Landlord and Tenant

Question 1

What is a lease?

Answer 1

A proprietary interest in land creating possession for a time certain in consideration for rent.

S.3 Deasy’s Act: an agreement by one party to hold land from or under another in consideration of any rent.

Question 2

Covenants

Answer 2

Promises which parties to a lease make to one another.

Question 3

S.3 Deasy’s Act

Answer 3

The relation of landlord and tenant is founded on contract.

Question 4

Subletting

Answer 4

No provision in Deasy’s Act as subletting creates a new contract governed by s.3 like any other lease. Subletting does not require the consent of the landlord unless the lease contains a provision to that effect.

Question 5

Lace v Chantler

Answer 5

Lease of a factory to run ‘for as long as the present war continues’.
H Lords hold that cannot have such a lease–must be for a time certain.
Probably not the position in Ireland due to s.3 Deasy’s Act.

Question 6

Periodic tenancy (tenancy from year to year)

Answer 6

An implied lease whichi arised as a result of overholding. Will continue until one party gives notice of termination.

Question 7

Earl of Meath case

Answer 7

Presumption in a periodic tenancy that all terms of the agreement continue to apply.

Question 8

Tenancy at will and at suffereance

Answer 8

Overholding but the rent is not being paid. Landlord consents to your being there in former, not in latter. Both abolished by LCLRA.

Question 9

Statutory tenancy

Answer 9

A tenant whose right to a tenancy is dependent on some statutory authority.
e.g. Landlord and Tenant (Amendment) Act 1980 part II rights for businesses.

Question 10

Landlord and Tenant (Amendment) Act 1980 part II

Answer 10

Permits a tenant running a premises with the purpose of running a business to a new lease for a 20 year term after they have completed a 5 year tenancy.

Question 11

Two parts to discerning between a lease and a license

Answer 11

1. Interpreting the terms of the agreement (natural and ordinary meaning)
2. Categorising those terms into a personal or proprietary interest.

Question 12

Gatien case

Answer 12

Caretaker agreement between the tenant and the defendant oil company. Would reside over the premises for a week before completing their three year tenancy.

Held: look at the intention of the parties from the agreement as a whole. Contractarian approach. IESC held that it was a license.

Question 13

Whipp v Mackey

Answer 13

Principle that the lables of a contract do not determine the substance of the agreement.

Concerns about the protection of tenants, given that landlords have an effective monopoly over the land, tempered only by statutory protections afforded to tenants but not contractual licensees.

Facts: agreement permitting the mooring of eel tanks to an island on the River Shannon.

Held: was a license agrereement. The labels ‘tenant’ or ‘rent’ did not change that.

Question 14

Irish Shell v Costello (no 1)

Answer 14

Majority judgment: looked beyond the labels of the license agreement to find that the substance of the contract was to create a lease. Of particular importance was that a clause in an earlier agreement stated that contract was not a lease, but that was omitted from the current agreement.

Kenny J dissenting – license as there was nothing in the nature of rent payable.

Question 15

Irish Shell v Costello (no 2)

Answer 15

Tenant remained in possession after the lease ran out. Paid a ‘license fee’ while negotiating a new agreement.

O’Higgins CJ: tenancy by will
McCarthy J: tenancy from year to year
Henchy J: License

Question 16

Smith v Irish Rail

Answer 16

License agreement to run a shop in Tara St station. Grantee agreed to be a licensee.

Peart J took the non-contractarian approach, finding that all the characteristics of a lease were present. Found it to be a lease.

Professor Wylie criticised this case: in commercial context, must have regard for the intention of the parties.

Question 17

Esso Ireland v 911

Answer 17

Contrasts Smith. License agreement held to be a license even though it had the characteristics of a lease.

Question 18

Street v Mountford

Answer 18

Lord Templeman and the sham doctrine: a five-pronged implement is a fork, not a spade, regardless of what the manufacturer thinks.

Facts: Residential agreement. Exclusive possession was relied on to find that it was a lease rather than a license.

Question 19

Antoniades v Villiers

Answer 19

Classic case on the sham doctrine.

Residential ‘licence’ of a 1-bedroom flat in which a couple were residing as husband and wife was held to be a lease. The court ignored the agreement’s intention and rejected as fanciful the suggestion that the landlord might exercise a right to move in with the couple.

Question 20

Cluid Housing Association v Whelan [2022]

Answer 20

Recent example of the lease/license distinction in a residential context.

Facts: The plaintiff’s apartment was damaged after a storm. The housing authority agreed to move them temporarily to allow their apartment to be repaired.

Held by Bolger J: agreement was always intended to be temporary and created only a license. Applied Gatien to reason based on intention. Resulted in the plaintiffs being evicted and being place back on a housing waiting list.

Question 21

Factors of a tenancy

Answer 21

1. Possession
2. Rent
3. Time certain
4. Formalities

PRFT. Patrick Richard Francis Treacy.

Question 22

Northern Ireland Renewables case

Answer 22

Facts: Rent attached to wind turbines, none had been installed at the time and so rent was owing.

Rent: IECA held that it was ‘probable’ that there could be no relationship of landlord and tenant where rent had not been paid.

Question 23

Prudential Assurance case

Answer 23

Lease was created for a period until the land was required for road widening.

