Consultation Paper on the General Law of the Landlord and Tenant

covenants and conditions in leases can be severed or apportioned. 71What is not so clear is the extent to which the tenant is bound by anysuch severance or apportionment. Clearly the tenant is bound if he orshe joins in the arrangement and agrees to accept two or morelandlords, thereafter paying apportioned parts of the rent to differentlandlords and accepting apportionment of other obligations. Suchjoining in is rare and, where it does not occur, there has been muchdebate as to how far the tenant can disregard the severance of thelandlord’s interest and insist upon dealing only with the originallandlord on the basis that that person remains the only landlord. 72There is very little authority on the point 73 and clearly the positionshould be made clear. The Commission provisionally recommendsthat the new statutory provisions to govern the position of successorsin title should deal comprehensively with part assignments and shouldmake explicit provision for severance or apportionment of rights andobligations as between all parties interested in the demised premises.3.21 There remains the question of the position where the tenantassigns part only of the demised premises. In practice the position ofthe parties in this situation is usually clearer, in that the consent of thelandlord to such an assignment will usually be required by the termsof the tenant’s lease. The landlord in that sense “joins in” and so theissue of what apportionment of the rents and obligations takes placewill be resolved by express agreement. 74 Where there is no suchagreement, the position is again not entirely clear and there is again a71727374Eg the Statute of Reversions (Ireland) 1634; Law of Property AmendmentAct 1859 (section 3); Conveyancing Act 1881 (section 12). Note also theviews of the House of Lords that sections 12 and 13 of Deasy’s Act mayhave had the same effect: see Liddy v Kennedy (1871) LR 5 HL 134; seealso Lyle v Smith [1909] 2 IR 58, 68-69 (per Lord O’Brien LCJ).See Wylie op cit paragraph 21.34.Again some of the law lords in Liddy v Kennedy (footnote 71 above)thought that sections 12 and 13 of Deasy’s Act “put the question upon anentirely different footing” (per Lord Chelmsford at 149); see also LordHatherley at 143.Often the landlord will be reluctant to agree to such a part assignment,because of the “fragmentation” of the property which results (increasingthe management burden of collecting rents, service charge payments, etc).And, where it is agreed, the landlord may insist on one of the tenantsretaining responsibility for paying the whole rent and service charge (andfor recouping apportioned parts from the other tenant or tenants).67