Consultation Paper on the General Law of the Landlord and Tenant

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Commission has previously drawn attention. 14 This is the fact that theterminology used even by lawyers is bedevilled with a similarconfusion. Thus it is common to find expressions like “contract oftenancy”, “tenancy agreement” and “lease agreement” used in relationto an arrangement which is not a contract or agreement in the senseused above (and so is not governed by section 2 of the Statute ofFrauds), but rather is the actual grant of a lease or tenancy (and so isgoverned by section 4 of Deasy’s Act). The Commission is of theview that it would prevent much confusion if such expressions wereavoided both in practice and, most certainly, in legislation. Theexpression “contract” or “agreement” should be confined to thesituation where only a preliminary contract or agreement for thefuture grant of a lease or tenancy is being entered into. Theexpressions “lease” or “tenancy” (without any accompanyingreference to a contract or agreement) should be confined to thesituation where a lease or tenancy (creating the relationship oflandlord and tenancy) has been granted. This is, of course, withoutprejudice to the underlying principle that the relationship, once it hasbeen created by such a grant, remains founded on the agreement ofthe parties. The consequences of that principle were discussed in theprevious chapter.2.05 The Commission also drew attention to the sometimesconfusing use of expressions like “landlord” and “tenant”, “lessor”and “lessee” and “lease” and “tenancy”. 15 It reiterates its view thatconfusion would be avoided if the expressions “landlord”, “tenant”and “tenancy” were regarded as the generic terms. The expressions“lessor”, “lessee” and “lease” should then be confined to situationswhere the tenancy has been created by a written document. TheCommission provisionally recommends that any new legislation onlandlord and tenant law should reflect the use of more preciseterminology along the lines suggested above.1415every “lease or contract” (emphasis added): see paragraph 2.11 below.<strong>Consultation</strong> <strong>Paper</strong> on Business Tenancies (LRC CP21–2003) paragraph4.04.Paragraphs 2.04 and 2.05 above.35
B Contracts2.06 As indicated earlier, 16 a contract for a lease or tenancy isgoverned by section 2 of the Statute of Frauds (Ireland) 1695. Suchcontracts are relatively rare in the context of residential tenancies,where the tendency is for the parties, at least with tenancies for arelatively short fixed period or periodic tenancies, to move directly toan immediate grant of the tenancy. 17 They are, however, morecommon in the context of commercial property, particularly where anew development, such as a shopping centre or office block, isinvolved. Here it may suit the parties to enter into an initial contract,which creates a commitment on both sides, but allows time forvarious matters 18 to be sorted out before the actual lease itself isgranted.2.07 The essence of section 2 of the 1695 Statute is that itrequires a contract for the grant of any kind of tenancy to beevidenced in writing. 19 Thus the statutory requirements must be metwhether or not any written formalities apply to the subsequent grantof the tenancy itself. For example, a tenancy for six months may begranted orally, 20 but a contract entered into now by a landownerwhereby it is agreed that the other party will be granted on somefuture date a tenancy for six months must be evidenced in writing inaccordance with section 2. Of course, as mentioned in the previous1617181920Paragraph 2.03 above.Contracts were common in earlier times where a long lease of residentialproperty was being granted, eg, a building lease subject to a ground rent.But such leases were prohibited by section 2 of the Landlord and Tenant(Ground Rents) Act 1978: See Lyall Land Law in Ireland (2 nd ed RoundHall Sweet & Maxwell 2000) at 652; Wylie Irish Land Law (3 rd edButterworths 1997) paragraphs 4.092 and 18.24.Eg fitting out of the premises, employment of staff, organisation of stockand equipment: see Wylie Irish Landlord and Tenant Act (2 nd edButterworths 1998) paragraph 5.04.It is, of course, a pre-requisite of the application of section 2 that theparties have entered into a “contract”, ie the usual common lawrequirements for a contract must have been met, such as an intention tocreate legal relations, offer and acceptance and consideration: see Connor vMcCarthy (1878) 12 ILTR 336; Swan v Miller [1919] 1 IR 151;McGillicuddy v Joy [1959] IR 189.Under section 4 of Deasy’s Act: see paragraph 2.15 below.36
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 42 and 43: CHAPTER 2FORMALITIES2.01 This chapt
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
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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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