Held: not a time certain, but created a periodic tenancy terminable by notice.

Question 24

Deasy’s Act Grants

Answer 24

Leases for lives or for a time uncertain. Recognised pre-2009 in s.11 LCLRRA

Question 25

S.14 LCLRA

Answer 25

Prohibits the creation of leases for lives.

Question 26

Requirement of signature in Deasy's Act

Answer 26

In statute of frauds, an authorised agent may sign a memorandum. Under Deasy's Act, the agent'y authority to sign must itself be in writing. Now re-enacted in s.51 LCLRA 2009.

Question 27

Statute of Frauds requirements

Answer 27

1. Must be documented prior to the commencement of the action which it seeks to enforce. 2. It must include the 3 Ps: parties, property, and price. 3. Signature

Question 28

The rule in Walsh v Lonsdale

Answer 28

The agreement for the lease is as good as the lease, as equity looks on that as done which ought to have been done. Only works if: (i) Valid agreement with complete terms (although can have failure in the formalities). (ii) There must be some act of part performance (some consideration)

Question 29

Leases by estoppel

Answer 29

If you are told that you are a tenant and you have relied upon landlord representation and have incurred cost as a result than you become a tenant by estoppel, the landlord is estopped. (Same idea as Walsh v Lonsdale--what ought to have been done is done)

Question 30

Keenan v Walsh

Answer 30

- Keenan sublet two rooms to Walsh in breach of the terms of the mortgage on the premises. Held: K could not rely on that prohibition to deny the effectiveness of the arrangement as between K and W.

Question 31

Assignment

Answer 31

The transfer the benefit of a lease to someone else. The landlord can also assign their fee simple in reversion (although technically just a sale).

Question 32

Landlord's covenants (implied)

Answer 32

1. Right to receive rent and the benefit of the tenant's covenants 2. Freehold reversion 3. Retains rights of inspection (at agreed reasonable hours) s.41 Deasy's Act: implied warranty of good title

Question 33

Tenant's covenants (implied)

Answer 33

1. Payment of rent 2. Right of quiet enjoyment 3. Obligation to deliver up the land peacefully at the end of the tenancy

Question 34

Spencer's Case

Answer 34

At common law, leasehold covenants run with the land provided that they touch and concern the land itself and are not purely personal privileges. Currently: the law is essentially the same following the the interpretation of Deasy’s Act ss.12 and 13 in Lyle v Smith. Covenants that run with the land create privity of estate between L and T.

Question 35

ss. 12 and 13 Deasy's Act

Answer 35

Replaces common law concept of privity of estate. The benefit and the burden of a leasehold covenant are enforceable by and against the assignee of the original parties. Interpreted in Lyle v Smith.

Question 36

Lyle v Smith

Answer 36

ss.12 and 13 of Deasy's Act applies only to covenants that touch and concern the land.

Question 37

Meagher case

Answer 37

If landlord's consent is withheld (unreasonably) IESC held remedies are: 1. Declaration and assign 2. Assign and defence 3. Assignee can do same 4. If court finds reasonable, assignee can seek relief from forfeiture.

Question 38

Rice case

Answer 38

- In a s.67 L and T case, the onus is on the tenant to show that the refusal to consent to change of use is unreasonable. On the principle that the person who asserts must prove. - Onus not shifted even if the landlord gives no reason. - Tenant must established a prima facie case of unreasonableness. - If no reasons are given at the trial stage then the refusal is unreasonable.

Question 39

White v Carlisle Trust

Answer 39

Unreasonable to refuse solely because a change in use would create competition with other tenants. Another tenant sweet shop nearby, but no effect on landlord's financial position.

Question 40

Green Property v Shalaine

Answer 40

Landlord allowed to account for "tenant mix" in a SC where the change in user would've introduced a second toy shop.

Question 41

Distinguishing White and Green (both McWilliam J).

Answer 41

A detriment to another of the landlord’s tenants is unreasonable unless it has an impact on the landlord’s own financial position. This is only the case in shopping centres, where a sufficient “tenant mix” increases footfall and generates more lucrative tenancies for the landlord.

Question 42

OHS v Green Property

Answer 42

Fruit and vegatable store in a SC --> building society. Landlord called it 'dead frontage', already had such tenants in the SC. Court held this was reasonable.

Question 43

Dunnes Stores (Ilac Centre)

Answer 43

Long-term tenant in a Dublin SC sought to change use to a 'high quality food hall'. Held: Clarke J questioned the authneticity of the landlord's reason of 'estate management'. In fact, they were refusing as collateral to force the tenant to give up the lease (there was on ongoing dispute about rent).

Question 44

Perfect Pies case

Answer 44

Landlord was held to have an ulterior motive for withholding consent. Unreasonable. Strengthens position of tenants. Landlord cannot withhold consent w/o any reason and then produce that reason at the trial stage. Outlined a number of principles: e.g. Cannot refuse on grounds unrelated to the L and T relationship. Landlord has to prove that that a reasonable man could have come to those justifications in the circumstances. Could be unreasonable if the landlord disproportionately considers only their own interest.

Question 45

Ending the relationship between L and T

Answer 45

FREND Forfeiture; rent (non-payment of); expiry; notice to quit; denial of landlord's title