Consultation Paper on the General Law of the Landlord and Tenant

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A Common Law4.09 Originally at common law a fixture was regarded as atenant’s fixture (and, therefore, removable by the tenant) if it wasinstalled in the demised premises for the purposes of the tenant’strade or for ornamental and domestic purposes. 18 The formercategory, of fixture for trade purposes, covered a very wide range ofitems, but it seems that the latter category of fixtures for ornamentaland domestic purposes may have been more limited in the sense thatit would not apply where the item could not be removed in its entirestate, ie without dismantling. 194.10 The category of trade fixture did not apparently apply toagricultural tenants, 20 but that position was changed by the Landlordand Tenant Act 1851. 21 The 1851 Act gave agricultural tenants astatutory right to remove agricultural and trade fixtures, and buildingserected by them, provided prior notice was given to the landlord andthe land was left in as good a condition as before the fixtures wereinstalled. The landlord was, however, given the right to elect topurchase the items instead. Although the 1851 Act remains on ourstatute book, 22 it was largely superseded by later legislation. 23 In anyevent agricultural tenancies largely disappeared from the Irish sceneas a result of the Land Purchase Acts. There has been little sign ofthe revival of agricultural tenancies which the Land Act 1984 wasdesigned to promote. 24 Apart from this, arguably the 1851 Act lost18192021222324See Deeble v McMullen (1857) 8 ICLR 353; Barnett v Lucas (1872) IR 6CL 247; Cosby v Shaw (1887) 23 LR Ir 181; Earl of Antrim v Dobbs(1891) 30 LR Ir 424. See paragraph 4.11 for section 17 of Deasy’s Act.See Buckland v Butterfield (1820) 2 Brod & B 54 (conservatory on brickfoundation). See also Spyer v Phillipson [1931] 2 Ch 183; Young vDalgety Plc [1987] 1 EGLR 116.Elwes v Maw (1802) 3 East 38. Cf market gardeners: see Wardell v Usher(1841) 3 Scot NR 508; Mears v Callender [1901] 2 Ch 388.This Act applied to both England and Ireland.In England it was replaced by later agricultural holdings legislation: seenow Agricultural Holdings Act 1986 and Agricultural Tenancies Act 1995.Eg section 4 of the Landlord and Tenant (Ireland) Act 1870 conferredrights to compensation for improvements made by tenants.This “disapplied” the old nineteenth century legislation, such as the 1870Act, but not the 1851 Act.77
most of its significance with the enactment of the comprehensiveprovision contained in section 17 of Deasy’s Act. 25B Deasy’s Act, Section 174.11 This is a somewhat convoluted provision which is worthquoting in full:“Personal chattels, engines, and machinery, and buildingsaccessorial thereto, erected and affixed to the freehold bythe tenant at his sole expense, for any purpose of trade,manufacture, or agriculture, or for ornament, or for thedomestic convenience of the tenant in his occupation of thedemised premises, and so attached to the freehold that theycan be removed without substantial damage to the freeholdor to the fixture itself, and which shall not have been soerected or affixed in pursuance of any obligation or inviolation of any agreement in that behalf, may be removedby the tenant, or his executors or administrators, during thetenancy, or, when the tenancy determines by some uncertainevent, and without the act or default of the tenant, withintwo calendar months after such determination, except so faras may be otherwise specifically provided by the contract oftenancy; provided that the landlord shall be entitled toreasonable compensation for any damage occasioned to thepremises by such removal.”To a large extent this provision recognises the principles evolved bythe courts in respect of tenant’s fixtures, supplemented by theprovisions for agricultural tenants introduced by the Landlord andTenant Act 1851. In essence it would appear to operate as a “default”provision where the parties have not made an express agreement as tothe items in question. 26 The Commission takes the view that thisshould be the basis of the law, as it accords with the fundamentalprinciple of founding the relationship of landlord and tenant on the2526Note the reference to the purpose of “agriculture” in section 17: seeparagraph 4.11 below.The suggestion that the reference to the parties’ agreement relates only tothe two calendar month period for removal was rejected in Cosby v Shaw(1887) 23 LR Ir 181, 199 (per Naish LJ).78
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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
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the nature of a tenant’s interest
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Page 42 and 43: CHAPTER 2FORMALITIES2.01 This chapt
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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
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Page 62 and 63: CHAPTER 3SUCCESSORS IN TITLE3.01 Th
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Page 82 and 83: CHAPTER 4FIXTURES4.01 The law of
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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
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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 120 and 121: CHAPTER 8RENT AND OTHER PAYMENTS8.0
Page 122 and 123: 8.04 Section 42 of Deasy’s Act do
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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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