Consultation Paper on the General Law of the Landlord and Tenant

Deasy’s Act should be dropped from any replacement legislationsince that section applies to the grant of a tenancy rather thanpreliminary contracts for the grant of a tenancy.2.12 The reference to “any freehold estate or interest” recognisesthe common practice in Ireland of granting leases for lives, forexample, leases for lives renewable for ever and leases for livescombined with a term of years. The origin of these grants issomewhat obscure and they have ceased to be of any practicalsignificance in modern times. 30 Of rather more significance, and stillof relevance in modern times, the section also recognises the verycommon practice in Ireland of making fee farm grants which createthe relationship of landlord and tenant between the grantor andgrantee. 31 What is of particular interest is that, although in practicesuch grants are invariably created by a deed, section 4 does providethe alternative of simply a “note in writing”. In this regard the sectiondoes distinguish between the different interests in respect of which therelationship of landlord and tenant can be created. A deed is notnecessary in any case, ranging from the smallest of interests to thelargest (in fact not even in relation to the largest estate recognised byour legal system, the freehold “fee simple” estate). Notwithstandingthis apparent oddity, 32 the Commission sees no reason to change thisaspect of a provision of long standing. The Commission provisionallyrecommends that the alternative of creating a lease in writing,without use of a deed, should remain available in all cases where anoral arrangement is insufficient.303132See Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths 1998)paragraphs 4.45–46. Under section 37 of the Renewable LeaseholdConversion Act 1849 any lease for lives renewable for ever granted after1849 operated as a fee farm grant. Any pre-1849 leases, not convertedunder the 1849 Act, were converted by section 74 of the Landlord andTenant (Amendment) Act 1980. The latter is not entirely satisfactory in itsdrafting: see <strong>Consultation</strong> <strong>Paper</strong> on Business Tenancies (LRC CP21–2003) paragraph 4.51.See Wylie op cit paragraph 4.41 and following.A grant of a fee simple not involving a fee farm grant, and, indeed, of anyother freehold interest, such as a life estate, must be by deed under section2 of the Real Property Act 1845 (as an alternative to the old feudal formsof conveyance): see Wylie Irish Conveyancing Law (2 nd ed Butterworths1996) paragraph 17.02.39