Consultation Paper on the General Law of the Landlord and Tenant

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the judges of the old Exchequer Chamber 40 somewhat surprisinglytook the view that a tenancy for one year was not less than a tenancyfrom year to year. The reasoning of the majority has been muchcriticised by later judges 41 and the Commission agrees with thatcriticism. Clearly, this point should be cleared up and new legislationshould provide that a tenancy not exceeding one year may be createdorally. At this stage the Commission is not convinced that the periodfor fixed term tenancies should be extended, 42 given that periodictenancies, whether yearly or for lesser successive periods, can also becreated orally and may last for longer than a year. 43 If the parties wishinitially to create a tenancy for a term exceeding one year, it seemssensible to commit their agreement and the terms of the tenancy towriting. Furthermore, where it is part of the parties’ agreement thatthe tenant has the right to require an extension of the term, whichextension would result in the combined terms exceeding one year, 44 itwould again seem sensible to require the agreement to be put inwriting. 45 Section 4 of Deasy’s Act does not deal with this point. TheCommission provisionally recommends that section 4 of Deasy’s Actshould be recast to provide that the following tenancies may becreated orally: (i) any periodic tenancy; (ii) any tenancy for a fixedperiod not exceeding one year, but not a tenancy for a fixed periodwith an option to renew which, if exercised, would result in thecombined periods exceeding one year.39404142434445Whiteside CJ, Palles CB, Fitzgerald B and Fitzgerald J. Cf Dowse andDeasy BB and O’Brien J.The Court below (the old Court of Common Pleas) had taken a differentview: (1873) IR 7 CL 134 (Monahan CJ, Morris and Lawson JJ).Within a very short time: see Brew v Conole (1875) IR 9 CL 151. See alsoLord Arran v Wills and Ryan v Chadwick, both reported at (1883) 14 LR Ir200 (and note the report of the appeal in Ryan v Chadwick at 353);Jameson v Squire [1948] IR 153, 165-166 (per Black J); McGrath vTravers [1948] IR 122, 125 (per Dixon J). For discussion of this case lawsee Wylie op cit paragraphs 5.30-32.In England a tenancy not exceeding three years may be created orally:section 54(2) of the Law of Property Act 1925.Ie they continue for successive periods until either party serves a notice toquit: see Wylie op cit paragraph 4.10 and following.Eg a tenancy for nine months with an option to extend it for a further sixmonths.Cf section 54(2) of the Law of Property Act 1925.41
2.16 Before leaving the subject of leases it may be convenient todraw attention to two further provisions in Deasy’s Act, namelysections 23 and 24. Section 23 provides that in any proceedings proofof “perfection” (ie execution) of the counterpart 46 of a lease is theequivalence of proof of the execution of the original, and, if nocounterpart has been executed, or it has been lost, destroyed ormislaid, proof of a copy of the original or any counterpart is sufficientevidence of the contents of the lease as against the lessee or anyperson claiming through him. Arguably this is a matter which shouldbe dealt with by Rules of Court, but, in any event, it seems to be auseful provision worth retaining in some form. Section 24 providesthat, in any proceedings by or against a person claiming to be asuccessor to the original landlord, after proof of the original lease 47 orcontract 48 it is sufficient “prima facie” 49 evidence of that person’s titleas landlord that he or she has received the rent for one year at least. 50This too seems to be a provision worth retention. The Commissionprovisionally recommends that the provisions of sections 23 and 24 ofDeasy’s Act, which concern proof of execution and proof of title,should be retained in some form.2.17 It should also be mentioned that there are special statutoryprovisions laying down requirements as to the form and contents ofleases in certain circumstances. Examples are the provisionsgoverning leases granted by a tenant for life under the Settled LandActs 51 and by a mortgagor or mortgagee under the Conveyancing Act1881. 52 The Commission does not regard such provisions as coming46474849505152It is common for a lease to be drawn up and engrossed in duplicate and tohave both copies executed, first by the lessee and then by the lessor. Thelessee is given the original and the lessor retains the counterpart.Eg in accordance with section 23.Ie of an oral agreement not involving a lease.Note that these words do not appear in section 23 and it is not clear whatsignificance they have – a provision that something is only “sufficient” (asopposed to “conclusive”) evidence raises a presumption only, ie what is“prima facie” the position.Or the landlord’s immediate predecessor has received it for at least oneyear and within three years before the transmission of the title.See section 7 of the Settled Land Act 1882 and section 7 of the SettledLand Act 1890: Wylie op cit paragraph 5.42.Section 18: Wylie op cit paragraph 5.43.42
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
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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 46 and 47: paragraph, such an arrangement woul
Page 48 and 49: Deasy’s Act should be dropped fro
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
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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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Page 95 and 96: (2) consumer protection; (3) defaul
Page 97 and 98: subject was discussed in the <stron
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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
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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