Consultation Paper on the General Law of the Landlord and Tenant

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CHAPTER 2FORMALITIES2.01 This chapter is concerned with the various formalities whichthe law lays down with respect to tenancy agreements and leases.These are derived largely from statute but, before entering into adiscussion of them, some fundamental distinctions must be made. 1A Contracts and Grants2.02 It is important to distinguish between a “contract” for thegrant at some future date of a lease or tenancy and the actual “grant”of the lease or tenancy. The former comprises simply a preliminaryagreement, whereby the landowner (the prospective landlord)undertakes to grant the other party (the prospective tenant) a lease ortenancy at some future date. That agreement does not create the legalrelationship of landlord and tenant between the parties nor confer onthe prospective tenant any legal interest in the land in question. Thatrelationship will not arise, and the prospective tenant will not acquirehis or her tenancy or leasehold interest, until the landlord carries outthe agreement and makes the further grant of the lease or tenancycontemplated by the agreement. The most the prospective tenant mayacquire under the agreement is an equitable interest, under the socalledrule in Walsh v Lonsdale. 22.03 The reason why it is important to distinguish between acontract and grant is that it has long been accepted 3 that theformalities governing a contract for a lease or tenancy, on the onehand, and the actual grant of the lease or tenancy are different, ie,different statutory provisions apply. As is explained later, 4 contracts1234See generally Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths1998) Chapter 5.See ibid at paragraphs 15.19-23.Certainly since the decision in McCausland v Murphy (1881) 9 LR Ir 9.See Sheridan, “Walsh v Lonsdale in Ireland” (1952) 9 NILQ 190.Paragraph 2.06 below.33
for a lease or tenancy, like all other contracts for the sale or otherdisposition of an interest in land are governed by section 2 of theStatute of Frauds (Ireland) 1695. 5 The actual grant of a lease ortenancy is governed by section 4 of Deasy’s Act. 6 It is true that therewas some doubt on the point shortly after the enactment of Deasy’sAct, largely because section 3 rather confused matters by founding therelationship of landlord and tenant on the express or implied“contract” of the parties. Section 3 then went on to state that therelationship would be deemed to subsist in all cases in which therewas “an agreement” by one party to hold land from or under anotherin consideration of any rent. 7 However, the essential point is thatwhile Deasy’s Act repealed 8 section 1 of the 1695 Statute, which dealtwith grants of leases or tenancies, 9 it did not repeal section 2.Suggestions 10 that there was some sort of implied repeal wereeventually rejected as unsound 11 and there have since been numerousIrish cases accepting the proposition that contracts for leases ortenancies remain governed by the 1695 Statute. 122.04 The reference above to the confusion caused by the wordingof section 3 of Deasy’s Act 13 raises a more general issue to which the5678910111213See generally Farrell Irish Law of Specific Performance (Butterworths1994) Chapter 5; Wylie Irish Conveyancing Law (2 nd ed Butterworths1996) Chapter 6.See Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths 1998)paragraph 5.26 and following.The operation of section 3 was considered in detail in Chapter 1 above.Section 104 and Schedule (B).Requiring them to be in writing if for a term exceeding 3 years. Suchgrants are now governed by section 4 of Deasy’s Act: see paragraph 2.10below.See the judgment of Monahan CJ in Bayley v Conyngham (1863) 15 ICLR406 (especially at 413).Note the trenchant reasoning of Christian J in Bayley v Conyngham whichseems unassailable op cit at 416-417.Eg Leslie v Crommelin (1867) IR 2 Eq 134; Waldron v Jacob (1870) IR 5Eq 131; Ronayne v Sherrard (1877) IR 11 CL 146; McCausland v Murphy(1881) 9 LR Ir 9; Hughes v Fanagan (1891) 30 LR Ir 111.The confusion was compounded by the wording of section 4 of the Act,which was clearly intended to deal with the actual grant of a lease ortenancy: see paragraph 2.03 (and footnote 9) above. Section 4 refers to34
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 and 38: management of the said Railway arch
Page 39 and 40: the courts’ desire in the past to
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
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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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