Consultation Paper on the General Law of the Landlord and Tenant

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