Consultation Paper on the General Law of the Landlord and Tenant

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paragraph, such an arrangement would be very unlikely to arise inpractice. In the residential context, such a short-term tenancy wouldusually be granted immediately without the complications of apreliminary contract preceding it. And in the commercial context,again such a preliminary contract would be rare, unlike where thetenancy contemplated is for a substantial term. This distinctionbetween the requirements for contracts and grants is one of very longstanding 21 and the Commission is not inclined at this stage to suggestits abolition, partly also for reasons given later. 222.08 It should be noted that the requirement in section 2 of the1695 Statute is not that the contract has to be in writing, but simplythat it must be “evidenced” in writing, ie, to use the terminology ofthe section, there must be a sufficient “memorandum or note” inwriting signed by “the party to be charged” with the contract. Therehas, of course, been voluminous case law on the operation of theseprovisions, 23 including the development of the equitable doctrine ofpart performance as an alternative means of enforcing a contractwhich does not meet the written evidence requirements of section 2. 24However, the Commission takes the view that there is no need toenter into a discussion of these matters for the reasons set out in thenext paragraph.2.09 First, in so far as the developments referred to in theprevious paragraph are based upon the courts’ development ofequitable principles, 25 interference by legislation is usually notmerited. Secondly, section 2 does not just apply to contracts for thegrant of leases; it is a provision which applies to conveyancing2122232425It was, in fact, enshrined in the 1695 Statute itself, because section 1, in thecase of grants (as opposed to contracts governed by section 2), requiredwriting only for leases exceeding three years. Section 1 was repealed (seesection 104 and Schedule (B)) and replaced (see section 4) by Deasy’s Act.Paragraph 2.09 below.See Farrell op cit Chapter 5.Ibid Chapter 6.Apart from the doctrine of part performance (as to which note the SupremeCourt’s recent pronouncement in Mackey v Wilde [1998] 1 ILRM 449),another example is the rule in Walsh v Lonsdale (“a contract for a lease isas good as a lease”): see Sheridan, “Walsh v Lonsdale in Ireland” (1952) 9NILQ 190; Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths1998) paragraph 5.19.37
contracts generally. 26 Any question of its reform should, therefore, beconsidered in that wider context. Indeed, just such a considerationhas already been undertaken by the Commission recently in thecontext of “gazumping”. 27 One of the options considered for dealingwith that problem was reform of section 2 of the 1695 Statute, but thisoption was rejected. The Commission at this stage sees no soundreason for re-opening that issue, but wishes to make it clear that itmay have to be revisited in the future as a result of other on-goingprojects. 28 The Commission provisionally concludes that it is notappropriate at this stage to recommend reform of the legislationgoverning contracts for the grant of tenancies.C Leases2.10 The extent to which some formal requirements apply to thegrant of a tenancy is governed by section 4 of Deasy’s Act. Thisreads as follows:“Every lease or contract with respect to lands whereby therelation of landlord and tenant is intended to be created forany freehold estate or interest, or for any definite period oftime not being from year to year or any lesser period, shallbe by deed executed, or note in writing signed by thelandlord or his agent thereunto authorised in writing.”This provision is not as clear as it might be and seems in need ofsome revision.2.11 The first point to note is that, despite the words “orcontract”, it seems clear that section 4 is not concerned withpreliminary contracts for the grant of a tenancy, but rather with thegrant itself. This point was dealt with earlier. 29 The Commission’spreliminary conclusion is that the words “or contract” in section 4 of26272829See Wylie Irish Conveyancing Law (2 nd ed Butterworths 1996) Chapter 6.Report on Gazumping (LRC 59–1999).One is a project to replace all pre-1922 property statutes with modernlegislation (this would obviously include section 2 of the 1695 Statute).Another is the e-Conveyancing Project, which will involve theconsideration of how contracts relating to conveyancing transactions mightbe created under an entirely computerised system.See paragraph 2.03 above.38
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 44 and 45: Commission has previously drawn att
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
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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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