Consultation Paper on the General Law of the Landlord and Tenant

very little authority on the point, 15 but what there is suggests thatsection 12 has a wider scope than either the common law or section10 of the 1881 Act. 16 At the very least it avoids, in practice,arguments as to whether a particular covenant “touches and concerns”the land or has sufficient “reference to the subject-matter of thelease”. That is not to say that there might not be obligations enteredinto by the original tenant that are so personal to that tenant that theyshould not pass to a successor in title, eg, obligations which aredependent on personal skills or qualifications of the original tenant. 17Such examples are likely to be extremely rare and, in practice, wouldbe likely to be covered by an express provision making it clear thatthe obligation in question is personal to the original tenant and doesnot pass to any successor. Even in the absence of such an expressprovision, the likelihood is that a court would construe this as beingintended by the original landlord and tenant as part of theiragreement. 18 The problem is that if there is no express provision inthe lease, difficult questions of interpretation may arise and muchuncertainty may be created. The Commission takes the view that itwould be unfortunate if any replacement of the current statutoryprovisions, especially section 12 of Deasy’s Act, gave rise to suchuncertainty.3.05 It is clear that some clarification is necessary. At the veryleast the existence of overlapping, but not consistent, statutoryprovisions should be changed. The Commission takes the view thatany new, single statutory provision should be a wide-ranging onebased on section 12 of Deasy’s Act. The opportunity should be takento clarify a number of matters. One is that it should be made clearthat it remains open to the parties to a lease or tenancy agreement to15161718Partly because of the court’s tendency in the past to ignore the statutoryprovisions: see paragraph 3.03 footnote 11 above.Liddy v Kennedy (1871) LR 5 HL 134, 143 (per Lord Hatherley); Lyle vSmith [1909] 2 IR 58.An example which has been given is a tenant who is an accountantundertaking to handle the landlord’s tax affairs: see Wylie op cit paragraph21.23. Another example might be a tenant who is a builder undertaking tocarry out repairs to other property owned by the landlord. Yet anothermight be a commercial tenant who is granted a special concession, such asan initial rent free period.The old Divisional Court in Lyle v Smith [1909] 2 IR 58 put much weighton the perceived intention of the parties.56