Consultation Paper on the General Law of the Landlord and Tenant

More documents

Recommendations

Info

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
Page 84 and 85:
tenant. Often an item installed in
Page 86 and 87:
A Common Law4.09 Originally at comm
Page 88 and 89:
parties’ agreement. Furthermore,
Page 90 and 91:
fixtures. Given that this is subjec
Page 92:
(viii) it should also be made clear
Page 95 and 96:
(2) consumer protection; (3) defaul
Page 97 and 98:
subject was discussed in the <stron
Page 99 and 100:
already covered by modern legislati
Page 102 and 103:
CHAPTER 6LANDLORD’S OBLIGATIONS6.
Page 104 and 105:
for sale. 14 This matter is again o
Page 106 and 107:
may not be a point of much substanc
Page 108 and 109:
how far the Irish courts will follo
Page 110 and 111:
6.13 To some extent the very limite
Page 112 and 113:
of the Residential Tenancies Bill 2
Page 114 and 115:
6.19 It was mentioned earlier that
Page 116 and 117:
E Landlord’s Identity and Agent6.
Page 118 and 119:
CHAPTER 7TENANT’S OBLIGATIONS7.01
Page 120 and 121:
CHAPTER 8RENT AND OTHER PAYMENTS8.0
Page 122 and 123:
8.04 Section 42 of Deasy’s Act do
Page 124 and 125:
until the last gale day of the curr
Page 126 and 127:
one. 33 Disputes as to the new rent
Page 128 and 129:
overholding. 47 The Commission prov
Page 130 and 131:
on the landlord’s breach of repai
Page 132 and 133:
Notwithstanding use of the title
Page 134 and 135:
CHAPTER 9SERVICE CHARGES9.01 It has
Page 136:
in service charges, so as to ensure
Page 139 and 140:
namely permissive, voluntary, ameli
Page 141 and 142:
section 42 implied obligation shoul
Page 143 and 144:
sensible provisions, which are usua
Page 145 and 146:
against “unreasonable withholding
Page 147 and 148:
obligations by the landlord, 50 is
Page 149 and 150:
(e)(f)(g)Should the remedy apply to
Page 151 and 152:
provisionally recommends that the p
Page 153 and 154:
whether, in the absence of an expre
Page 155 and 156:
(e)(f)Tenant to be liable for incre
Page 157 and 158:
12.03 Merger is a doctrine of gener
Page 159 and 160:
eiterates the recommendation of leg
Page 161 and 162:
should be any distinction as to the
Page 163 and 164:
12.11 There is one further, somewha
Page 166 and 167:
CHAPTER 13NOTICE13.01 Service of a
Page 168 and 169:
comprehensive and exhaustive, in th
Page 170 and 171:
D Sub-Tenants13.08 It may be conven
Page 172:
13.11 As indicated in the recommend
Page 175 and 176:
very small rent. The Residential Te
Page 177 and 178:
obligation by any tenant unless exc
Page 179 and 180:
y one joint tenant is sufficient to
Page 181 and 182:
“reasonable time” may vary from
Page 183 and 184:
ent and other payments may be accum
Page 185 and 186:
obtainable from the court in which
Page 187 and 188:
mortgage it should have power to de
Page 189 and 190:
a tenancy of a dwelling could not b
Page 191 and 192:
seems to have fallen into disuse. 1
Page 193 and 194:
is sufficient. 32 It is questionabl
Page 196:
CHAPTER 16LIMITATION OF ACTIONS16.0
Page 199 and 200:
1707 Administration of Justice Act
Page 201 and 202:
the occupier of the land in questio
Page 203 and 204:
set of statutory provisions governi
Page 205 and 206:
comprehensively with part assignmen
Page 207 and 208:
(ii) take the form of a scheme of
Page 209 and 210:
y the landlord thereby making it cl
Page 211 and 212:
Chapter 11 Insurance18.73 The Commi
Page 213 and 214:
18.82 The Commission recommends tha
Page 215 and 216:
the original sub-tenancy or mortgag
Page 218 and 219:
APPENDIXLIST OF LAW REFORM COMMISSI
Page 220 and 221:
Working Paper No 1
Page 222 and 223:
Report on the Liability in Tort ofM
Page 224 and 225:
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
show all

Consultation Paper on the General Law of the Landlord and Tenant

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?