Consultation Paper on the General Law of the Landlord and Tenant

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