Consultation Paper on the General Law of the Landlord and Tenant

the tenant assignee who has assigned defaults in paying rent, the newtenant to whom the tenancy has been assigned is liable only for anapportioned part of the rent from the date of assignment. 39 TheCommission takes the view that section 15 should operate as a“default” provision only, to govern the position where the partieshave not agreed otherwise. Furthermore, there again seems to be noreason why this default provision should not apply equally to alandlord assignee. 40 The Commission provisionally recommends thatsection 15 of Deasy’s Act should be amended to enable the parties tocontract out of it and to extend it to cover a landlord assignee.D Position of Assignor3.12 The position of the original landlord and tenant 41 followingan assignment of their respective interests gave rise to particulardifficulties at common law. This was because they were the originalparties to the tenancy and, therefore, were governed by the doctrine ofprivity of contract. Under this doctrine the landlord and tenantassumed their respective obligations for the duration of the tenancyand could be held subject to a continuing liability even though theirinterest was assigned to someone else before the determination of thetenancy. 42 This could be a particular problem for the original tenant,especially in a commercial context, where over the period of thetenancy some obligations are likely to escalate considerably, eg,under rent review 43 and service charge 44 provisions. Until veryrecently in England it was a matter of considerable controversy 45 and39404142434445Glass v Patterson [1902] 2 IR 660.The position of an original landlord is not so clear, because there is noequivalent of section 16: see footnote 38 above and paragraph 3.17 below.The position of successors to the original landlord and tenant wasconsidered in paragraphs 3.08-3.11 above.The common practice of obtaining an indemnity from the assignee wasoften of little comfort, because this would not bind the other party to thetenancy (landlord in the case of an assignment of the tenant’s interest)unless, which was unlikely, that party agreed to waive privity of contractclaims. Furthermore, if an assignee defaulted on the tenancy obligationshe was also likely to default on the indemnity.See Chapter 8 below.See Chapter 9 below.See the Law Commission’s Report Landlord and Tenant Law: Privity of61