Landlord And Tenant Law

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1. What is a Lease?

A) Definition

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s 3 Deasy's Act (Landlord and Tenant Law Amendment (Ireland) Act 1860)

'Therelation of landlord and tenant shall be deemed to be founded on the express orimplied contract of the parties, and not upon tenure or service, and areversion shall not be necessary to such relation, which shall be deemed tosubsist in all cases in which there shall be an agreement by one party to holdland from or under another in consideration of any rent.'

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B) Lease as a Proprietary Right

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Governed by an express or implied contract

Does not created a feudal relationship

So the core elements are what the parties agree

Hammersmith & Fulham v Monk

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C) Reversion

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Once the lease ends, the title reverts back to the grantor.

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D) Rent

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It's mentioned in the Act, but it's unclear whether it's necessary in order for a L-T relationship to exist.

Caselaw indicates it might be so. O'Siodhachain v O'Mahony.

The Draft Scheme of the Landlord and Tenant Bill 2011 seeks to clarify this by saying it's necessary.

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E) Types of lease

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i) Periodic tenancy

Month to month. Once notice is provided it can be ended.

ii) Lease for a certain term
Business leases usually. Pre-determined set of time which then gets brought to an end after.

iii) Reversionary lease

Does not commence until some later date

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2. Formation of a Lease (General)

A) Creation of a New Lease

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s 4 Deasy's Act

“Every lease or contract with respect tolands whereby the relation of landlord and tenant is intended to be createdfor any freehold estate or interest, or for any definite period of time notbeing from year to year or any lesser period, shall be by deed executed, or notin writing signed by the landlord or his agent thereunto authorised inwriting.”

Wright v Tracey, Heads of the Scheme Landlord and Tenant Bill.

1. Tenancy created at law only in a document signed by the landlord.

2. Does not apply to a tenancy for a recurring period shorter than a year.

3. Does not apply to a tenancy for fixed period shorter than a year unless the grant includes provision for an extension/renewal which would make it longer than a year.

4. Doesn't apply to tenancy by estoppel/other equity.

So summary, must be in writing for leases over a year.

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2(B): Assignment

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Tenant transfers his or her entire interest to a third party. The original tenant then ceases to have any interest or involvement in the tenancy and the assignee becomes the tenant who now owes obligations to the Landlord.

Section 9 Deasy's Act.

Needs to be in writing.

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2(C): Sub-lease

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Used in both residential and businesstenancies. Tenant creates a lease of part of the estate to a third party.Original LL and T, T then can sub-let a portion of the land to another companyor individual. In that case, the original LL and T situation exists, but now anew LL and T relationships is created between T and third party.

ss 66 of the Landlord and Tenant( Amendment) Act 1980

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2(D): Tenancy by Implication

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LL and T relationship. Enjoyed for setperiod. At the end, you should allow reversion to the landlord. Yet you decidenot to. If the landlord does nothing, and you overhold for a period of 1 month,and during that 1 month period the LL asks you to leave, and you don’t leave atthe end, LL has the right to assume a yearly tenancy. So a further 12 monthperiod.

Deasy's Act s 5

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2(E): Rule in Walsh v Lonsdale

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Note (not a contract) drawn up, moneysexchanged, and tenant went into possession of property. One of the terms of thelease was that the tenant had to pay rent in advance rather than at the end ofthe monthly period. For a month and a half they paid in arrears. LL sought to enforce the term of the(unsigned by him) lease. T brought this up, so doesn’t meet requirements underDeasy’s act, or formalities under statute of frauds.

Parties had part performed theirobligations so was found to be legitimiate, made for valuable consideration,even though he didn’t sign the lease, equity intervened and treated that whichought to have been done as done.

Is this as good as a lease? B/c it’sequitable, it’s a discretionary remedy. Court may not order performance of thequasi lease.

Basically the doctrine of part performance.

s 51 LCLRA 2009.

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3. Termination of a Lease

A) Forfeiture

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Ends the tenant's exclusive possession

Section14 of the Conveyancing Act 1881

Usually a clause saying if you breach this term there is a right of forfeiture. Must give notice and an opportunity to rectify the breach and pay compensation if necessary.

