On 18 December 2003 the Minister for Justice Equality and Law Reform Michael McDowell TD will launch the Law Reform Commission’s Consultation Paper on the general law of landlord and tenant. The Consultation Paper is the second to be published as part of a consolidation exercise in Landlord and Tenant Law which the Commission has undertaken. The first, published in March 2003, was on Business Tenancies (LRC CP 21–2003). The Consultation Paper makes provisional recommendations for reform and invites submissions on the recommendations.
The Consultation Paper reviews both the common law and statute law, including Deasy’s Act of 1860, which continues as the foundation of the law of landlord and tenant in Ireland, and makes over one hundred provisional recommendations. It begins by examining the general relationship of landlord and tenant and recommends the retention of section 3 of Deasy’s Act, which introduced the notion that the relationship of landlord and tenant is one of contract, but that new statutory guidelines should require the courts to give effect to the express provisions of documents relating to the occupation or use of land.
Other areas discussed in the Consultation Paper include:
- The Commission recommends guidelines for more precise use of language in any legislation on landlord and tenant law.
- The Commission recommends a new statutory provision governing assignment by the tenant which should make clear that it is open to the original parties expressly to prescribe that a particular tenant’s obligation is personal to the original tenant and does not pass to a successor in title.
- In relation to fixtures, it is recommended that a new statutory provision should provide that the ownership of any items of property installed in the premises should be set out in the lease, with default provisions to operate in their absence.
- A new statutory scheme is also proposed for the area of obligations which would take the form of overriding and default obligations, with only the latter capable of being varied by the parties.
- The Commission provisionally recommends that a tenant’s default repairing obligation should not extend to putting into repair or improving the condition of the premises at the commencement of the tenancy nor should it include an obligation to redress normal wear and tear.
- In relation to insurance, a set of statutory default provisions applicable to all tenancies is proposed.
- The Commission provisionally recommends that there should be a statutory presumption that where a greater and lesser estate in land vest in the same person or body, without any intermediate estate or interest being outstanding, a merger takes place, unless the instrument bringing about the vesting contains an express provision to the contrary.
- Given its draconian effect on the tenant, the Commission considered whether the landlord’s right to forfeit a lease should be maintained at all and concluded that some radical reform was needed.
- The main difficulty with ejectment is the several forms which such actions take, each involving different rules. To address the existing ejectment problems the Commission provisionally recommends a consolidation form of action which should be dealt with by rules of court rather than by primary legislation.
Unlike the Consultation Paper on Business Tenancies, which concentrated on a discrete area of the law, the current Paper deals with the general law relating to the relationship of landlord and tenant. This law applies to all categories of the relationship, whether residential, business or agricultural. That said, in view of the Report of the Commission on the Private Rented Residential Sector and the governmental acceptance of its recommendations, the Commission does not retrace the ground covered by it, and so this Consultation Paper does not deal directly with matters already covered by the Residential Tenancies Bill 2003.
The Commission usually publishes in two stages: first, the Consultation Paper and then the Report. The Consultation Paper is intended to form the basis for discussion and accordingly the recommendations, conclusions and suggestions contained herein are provisional. The Commission will make its final recommendations on this topic following further consideration of the issues and consultation. Submissions on the provisional recommendations included in this Consultation Paper are welcome. Those who wish to make their submissions are requested to do so in writing to the Commission by 31 May 2004.
Consultation Paper on the General Law of the Landlord and Tenant