Consultation Paper on the General Law of the Landlord and Tenant

Act, which provided that, where a lease contained a provisionprohibiting or restraining assignment, it was “not lawful” to assignwithout the consent of the landlord testified as set out in the section, 51was actually repealed by section 35(1) Landlord and Tenant (GroundRents) Act 1967. 52 That Act did not repeal the cross-reference tosection 10 in section 16 and it must be doubted whether any impliedrepeal occurred. 53 Clearly this doubt should be cleared up, but thatleads to the issue as to what should be the requirements. Section 10laid down somewhat cumbersome ones, namely, the landlord or thelandlord’s agent “testifying” his or her consent to the assignment by“being an executing party to the instrument of assignment or by anendorsement on or subscription of the instrument”. In practice it maybe more convenient to the parties to have the consent executedseparately from the deed of assignment and it is not uncommon for itsimply to be given by letter. The Commission adheres to its previousrecommendation that section 16 of Deasy’s Act should be amended sothat the landlord’s consent need merely be in writing. 543.15 A question which arises is whether the need for writingshould apply in cases where an oral tenancy, such as a periodic one, isassigned. It was suggested earlier that section 16 should apply todischarge the original tenant in such cases. 55 As the law stands therequirement of consent in writing would accord with the positionunder section 9 of Deasy’s Act that any assignment of an oral tenancymust be in writing. 56 However, the preliminary conclusion reachedearlier is that this should be modified to make it clear that it does notexclude the courts’ jurisdiction to apply equitable principles such as51525354555630–1989) paragraphs 58-59.The preponderance of authority suggested that a failure to comply renderedthe assignment “void” and not merely “voidable”: per Murray J inCraigdarragh Trading Co Ltd v Doherty [1989] NI 218, 230, citing Earl ofDonoughmore v Forrest (1871) IR 5 CL 470.Section 35(1).See Wylie op cit paragraph 21.30.Report on Land Law and Conveyancing Law: (1) General Proposals (LRC30–1989) paragraph 59.Paragraph 3.13 above.Paragraph 2.28 above.63