Consultation Paper on the General Law of the Landlord and Tenant

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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it was “not lawful” to assignwithout the consent of the landlord testified as set out in the section, 51was actually repealed by section 35(1) Landlord and Tenant (GroundRents) Act 1967. 52 That Act did not repeal the cross-reference tosection 10 in section 16 and it must be doubted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
the doctrine of estoppel. 57 On the same basis it would seemappropriate to allow the court to hold, if the circumstances of the casejustify it, that not only may a landlord be estopped from denying thatan assignment has taken place, but also that the original tenant isdischarged from liabilities. The Commission provisionallyrecommends that section 16 of Deasy’s Act should be amended tomake it clear that it does not exclude the courts’ jurisdiction to applyequitable principles such as the doctrine of estoppel.3.16 There is a further problem about the operation of section 16which is that it is predicated on the assumption that the landlord’sconsent is required to the assignment. It is not uncommon for a leaseto contain no prohibition or restriction on alienation in which case thetenant is free to assign without seeking the landlord’s consent. If thetenant does so, it would appear that the protection provided by section16 is inapplicable – the section purports to apply to “any” assignmentby “any” original tenant of “any” lease. Thus a tenant in such asituation would be wise to seek the consent of the landlord and tohave it “signified” as the section requires. 58 Clearly this doubt shouldbe removed and, at first sight, it would seem to be undesirable toforce tenants to seek consent where the lease does not require it.However, there are clear dangers in this for a landlord and a potentialtrap for an unwary landlord. The landlord may have been prepared toconcede that the original lease should contain no restriction onalienation because of the financial strength and attractiveness of theoriginal tenant. The risk that the lease might be assigned to a tenantof little substance might be taken precisely because the view wastaken that if consent was not given as prescribed under section 16, theoriginal tenant of substance would remain liable. The Commissiontakes the view that it would be unfortunate if any amendment ofsection 16 created such a trap. The Commission provisionallyrecommends that, where a tenant is not required by the terms of thetenancy to seek consent to an assignment, the protection provided bysection 16 of Deasy’s Act should nevertheless apply only whereconsent to the assignment is given by the landlord.3.17 As indicated by the previous paragraphs, section 16 ofDeasy’s Act applies only to an assignment by the original tenant.5758Paragraph 2.28 above.See Wylie op cit paragraph 21.30.64
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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 71: was not resolved until the enactmen
Page 75 and 76: eferred to as a severance of the in
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Page 79 and 80: the premises occupied by the sub-te
Page 82 and 83: CHAPTER 4FIXTURES4.01 The law of
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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
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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
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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
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Page 118 and 119: CHAPTER 7TENANT’S OBLIGATIONS7.01
Page 120 and 121: 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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Consultation Paper on the General Law of the Landlord and Tenant

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