Consultation Paper on the General Law of the Landlord and Tenant

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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
was not resolved until the enactment of legislation in 1995. 46Fortunately Irish practitioners and their clients have been spared thesedifficulties, so far as an original tenant is concerned, 47 because of theprovisions of section 16 of Deasy’s Act.3.13 Section 16 provides as follows:“From and after any assignment hereafter to be made of theestate or interest of any original tenant in any lease, with theconsent of the landlord, testified in the manner specified insection ten, the landlord so consenting shall be deemed tohave released and discharged the said tenant from all actionsand remedies at the suit of such landlord, and all personsclaiming by, through, or under him, in respect of any futurebreach of the agreements contained in the lease, but withoutprejudice to any remedy or right against the assignee ofsuch estate or interest.”This is an extremely beneficial provision which clearly must bepreserved, but there are some problems with its operation which needattention. One is that it applies only to assignment of a tenant’sinterest created by a “lease”, ie, by some written document. 48 Ofcourse most problems concerning continuing liability are likely toarise in commercial lettings which are usually created by a lease, butthere seems to be no reason why the provision should not apply torelieve a tenant holding under an oral tenancy, such as a periodictenancy arising by implication. 49 The Commission provisionallyrecommends that section 16 of Deasy’s Act should be extended todischarge tenants holding under an oral tenancy.3.14 Rather more seriously, discharge of the original tenant issecured only where the landlord’s consent to the assignment is“testified in the manner specified in section ten”. A number ofproblems arise in respect of this. One problem was drawn attention topreviously by the Commission. 50 This is that section 10 of Deasy’s4647484950Contract and Estate (Law Com No 174, 1988).Section 5 of the Landlord and Tenant (Covenants) Act 1995.Cf the position of the original landlord: see paragraph 3.17 below.See paragraph 2.10 above.See paragraph 2.18 above.Report on Land Law and Conveyancing Law: (1) General Proposals (LRC62
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Landlord and Tenant Law Working Gro
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E Landlord’s Identity and Agent .
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INTRODUCTION1. This is the second <
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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 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
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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Page 110 and 111: 6.13 To some extent the very limite
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Page 114 and 115: 6.19 It was mentioned earlier that
Page 116 and 117: E Landlord’s Identity and Agent6.
Page 118 and 119: 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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