Consultation Paper on the General Law of the Landlord and Tenant

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E Surrenders2.21 Section 7 of Deasy’s Act purports to govern the formalitiesfor surrender of a tenancy by the tenant. It provides as follows:“The estate or interest of any tenant under any lease or othercontract of tenancy shall not be surrendered otherwise thanby a deed executed, or note in writing signed by the tenantor his agent thereto lawfully authorised in writing, or by actand operation of law.”The apparent rigidity of this provision, encapsulated by the referencesto “any” tenant holding under “any” lease or tenancy and theimperative “shall”, is clearly tempered by the express recognition ofsurrender “by act and operation of law”. This incorporates a hugeamount of case law explaining what this expression means. 73 Thelikelihood is that any purported oral surrender will be accompanied byother actions, such as handing over the keys and vacating thepremises, which would be construed by the courts as a surrender byact and operation of law. 74 The Commission provisionallyrecommends that the provisions of section 7 of Deasy’s Act governingsurrenders are basically sound.2.22 There is, however, one major point which has to beconsidered. Notwithstanding the substantial case law on the point, itis arguable that much uncertainty exists as to when a surrender by actand operation of law will be held to have taken place. The question iswhether some statutory definition or clarification should be provided.The Commission is mindful of the difficulties of attempting to definea concept whose application depends so much on the court’sinterpretation of the circumstances of each particular. However, inview of the difficulties which many practitioners apparently have withthe concept, there may be a case for giving at least some statutoryguidelines. These could be founded on what appears to be theunderlying principle, namely unequivocal conduct of both thelandlord and tenant which is inconsistent with the continuance of thetenancy. This might then be amplified by referring to typicalexamples of such conduct, distilled from the case law. Suchexamples are: delivery up of possession by the tenant and acceptance7374See Wylie op cit paragraph 25.08. See further paragraph 2.22 below.See Glynn v Coghlan [1918] 1 IR 482, as explained by Kenny J inMcSweeney v McKeown High Court 7 December 1970.47
of this by the landlord; 75 the landlord granting a new tenancy to thetenant to displace the existing one; 76 the landlord granting a newtenancy to a third party with the old tenant’s agreement, again todisplace the old one; 77 permitted occupation of the premises which isinconsistent with the continuance of the tenancy. 78 The Commissionprovisionally recommends that the replacement of section 7 ofDeasy’s Act should be expanded to give guidelines as to whatconstitutes a surrender by act and operation of law.2.23 There is one further practical problem which can arise withrespect to the concept of surrender by act and operation of law. Thisoccurs where the parties to a tenancy agree to vary the tenancy insome way. Such variations can take several forms. For example, itmay be agreed to enlarge the demised premises by adding someadditional property or, conversely, to reduce them. Sucharrangements are quite commonly entered into in large multi-letcommercial premises, such as shopping centres, office blocks andindustrial parks, where the landlord wants to carry out somereconfigurations of the various units let separately. Other examplesof variations to a tenancy are the adding of a further period to the termof years originally granted or the changing of the terms of thetenancy. Indeed, the original grant may make specific provision forsuch variation, the typical example being a rent review provisionwhich is standard in commercial leases. The problem is that suchvariations may be construed as a surrender of the existing tenancy byact and operation of law and the regrant of a new tenancyincorporating the variation, which will often not be what the partiesactually intend. 79 Furthermore because of the danger of this, theparties may feel compelled to incur considerable inconvenience andcosts. For example, they may be advised that a new lease to governthe combined premises, or to incorporate the varied terms, should beexecuted. Yet the addition or change of terms may be very smallcompared to the rest of the demised premises, rendering theinconvenience and cost disproportionate. In the case of adding to7576777879See Wylie op cit paragraph 25.11.Ibid paragraph 25.12.Ibid paragraph 25.13.Ibid paragraph 25.14.See Dowling “Variation of Lease or New Tenancy” [1995] Conv 124.48
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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
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 54 and 55: seems to be inconsistent with the c
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
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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
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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Page 104 and 105: 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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