Consultation Paper on the General Law of the Landlord and Tenant

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was offered a tenancy he turned this down. Despite all this Peart Jconcluded that he had had a tenancy from the beginning. The judgeput much weight on the English authorities notwithstanding that theywere dealing with residential arrangements, whereas the Smith caseinvolved a commercial arrangement.1.30 The Commission would make a number of comments aboutthese two cases. First, it would appear to be extremely difficult toreconcile the judicial approaches: in Kenny Homes both Costello Pand the Supreme Court clearly put considerable weight on theprovisions of the agreement, as evidence of what the parties intended;in Smith Peart J disregarded the provisions of the agreement, eventhough he accepted that they did reflect exactly what the parties’intended. In that sense the approach adopted in Smith seems difficultto reconcile with section 3 of Deasy’s Act. 125 It is one thing toscrutinise the terms of an agreement in order to protect a party fromunfair advantage being taken by the other party through a weakbargaining position and to prevent “sham” transactions, but it is quiteanother to disregard terms which, the evidence confirms, reflect bothparties’ intention and understanding. This seems to be carrying thecourts’ supervisory function much too far and is difficult to squarewith the long-established principle that it is not the courts’ function torewrite commercial agreements. Furthermore, it is difficult toreconcile with Henchy J’s statement of the parameters of the judicialrole quoted earlier. 126 Perhaps the most questionable aspect of theapproach in Smith is that it put so little weight on the fact that theparties’ agreement was negotiated at arms length on their behalf bytheir own, independent professional advisers, including their lawyers.1.31 The Commission has concluded that the uncertainty thatnow exists in our law and practice as a result of such not easilyreconciled, decisions, should not be allowed to continue. The needfor some legislative guidance seems clear, but the question remains asto what form it should take. The Commission is not unsympathetic to125126It is, however, worth pointing out that the agreement in Smith containedmore clauses commonly found in leases than the agreements in KennyHomes (where, eg, there was no forfeiture clause or alienation clause). Yetin Smith the “landlord’s” solicitor had refused to allow a covenant for quietenjoyment to be included, on the basis that it was incompatible with a merelicence and the tenant’s solicitors conceded this.Paragraph 1.26 above.29
the courts’ desire in the past to prevent legislation designed to protecttenants from being easily circumvented by “sham” agreements draftedby one party and forced on the other on a “take it or leave it” basis.But there must surely be some evidence in the particular case tosuggest that such unfair advantage is being taken, or that a party isbeing deprived of rights which could be reasonably expected to arise.In circumstances such as existed in the Smith case it is difficult to seethat any such evidence existed; indeed, the evidence quite clearlysuggested otherwise. The Commission provisionally recommends thatnew statutory guidelines should require the courts to give effect to theexpress provisions of documents relating to the occupation or use ofland, provided each of the parties has had the benefit of independentlegal advice. If such advice has been received, there seems no reasonto distinguish between different categories of occupation, such asresidential and commercial. Where, however, no such advice hasbeen received, it should remain open to the court to disregard theterms of the agreement, but only if the evidence before it establishesthat it does not reflect accurately what all the parties intended.1.32 The question remains whether the statutory guidelinesshould go further than what is proposed in the previous paragraph andearlier paragraphs. 127 For example, taking into account the guidanceprovided by the case law, 128 the legislation might raise a presumptionthat a tenancy has been created wherever a party is granted exclusivepossession of land in return for payment of rent or some other form ofconsideration, but that this would be rebutted by evidence establishing(for example) that –(i) The parties had no intention to create legal relations; or(ii) The grant was made as an act of kindness, friendship orsimilar motive; or(iii) The grant was personal to the grantee; or(iv) A special relationship between the parties or specialcircumstances relating to them or the land or to the127128Ie paragraphs 1.20, 1.23, 1.24 and 1.25 above.See Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths 1998)Chapter 2.30
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 and 34: the nature of a tenant’s interest
Page 35 and 36: parties an intention which they nev
Page 37: management of the said Railway arch
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
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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
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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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