Consultation Paper on the General Law of the Landlord and Tenant

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CHAPTER 4FIXTURES4.01 The law of “fixtures”, which determines when an item ofpersonal property has been so attached (“affixed”) to land that it isregarded as part of the land, is a notoriously difficult area of the law. 1Over the centuries much debate has occurred as to the tests or criteriato be applied to determine the issue in a particular case. This hasresulted in two tests in particular gaining recognition, namely (i) thedegree of annexation and (ii) the purpose of annexation. 2 What is ofspecial concern in this <strong>Consultation</strong> <strong>Paper</strong> is the application of the lawas between landlords and tenants.4.02 The issue of fixtures does arise frequently as betweenlandlords and tenants. 3 Over the period of a tenancy, even aresidential one, it would be very rare for the tenant not to install someitems in the demised premises. 4 It is also extremely common fortenants of business premises to install fixtures and fittings; indeed, itwill frequently be part of the initial agreement for the lease that thetenant will “fit-out” the premises in accordance with detailedspecifications. It was in recognition of this that the courts from earlytimes developed the notion of “tenant’s fixtures”.4.03 The concept of “tenant’s fixtures” is an elusive one andsomewhat confusing. In essence it refers to items so attached to thedemised premises that, according to the general law of fixtures, theywould be regarded as part of those premises and, therefore, belonging1234See generally Lyall Land Law in Ireland (2 nd ed Round Hall Sweet &Maxwell 2000) at 622-25 and 785-86.Per Andrews LJ in Re Ross & Boal Ltd [1924] 1 IR 129, 136. See alsoMoore v Merrion Pier and Baths Co (1901) 1 NIJR 184; Whelan vMadigan [1978] ILRM 136; Maye v Revenue Commissioners [1986] ILRM377. Note the review of this subject by the House of Lords in ElitestoneLtd v Morris [1997] 2 All ER 513.See Wylie Irish Landlord and Tenant Law (2 nd ed Butterworths 1998)Chapter 9.See Whelan v Madigan [1978] ILRM 136 (television aerials).73
to the landlord. However, because this is regarded, in certaincircumstances, as unfair to the tenant who installed the items, the lawregards the items as “tenant’s fixtures” which can be removed fromthe demised premises by the tenant. The result is that, whenever atenant installs an item in the demised premises, the followingquestions need to be addressed: (i) has the item been so attached thatunder the general law it should be regarded as a fixture? If the answeris no, then the item remains an item of personal property belonging tothe tenant and the landlord has no claim on it. If the answer is yes,the next question which must be addressed is: (ii) does the fixture fallinto the category of a tenant’s fixture? If the answer is no, then as afixture which has become part of the demised premises the itembelongs to the landlord and will have to remain attached to thepremises when they revert to the landlord on the determination of thetenancy. If the answer is yes, then the tenant has a right of removalwhich must be exercised in accordance with the law. Beforeexamining that law there is one practical point which requiresdiscussion in this context.4.04 As indicated in the previous paragraph, the special treatmentof “tenant’s fixtures” by the law is a limited one. An item comingwithin this concept is, as the description itself emphasises, still a“fixture”, ie, it is regarded as belonging to the demised premises. Allthat the tenant has is a right of removal despite the fact that the itemhas become a fixture. The traditional theory has, therefore, been thata tenant’s fixture is regarded as belonging to the landlord until thetenant exercises the right of removal, 5 thereby severing the item fromthe demised premises. It is not clear how far the Irish courts adhere tothis theory 6 and there may be an argument that the founding of therelationship of landlord and tenant on the agreement of the parties bysection 3 of Deasy’s Act militates against it. 74.05 Whatever the theory, there is no doubt that it can causeconsiderable practical difficulties and may operate unfairly on the567Crossley v Lee [1908] 1 KB 86 (tenant’s fixture could not be taken indistress for rent); see also Climie v Wood [1861-73] All ER Rep 831(mortgage of landlord’s interest captures tenant’s fixtures).Cf Earl of Antrim v Dobbs (1891) 30 LR Ir 424 (tenant’s fixture taken inexecution under a writ of fieri facias following a judgment against thetenant).See Wylie op cit paragraph 9.03 and following.74
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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
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preliminary conclusion that any re-
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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
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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
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Page 75 and 76: eferred to as a severance of the in
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Page 86 and 87: A Common Law4.09 Originally at comm
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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
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Page 104 and 105: for sale. 14 This matter is again o
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Page 110 and 111: 6.13 To some extent the very limite
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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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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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