Consultation Paper on the General Law of the Landlord and Tenant

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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
2.13 The reference to “any freehold estate or interest”, especiallyin conjunction with the following reference to “any definite period oftime”, also emphasises a point made earlier. This is that the Irishcourts have never been troubled, as the English courts have, by theconcept of a lease or tenancy for a single 33 period of uncertainduration. The Commission reiterates the view expressed earlier thatthis feature of Irish law should be retained. 342.14 The most controversial aspect of section 4 is the wording“for any definite period of time not being from year to year or anylesser period”. This wording is designed to distinguish between thosetenancies which can be created orally, without any formality, andthose which require some formality, at least a written document (butnot necessarily a deed 35 ). It is clear that most, if not all, 36 periodictenancies can be created orally and the Commission sees no reason tochange this position. In fact many, if not most, periodic tenanciesarise by implication from the actions of the parties, rather than as aconsequence of a deliberate entering into of an agreement. 372.15 What has caused more difficulty is the question of whichfixed term tenancies can be created orally. This is dealt withsomewhat awkwardly by section 4, in the expression “being fromyear to year or any lesser period”. It would have been better if thesection had drawn a clearer distinction between periodic tenancies, onthe one hand, and fixed term tenancies, on the other, rather thandealing with the latter by reference to the former. It seems clear thatany fixed term tenancy for a period less than a year comes within thewording of the section and so can be created orally. What has causedthe Irish courts considerable difficulties is what is the position of atenancy for one year exactly. In Wright v Tracey 38 the majority 39 of333435363738Periodic tenancies (where there are successive periods) fall into a separatecategory: see paragraph 2.14 below.Paragraph 1.12 above.See paragraph 2.12 above.In theory there is no reason why the successive periods should not exceedone year, eg, a tenancy from 18 months to 18 months.See Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths 1998)paragraphs 4.13 and 4.18. Note also the somewhat odd provision insection 5 of Deasy’s Act: see paragraph 2.19 below.(1874) IR 8 CL 478.40
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
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Page 29 and 30: like lodgers, 83 hotel guests, 84 s
Page 31 and 32: landlord and tenant.” 96 This see
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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
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Page 46 and 47: paragraph, such an arrangement woul
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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
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Page 66 and 67: prescribe that a particular tenant
Page 68: not clear how far statute law has c
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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
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Page 82 and 83: CHAPTER 4FIXTURES4.01 The law of
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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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Page 95 and 96: (2) consumer protection; (3) defaul
Page 97 and 98: 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
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Report on Occupiers’ Liability (L
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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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