital vMcGouran [1994] 1 ILRM 521.25
parties an intention which they never had.” 119 However, it isquestionable how far the courts have heeded this warning.1.27 What appears to have influenced many judges in the past isthe danger that a landowner, perhaps taking advantage of a superiorbargaining position, may persuade, if not force, an occupier to sign anagreement which purports to create one type of relationship ratherthan another. Often the motive will be to prevent the occupierobtaining statutory protection or rights which apply to a tenant, butnot to other occupiers, such as a licensee. 120 Thus the courts haveoften been astute to identify “sham” agreements and to look at thesubstance of what has been entered into, rather than the wording orform. 121 Such a judicial attitude is perfectly understandable andentirely consistent with the notion that the courts should seek toadvance the purpose of legislation such as the old Rent RestrictionActs and Landlord and Tenant Acts. However, it is arguable that theprocess has gone too far and has resulted in considerable uncertaintyin the law and practice.1.28 The difficulties which have arisen may be illustrated byreference to two recent cases: Kenny Homes & Co Ltd v Leonard 122and Smith v CIE. 123 These both involved commercial arrangements.In Kenny Homes the operations of a garage and adjacent car park hadoccupied the premises for some 35 years under a series of “hiring andlicence” agreements. In Smith the operator of a shop in a railwaystation had entered into a 10-year “licence” agreement negotiated byhis legal advisers with the owner’s legal advisers. What is interestingis to compare key clauses in the written agreements under scrutiny bythe courts in the two cases:119120121122123[1984] IR 511, 517.See paragraph 1.07 above.See cases cited in footnote 118 above. This principle was also the basis ofthe House of Lords leading decision in England, Street v Mountford [1985]AC 809.High Court 11 December 1997; Supreme Court 18 June 1998.High Court 9 October 2002 (Circuit Appeal).26
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 and 32: landlord and tenant.” 96 This see
Page 33: the nature of a tenant’s interest
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
Page 82 and 83: 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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