Consultation Paper on the General Law of the Landlord and Tenant

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seems to be inconsistent with the common law in several respects.For example, under the common law a holding over by a tenant willresult automatically in a periodic tenancy arising, if the facts warrantit. 64 There is no question of the landlord having an option in thisregard, as under section 5, apparently to foist the periodic tenancy onthe tenant. Under the common law the periodic tenancy arises fromthe deemed implied agreement of both parties, probably on the basisof the doctrine of estoppel. 65 Furthermore at common law theperiodic tenancy arises immediately upon the overholding and othercircumstances occurring which give rise to the estoppel, 66 whereassection 5 refers to the somewhat arbitrary fixed date of one monthafter a demand for possession by the landlord. Section 5 confers onthe landlord the option to treat the tenant as holding under a tenancyfrom year to year, yet at common law the courts recognise that thecircumstances of a particular case may justify a finding that someother kind of periodic tenancy has arisen. 67 Given these doubts anddifficulties it is not surprising that section 5 has very rarely beeninvoked in the numerous cases where it has been argued that aperiodic tenancy has arisen by implication. Furthermore, in moremodern times there has often been no need to invoke it because thetenant has had statutory protection which arose upon expiration of thetenancy. 68 For all these reasons the Commission has considerabledoubts about the usefulness of section 5. The Commission6465666768See Earl of Meath v Megan [1897] 2 IR 477, 479 (per FitzGibbon LJ); alsothe discussion by the Supreme Court in Irish Shell & BP Ltd v Costello Ltd[1984] IR 511.Per Gannon J in Eamonn Andrews Productions Ltd v Gaiety Theatre(Dublin) Ltd [1976-7] ILRM 119, 123. See also Dublin Corporation vDonnelly High Court 29 April 1969, at 9 (per McLoughlin J).Nixon v Darby (1868) IR 2 CL 467; Doyle v Maguire (1884) 14 LR Ir 24.Phoenix Picture Palace Ltd v Capital & Allied Theatres Ltd [1951] Ir JurRep 55 (weekly tenancy); Esso Teoranta v Wong [1975] IR 416 (monthlytenancy).Eg, under the old Rent Restriction Acts the tenant became a “statutorytenant”: see Healy and Provisional Bank of Ireland v Armstrong [1949] IrJur Rep 18; McCombe v Sheehan [1954] IR 183. As regards protectionunder the Housing (Private Rented Dwellings) Act 1982, see section 9 ofthat Act. Note also the protection of tenants holding over pending finaldetermination of an application for a new tenancy or reversionary leaseunder sections 28 and 40 of the Landlord and Tenant (Amendment) Act1980.45
provisionally recommends that section 5 of Deasy’s Act should berepealed without replacement.2.20 Section 6 of Deasy’s Act is a short provision as follows:“Every tenancy from year to year shall be presumed to havecommenced on the last gale day of the calendar year on which therent has become due and payable in respect of the premises, until itshall appear to the contrary.” It is not entirely clear what the purposeof this provision was, but it was probably intended to facilitate properservice of a notice to quit. 69 The common law rules governing validservice of a notice to quit are riddled with uncertainties and theCommission has concluded that statutory clarification is clearlyneeded. 70 Section 6 is insufficient for these purposes for a number ofreasons. One is that it appears to raise a presumption only, whicharguably leaves matters still too uncertain for the parties. What theyneed is the security of knowing that a notice served is valid and notcapable of legal challenge, so that they can order their affairsaccordingly. Another is that section 6 relates only to a tenancy fromyear to year, whereas clarification is needed for all kinds of periodictenancies. 71 The Commission provisionally recommends that section6 of Deasy’s Act should be repealed and replaced by a comprehensiveset of statutory provisions governing determination of periodictenancies. 7269707172See, eg, Cherry The Irish Land Law and Land Purchase Acts 1860–1901(3 rd ed John Falconer 1903) at 19.This matter is dealt with in Chapter 13 below. Note also the provision insection 16 of the Housing (Miscellaneous Provisions) Act 1992. Furtherprovisions relating to residential tenancies are contained in the ResidentialTenancies Bill 2003, Part 5. Notices to quit agricultural tenancies aregoverned by the Notices to Quit (Ireland) Act 1896: see paragraph 13.03below.In respect of which there appear to be even more doubts as to the commonlaw rules: see Wylie op cit paragraph 23.13.Note also the discussion later of the effect of service of a notice to quit ona sub-tenancy created out of the periodic tenancy to which the noticerelates: see paragraph 13.08 below. Cf as regards the effect of a surrenderby the head-tenant or exercise of a break option paragraph 13.08 below.46
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 52 and 53: within the purview of the Landlord
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
Page 102 and 103: 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:
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Consultation Paper on the General Law of the Landlord and Tenant

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