Consultation Paper on the General Law of the Landlord and Tenant

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some statutory protection exists. 79 The Commission sees no reason tosuggest any interference with such well settled law.3.24 There are some specific provisions in Deasy’s Act whichdeal with sub-lettings and require some discussion. One is section 19.This states that, in the case of a sub-letting made with the landlord’sconsent, 80 if the sub-tenant pays the sub-rent to the head-tenant, thelatter’s receipt is a “full discharge” as against the head-landlord,unless the head-landlord had served prior notice of the head-tenant’sdefault on the sub-tenant under section 20. 81 At first sight this is asomewhat odd provision 82 given that there is no privity of estatebetween the head-landlord and sub-tenant. 83 It is also not entirelyclear what the implications are, but it would appear to mean that thehead-landlord in such circumstances is prevented from seekingforfeiture for non-payment of the head-rent in respect of the portionof the premises occupied by the sub-tenant. If that is, indeed, theeffect of the section, it must be doubted whether it is appropriate so torestrict the landlord’s right of forfeiture. It seems to be anunnecessary complication and there is surely an argument for sayingthat a sub-tenant’s position should be left to be determined by thegeneral law relating to relief against forfeiture. 84 In so far as this isbased on the discretion of the court, it is arguable that section 19involves an inappropriate interference with the jurisdiction of thecourt to determine what relief should be given to a particular subtenantin the light of all the circumstances of the case. TheCommission provisionally recommends that section 19 of Deasy’sAct, which would appear to restrict the head-landlord’s ability to seekforfeiture for non-payment of head-rent in respect of the portion of798081828384Eg under section 78 of the Landlord and Tenant (Amendment) Act 1980.Note also the protection for sub-tenants under section 32 and the Schedulein the Residential Tenancies Bill 2003.The section refers to this being given in the manner set out in section 18,but like section 10, that section was repealed by section 35(1) of theLandlord and Tenant (Ground Rents) Act 1967: see paragraph 3.14 above.Requiring the sub-tenant to pay the sub-rent directly to the head-landlord:see paragraph 3.25 below.It is not clear why section 19 excepts from its provisions a “building lease”(not defined anywhere in the Act).See paragraph 3.22 above.See paragraph 14.21 below.69
the premises occupied by the sub-tenant, should be repealed withoutreplacement.3.25 Linked with section 19 is section 20, which is also asomewhat odd provision. In essence it entitles the head-landlord,where the head-tenant defaults in paying the head-rent, to require thesub-tenant to pay directly to the head-landlord so much of the subrentas will discharge the arrears of head-rent. The receipt of thehead-landlord is a full discharge for the sub-tenant and the headlandlordhas all the usual remedies to enforce payment of the sub-rentdirectly. It may be questioned whether it is again appropriate that thehead-landlord can thereby unilaterally impose privity of contract onthe sub-tenant, when normally not even privity of estate existsbetween the head-landlord and sub-tenant. 85 It is arguable that thehead-landlord should be required to pursue remedies against the headtenantand the position of the sub-tenant should be left to be dealtwith as a consequential matter, eg, by way of relief againstforfeiture. 86 It is also not clear from the section what theconsequences of its application are on the position of the head-tenantand on the relationship between the head-tenant and sub-tenant. Itwould appear that the head-tenant has no say in the section’sapplication by the head-landlord. It would also appear that the subtenantis entitled to deduct any payments made to the head-landlordfrom payments of sub-rent to the head-tenant. There is a suggestion,however, that, a sub-tenant who fails to make such deductions, cannotrecover them unless the head-tenant “adopts” the payments to thehead-landlord. 87 It is also not clear what time limit, if any, applies tothe arrangement contemplated by section 20, other than, presumably,when the arrears of head-rent specified in the landlord’s notice havebeen finally paid off. Nor is it clear whether the head-tenant cansecure a stop on the arrangement by giving an undertaking to pay offthe arrears of head rent. Given the various uncertainties which existin respect of this provision, and its arguable inappropriatenessmentioned earlier, the Commission doubts whether it should beretained. The Commission provisionally recommends that section 20of Deasy’s Act, which entitles the head-landlord, where the headtenantdefaults in paying the head-rent, to require the sub-tenant to858687See paragraph 3.22 above.See paragraph 3.24 above.See Ahearne v McSwiney (1874) IR 8 CL 570.70
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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
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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 and 76: eferred to as a severance of the in
Page 77: need to have statutory provisions t
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
Page 108 and 109: how far the Irish courts will follo
Page 110 and 111: 6.13 To some extent the very limite
Page 112 and 113: of the Residential Tenancies Bill 2
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
Page 126 and 127: 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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