Consultation Paper on the General Law of the Landlord and Tenant

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within the purview of the Landlord and Tenant Project and considersthat they should be reviewed in their respective contexts, as part of ageneral review of land law and conveyancing law. 53 However, it doeswish to draw attention to related provisions, which are the Leases Acts1849 and 1850. 54 These short Acts purport to save leases which fail tocomply with statutory requirements such as those mentioned above,by giving the lessee the option to treat the invalid lease as a contractto grant a valid one. The provisions are hedged with limitations 55 andrestrictions 56 and are of uncertain scope. Thus it has been held by theEnglish courts that they apply only where the invalidity relates tosome minor or technical flaw in the exercise of statutory leasingpowers. 57 Arguably this casts doubts on the policy behind the Acts; itis somewhat odd to have statutory provisions which seem toundermine other statutory requirements. 58 In any event, theCommission takes the view that the consequences of failure tocomply with a particular set of statutory requirements for the exerciseof leasing (or, indeed, any other kind of) powers should be spelt out inthe statute conferring those powers. If that were done there would beno need for provisions like the Leases Acts 1849 and 1850. On thatbasis the Commission has reached the provisional conclusion that theLeases Acts 1849 and 1850 should be repealed without replacement.535455565758This will occur in any event as part of a review of pre-1922 propertystatutes currently being undertaken: see paragraph 2.09 footnote 28 above.See Wylie op cit paragraph 5.47.For some unclear reason the Acts do not apply to leases of land held oncharitable, ecclesiastical or public trusts.The Acts can be invoked only if the invalid lease was made in good faithand the lessee has taken possession under it: see Moffett v Lord Gough(1878) 1 LR Ir 331.Kisch v Hawes Bros [1935] Ch 102; Iron Trades Employers InsuranceAssociation Ltd v Union Land and House Investors Ltd [1937] Ch 313;Davies v Hall [1954] 1 WLR 855; Pawson v Revell [1958] 2 QB 360.The Irish courts are not usually sympathetic to a failure to comply withsuch statutory requirements: see, eg, Hughes v Fanagan (1891) 31 LR Ir111 (Settled Land Acts) and ICC Bank plc v Verling [1995] 1 ILRM 123(lease of mortgaged land).43
D Periodic Tenancies2.18 It was mentioned earlier 59 that many, if not most, periodictenancies arise by implication from the actions of the parties, ratherthan being created by an express agreement entered into by them.There is a voluminous case law on this subject, which illustrates theinterpretation the courts are likely to put on the parties’ actions or thecircumstances of a particular case. 60 The Commission does notconsider it appropriate to recommend any statutory interference withsuch case law, which must remain based on issues of interpretation ofthe circumstances of particular cases which are best left to thecourts. 61 However, attention must be drawn in this context to twofurther provisions in Deasy’s Act, namely sections 5 and 6.2.19 Section 5 is a very odd provision of doubtful significance.In essence it provides that where a tenant 62 continues in possession formore than a month after demand of possession by the landlord, thelandlord may elect to treat the tenant as holding a new tenancy fromyear to year at the former rent and subject to such of the termscontained in the expired lease 63 as may be applicable to the newperiodic tenancy. The main difficulty with this provision is that it isnot clear how far it displaces the common law. The point is that it5960616263Paragraph 2.14 above.See the discussion in Wylie op cit paragraph 4.10 and following.However note that the Commission does make substantialrecommendations later in relation to other aspects of periodic tenancies,namely the operation of notices to quit: see paragraph 13.02 below. Notealso the recommendations concerning break notices (paragraph 13.08below).Or “his representative”. It is unclear what this refers to. As Deale pointsout it cannot mean the tenant’s personal representative, since section 1 ofDeasy’s Act defines “tenant” as meaning any person who acquires thetenant’s interest by (inter alia) “devise, bequest, or act and operation oflaw”: The Law of Landlord and Tenant in the Republic of Ireland(Incorporated Council of Law Reporting for Ireland 1968) at 4. HoweverDeale’s suggestion that it refers to the tenant’s “agent” seems doubtful –under the law of principal and agent, possession by an agent is regarded aspossession by the principal.Section 5 seems to apply only where the expired tenancy was held under a“lease or instrument”. In theory there is no reason why a periodic tenancyshould not arise by implication on expiration of a fixed term oral tenancy(for a term not exceeding one year: see paragraph 2.15 above).44
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 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 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
Page 97 and 98: subject was discussed in the <stron
Page 99 and 100: 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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