Consultation Paper on the General Law of the Landlord and Tenant

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