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3(B): Merger

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When the T's leasehold estate merges with a freehold estate so they own the land

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3(C): Surrender

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Signed by T or T's agent. Doesn't quash any claim by LL to rent for the full period.

s 7 Deasy's Act.

Foley v Mangan

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3(D): Ejectment

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T refuses to give up land.

Landlord can:

1. Get a landlord civil bill

2. If 1 year or more, doesn't apply to residential tenancies, unpaid, then under s 52 Deasy's Act the LL can get an order which orders tenant to pay rent. If they don't within 6 months they are ejected.

Albion properties Ltd v Moonblast Ltd. LL didn't want to wait 18 months, succeeded in obtaining injunction requiring the commerical tenant to deliver possession of the property.

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4. The Lease/Licence Distinction in LL/T law

A) What is a Licence?

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Thomas v Sorrell. Vaughan J:

“A … licence properly passeth no interest nor alters or transfersproperty in any thing, but only makes an action lawful, which without it hadbeen unlawful"

Under a licence, the licencee will not be able to access key protections under Irish LL/T law, whether residential or business.

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4(B): Characteristics of a Lease

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Court looks at aspects of the agreement, not whether they called it lease or licence.

A) Construction

B) Intention

C) Exclusive Possession

D) Payment of Rent

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4(B)(i): Construction of the Agreement

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1. True nature of the agreement

or

2. Where there is no written agreement, the court will examine the conduct of the parties

Smith v Irish Rail

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4(B)(ii): Intention of the Parties

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All contractual relationships contingent on intention to create legal relationships.

They are concerned here with the intention to create a particular type of legal relationship.

Gatien Motor Company v Continental Oil. When on equal footing and independent legal advice, could use licences to bypass tenant law.

Irish Shell & BP Ltd v Costello, Griffith held that on the true construction of the agreement, a L+T relationship was created. Agreement conferred a proprietary interest, not just personal privilege.

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4(B)(iii): Exclusive Possession

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Absence means the agreement is not a tenancy. Existence does not resolve whether it is a lease or a licence.

Street v Mountford. Exceptional circumstances where EP won't result in a presumption of a lease:

1) No intention to enter into a lease

2) Landowner does not have legal capacity to grant a lease

3) EP enjoyed is referable to some other legal relationship.

Courts acutely aware of stronger bargaining power of LL: Antoniades v Villiers. Clause saying LL can enter at any time was there to avoid the Rents acts, wasn't intended to be used, therefore irrelevant.

Westminster City Council v Clarke. Homeless shelter sort of place. They had the option to move them along, make him change rooms, that sort of thing. Therefore held that it was a licence, not a lease. He had no right of exclusive possession.

Bruton v London and Quadrant Housing Trust. Here, the Trust did not retain the same control over the premises as to invalidate a claim of exclusive possession. Therefore, he had exclusive possession, which led to presumption(to which there was no rebuttal) of a lease.

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4.(B)(iv) Payment of Rent

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O'Siodhachain v O'Mahoney, Murphy J:

'An agreement cannot in my view be regarded as a lease, because it fails to specify any rent'.

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5. Further Judicial Examination of Leases and Licences in Ireland: Protection or Paternalism?

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Irish Shell & Bp Ltd v Costello, Griffith J went beyond the wording of the agreement and found a L+T relationship existed, rather than a licence.

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5(a): The Governors of The National Maternity Hospital v McGouran

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Clause 2B and Clause 3 of the agreement, it wasspecifically stated that the agreement was for a licence only and “thelicensees shall be entitled to use the premises in common with the licensor”.In Clause 6 of the agreement, the Hospital had the power to move Mrs McG’s(described as ‘lessee’) premises at any time.

Lease or Licence?

Licence. The HC looked at the terms of the contract and the intentions. What mattered was the extent of control retained by the licencor and the lack of exclusive possession by the licencee.

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5(b): Kenny Homes Ltd v Leonard

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Again, the court prioritised the contract over the realistic position.

Both of these cases attracted criticism because they were leaving Costello behind, focusing more on the wording of the contract than reality.

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5(c): Smith v Irish Rail

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Peart J looked at the Street v Mountford decision again and the importance of exclusive possession.

Here he found there was exclusive possession, and therefore was again adopting the more of a realistic than a formalistic position.

Prof De Londras has been highly critical of this decision.