Consultation Paper on the General Law of the Landlord and Tenant

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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
need to have statutory provisions to clarify the situation, which wouldin effect be “default” provisions to govern the position which theparties have failed to resolve. The Commission provisionallyrecommends that the statutory provisions should contain “default”provisions to govern part assignments by tenants in which thelandlord did not join.F Sublettings3.22 Generally speaking the position of successors in title isirrelevant where a subletting, as opposed to an assignment, of thetenant’s interest occurs. Where a subletting is made there is noprivity of estate between the head-landlord and sub-tenant. 75 Thehead-tenant making the sublettings retains his tenancy (head-tenancy)and retains the full benefits and liabilities attaching to it. The subtenantis in a direct relationship with the head-tenant only and has thebenefits and liabilities under the terms of the subletting only.3.23 The position outlined in the previous paragraph may bealtered in a number of ways. One is that the head-landlord may makeit a condition of giving consent to the sub-letting that the sub-tenantenters into direct covenants with the head-landlord, thereby creatingprivity of contract. Another is that the head-landlord may be able toenforce certain covenants in the head-lease against the sub-tenantunder the rule in Tulk v Moxhay. 76 In essence this is confined torestrictive covenants (eg as to the user of the premises) which wereclearly intended to bind all categories of successors, including subtenants.77 Furthermore, exercise by the landlord of remedies againstthe head-tenant may have an inevitable impact on the position of thesub-tenant. Thus a forfeiture of the head-tenancy will automaticallydestroy any sub-tenancy created out of it and leave the sub-tenant inthe position of having to claim relief against the forfeiture, 78 unless75767778See Wylie op cit paragraph 22.06.Ibid paragraph 22.08.See Whelan v Cork Corporation [1991] ILRM 19, 25-26 (per Murphy J)(affirmed by Supreme Court ex tempore [1994] 3 IR 367); see alsoNorthern Ireland Carriers Ltd v Larne Harbour Ltd [1981] NI 171, 178(per Murray J).See Chapter 14 below.68
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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
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after its enactment there were nume
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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 and 72: was not resolved until the enactmen
Page 73 and 74: the doctrine of estoppel. 57 On the
Page 75: eferred to as a severance of the in
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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
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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
Page 116 and 117: E Landlord’s Identity and Agent6.
Page 118 and 119: CHAPTER 7TENANT’S OBLIGATIONS7.01
Page 120 and 121: CHAPTER 8RENT AND OTHER PAYMENTS8.0
Page 122 and 123: 8.04 Section 42 of Deasy’s Act do
Page 124 and 125: 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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