Consultation Paper on the General Law of the Landlord and Tenant

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tenant. Often an item installed in the premises by the tenant for thepurposes of the tenant’s business (a typical example of a tenant’sfixture 8 ) eg, expensive plant, machinery or equipment, will not havebeen bought outright by the tenant. Instead, it will have beenacquired by the tenant under a hiring or “leasing” arrangement, 9whereby ownership of the item will be retained by a third party (eg,the hiring or leasing company). If the tenant then installs the itemhired or leased in the demised premises in such a way that it becomesa fixture, a conflict arises. As a fixture, the item belongs to thelandlord and remains so until the tenant exercises the right ofremoval, yet according to the tenant’s hiring or leasing agreement theownership of the item is supposed to be retained by the hiring orleasing company. 10 Technically, therefore, the tenant’s actions ininstalling the equipment in the demised premises may be a breach ofthat agreement. If the tenant defaults on that agreement, so that thehiring or leasing company wishes to repossess the item in question, itpresumably has to rely upon the tenant exercising the right ofremoval. 11 This may give rise to all kinds of practical difficulties,especially where the tenant has disappeared or refuses to co-operate. 124.06 Difficulties may also arise under the taxation system.Where a tenant expends very substantial sums on the acquisition ofmachinery or plant for the business which is to be run on the demisedpremises, the tenant may wish to claim capital allowances in respectof income or corporation tax. Such “wear and tear” allowances canbe claimed only in respect of “machinery or plant” which “belongs”to the taxpayer and is used for the purposes of the taxpayer’s trade. 13It would clearly be unjust if the tenant, who has incurred the relevantcapital expenditure, were deprived of such allowances on the ground8910111213See paragraph 4.09 below.Attention was drawn earlier to this somewhat, confusing use of the conceptof leasing: see paragraph 1.03 above.See Re Galway Concrete Ltd [1983] ILRM 402 (batching plant,comprising two cement silos and two cement screw conveyors, obtained bytenant under a conditional sale agreement).Per Keane J in Re Galway Concrete Ltd ibid at 405-406.For an illustration of such problems see Lombard and Ulster Banking Ltd vKennedy [1974] NI 20.Section 284(1) of the Taxes Consolidation Act 1997.75
that so long as the machinery or plant is installed in the demisedpremises it does not belong to the tenant, but rather, under the law offixtures, to the landlord. 144.07 The Commission takes the view that the traditional theoryconcerning tenant’s fixtures is inappropriate. In particular, in most, ifnot all, cases it does not accord with what the parties will haveintended and, to that extent, is inconsistent with one of thefundamental principles of Irish landlord and tenant law, as enshrinedin Deasy’s Act. 15 It is, of course, possible that the Irish courts mighttake a different view if the issue were addressed specifically in thelight of the possible effect of section 3 of Deasy’s Act. 16 There isclearly a case for clarifying the law.4.08 The Commission appreciates that the view stated in theprevious paragraph may be regarded as calling into question thewhole notion of a tenant’s “fixture”. Arguably the very concept itselfis a misnomer, which causes more confusion than enlightenment. 17Before reaching any conclusion on this, something further must besaid about the current law. This is a mixture of the common law andstatute law.14151617Some English cases display a tendency to apply the strict law of fixtures:see Stokes (Inspector of Taxes) v Costain Property Investments Ltd [1984]1 All ER 849; Melluish (Inspector of Taxes) v BMI (No 3) Ltd [1995] 4 AllER 453.See paragraph 1.10 and 1.26 above.This was not done in either Re Galway Concrete Ltd [1983] ILRM 402(where the landlord made no claim to the items installed by the tenant) orLombard and Ulster Banking Ltd v Kennedy [1974] NI 20 (where thetenant had disappeared and the dispute was between the landlord and theleasing company wanting its machinery back).The law lords expressed similar dissatisfaction with the traditionalconcepts in Elitestone Ltd v Morris [1997] 2 All ER 513. Note that theEnglish Agricultural Tenancies Act 1995 abrogates the common law rightto remove tenant’s fixtures and provides that a fixture installed by a farmbusiness tenant remains his property so long as he remains in possession ofthe land: section 8(1).76
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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
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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
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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
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Page 82 and 83: CHAPTER 4FIXTURES4.01 The law of
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
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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
Page 126 and 127: one. 33 Disputes as to the new rent
Page 128 and 129: overholding. 47 The Commission prov
Page 130 and 131: on the landlord’s breach of repai
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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 Paper on the General Law of the Landlord and Tenant

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