Consultation Paper on the General Law of the Landlord and Tenant

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premises, the alternative of a new lease just for the addition may bevery unsatisfactory, because the landlord and tenant will then have tooperate two leases in respect of what is meant to be one holding.2.24 The law on this subject is somewhat confusing. 80 TheEnglish courts seem to have been more inclined to construe suchvariations as amounting to a surrender by act and operation of law andrequiring a regrant of a new tenancy to incorporate the variation. 81The Irish courts have tended to take a more pragmatic view. Forexample, they have held that rent reviews or variations (such as anabatement of rent) do not effect a surrender. 82 They have also heldthat surrender does not necessarily occur where the demised premisesare enlarged or diminished 83 or otherwise altered. 84 The Commissiontakes the view that such a pragmatic approach is sensible and inaccord with what the parties will usually wish. However, it alsoconcedes that there may be more fundamental variations which,arguably, should involve a surrender and regrant of a new tenancy toreflect the variation. This is where the transaction involves thelandlord in a new demise or grant which should be carried out by thesurrender of the old tenancy and a grant of the new one. The typicalexample is where the term of the tenancy is being extended. 85 On theother hand, given that Irish law is founded on the parties’ agreement,and that the parties’ intention is paramount, 86 it may be argued thatthey should be free to make any kind of variation to the tenancywithout having to suffer a surrender and regrant. The Commissionprovisionally recommends that the law governing the effect ofvariations of tenancies should be clarified, to make it clear that,80818283848586See Dowling “Variation of Lease or New Tenancy” [1995] Conv 124.See Fredco Estates Ltd v Bryant [1961] 1 All ER 34; Jenkin R Lewis &Son Ltd v Kerman [1970] 3 All ER 414; Friends Provident Life Office vBritish Railways Board [1996] 1 All ER 336.Clarke v Moore (1844) 7 Ir Eq R 515, 518 (per Sudgen LC). See alsoLord Inchiquin v Lyons (1887) 20 LR Ir 474; Watt v Marquis ofClanricarde (1896) 30 ILTR 128.Curoe v Gordon (1892) 26 ILTR 95; Thomson v Hagan [1906] 1 IR 1.Walsh v Hendron Bros (Dublin) Ltd (1947) 82 ILTR 64.See Re Savile Settled Estate [1931] 2 Ch 210; Baker v Merckel [1960] 1QB 657.See Chapter 1 above.49
unless the parties decide otherwise, a variation may be achievedwithout the need for a surrender and regrant. Such a variationshould be capable of being carried out either by execution of a deedor instrument in writing setting out the variation or by way ofendorsement on the existing lease.2.25 Finally, there are some further statutory provisionsgoverning surrenders. Section 8 of Deasy’s Act contains a somewhatconvoluted but nevertheless useful provision, which is designed tofacilitate surrender of a lease for the purpose of obtaining a renewal ofthe tenancy. It does so by providing that this can be done without thesurrender of any sub-tenancies and preserving the rights and remediesof the head-landlord and head-tenant. Curiously the section is silentabout the position of the sub-tenants, but their position is probablyalso preserved by implication. 87 The Commission takes theprovisional view that section 8 of Deasy’s Act should be clarified tomake it clear that the position of sub-tenants is also preserved.2.26 Section 9 of the Real Property Act 1845 provides (interalia) that where a head-lease is surrendered, the head-landlord stepsinto the shoes of the surrendering head-tenant and becomes thelandlord directly of the sub-tenants. This is a very useful provision,as is the protection conferred on sub-tenants in respect of statutoryrights by section 78 of the Landlord and Tenant (Amendment) Act1980. The Commission takes the provisional view that both thesestatutory provisions should be preserved. 882.27 There are two other provisions in Deasy’s Act which relateto surrenders. Section 40 contains a controversial provisionconferring on the tenant a right of surrender on the “destruction” ofthe demised premises. This is discussed later. 89 Section 44 governsthe position of the landlord where part only of the demised premisesis surrendered 90 and preserves the landlord’s rights and remedies with87888990See Hayes v FitzGibbon (1870) IR 4 CL 500.It has already pointed out that section 78 of the 1980 Act needs someclarification: see <strong>Consultation</strong> <strong>Paper</strong> on Business Tenancies (LRC CP21–2003) paragraph 4.52.Paragraph 11.03 below.Or where there is a “resumption of part by the landlord, which may beprovided for by the lease: see Coyne v Coyne (1876) IR 10 Eq 496; Liddy vKennedy (1871) LR 5 HL 134. The section also covers eviction of thetenant from part of the premises.50
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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 54 and 55: seems to be inconsistent with the c
Page 56 and 57: E Surrenders2.21 Section 7 of Deasy
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.
Page 104 and 105: for sale. 14 This matter is again o
Page 106 and 107: 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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