LANDLORD AND TENANT
The relationship:
• Dramatic overhaul in 1860 – landlord and tenant law amendment act 1860
• Deaseys act
s.3
➢ the relationship…express or implied contract of the parties and not upon the tenure or
service.
- Put it on contractual basis
➢ In all cases where an agreement by one party to hold land from or under another in
CONSIDERATION of ANY rent.
• Not literally applied
• More than a contract
• If it was just a contract it would only bind the parties
• Property interests can be enforced by third parties, though.
• A not yet enacted bill has been on the table for 7 years: work is ‘ongoing’.
The draft of General Scheme of Landlord and Tenant Law Reform Bill
• Modernisation.
- Replace section 3 of deaseys act and replace the relationship:
- (1) the same
- (2) payment of rent necessary in all cases.
LCLRA
S 11 (3)
- a leasehold is a LEGAL ESTATE.
- Thus, a tenant has a proprietary interest on the land
- Meaning can enforce against a third party.
- A license is to give someone permission to be on land – otherwise b trespass.
- This is merely a personal interest – leases are legal interests vesting them with a proprietary
share.
THE DIFFERENCE
• License personal – lease proprietary
• If an agreement is described by the parties as a licence – does this mean it is legally
recognised as a license?
• The courts will look at the substance rather than the title
• The landlord can extract terms that are beneficial to the landlord and less beneficial to the
tenant.
• Over the years, the state has intervened to reduce or mitigate the discretion that the
landlords will have – address the imbalance of power.
• Protections to tenants have been increased.
, • To get around this, landlords tend to say: this only applies to leases and I only gave them a
license and therefore they don’t get the legislative benefits.
Shell Mex v Manchester
- Substance over title
IRISH
IRISH SHELL V COSTELLO NO.1
The premises was a garage. Repair section and petrol pumps, workshops etc. it was owned by irish
shell and the licensee/ tenant was Costello. The nature of the control hat the owner had over the
garage was as follows:
o The pedal pumps locked
o Owner not allowed access to them
o They had to write into the agreement that there was right to inspect the premises (by the
owner)
o Exclusive occupation except for monthly right of inspection.
- It was intended that the defendants should have the right of inspection.
- It was also found that there were payments set out I n the agreements, described as
payments for the ‘hire’ of the garage agreements –
- Inferred that these were payments of rent
- The payments were on a regular basis
- All these factors point to a lease rather than a license agreement.
➢ Licenses have different regimes and protections for residential tenancies on one hand and
commercial on the other. A lot of license/lease cases revolve around this.
• After the first decision (No.1) when they determined it was a lease, the parties terminated
the agreement.
• What was the nature of their agreement after it?
- They continued to make the monthly payments after the decision, and this was deemed to
me a continuing tenancy – a tenancy at will
- When it ended, the defendant then became trespassers on the property.
HENCHY J – other, majority judgement
- Had they stayed on and payed monthly rent, they would have been monthly tenants
- The monies paid was described as a license fee and not rent
- He was convinced that they were licensees by the time it ended.
- Again, when the license expired they became trespassers.
Minority:
- Tenancy did not come to an end
Smith v CIE & IARNROD EIREANN
The relationship:
• Dramatic overhaul in 1860 – landlord and tenant law amendment act 1860
• Deaseys act
s.3
➢ the relationship…express or implied contract of the parties and not upon the tenure or
service.
- Put it on contractual basis
➢ In all cases where an agreement by one party to hold land from or under another in
CONSIDERATION of ANY rent.
• Not literally applied
• More than a contract
• If it was just a contract it would only bind the parties
• Property interests can be enforced by third parties, though.
• A not yet enacted bill has been on the table for 7 years: work is ‘ongoing’.
The draft of General Scheme of Landlord and Tenant Law Reform Bill
• Modernisation.
- Replace section 3 of deaseys act and replace the relationship:
- (1) the same
- (2) payment of rent necessary in all cases.
LCLRA
S 11 (3)
- a leasehold is a LEGAL ESTATE.
- Thus, a tenant has a proprietary interest on the land
- Meaning can enforce against a third party.
- A license is to give someone permission to be on land – otherwise b trespass.
- This is merely a personal interest – leases are legal interests vesting them with a proprietary
share.
THE DIFFERENCE
• License personal – lease proprietary
• If an agreement is described by the parties as a licence – does this mean it is legally
recognised as a license?
• The courts will look at the substance rather than the title
• The landlord can extract terms that are beneficial to the landlord and less beneficial to the
tenant.
• Over the years, the state has intervened to reduce or mitigate the discretion that the
landlords will have – address the imbalance of power.
• Protections to tenants have been increased.
, • To get around this, landlords tend to say: this only applies to leases and I only gave them a
license and therefore they don’t get the legislative benefits.
Shell Mex v Manchester
- Substance over title
IRISH
IRISH SHELL V COSTELLO NO.1
The premises was a garage. Repair section and petrol pumps, workshops etc. it was owned by irish
shell and the licensee/ tenant was Costello. The nature of the control hat the owner had over the
garage was as follows:
o The pedal pumps locked
o Owner not allowed access to them
o They had to write into the agreement that there was right to inspect the premises (by the
owner)
o Exclusive occupation except for monthly right of inspection.
- It was intended that the defendants should have the right of inspection.
- It was also found that there were payments set out I n the agreements, described as
payments for the ‘hire’ of the garage agreements –
- Inferred that these were payments of rent
- The payments were on a regular basis
- All these factors point to a lease rather than a license agreement.
➢ Licenses have different regimes and protections for residential tenancies on one hand and
commercial on the other. A lot of license/lease cases revolve around this.
• After the first decision (No.1) when they determined it was a lease, the parties terminated
the agreement.
• What was the nature of their agreement after it?
- They continued to make the monthly payments after the decision, and this was deemed to
me a continuing tenancy – a tenancy at will
- When it ended, the defendant then became trespassers on the property.
HENCHY J – other, majority judgement
- Had they stayed on and payed monthly rent, they would have been monthly tenants
- The monies paid was described as a license fee and not rent
- He was convinced that they were licensees by the time it ended.
- Again, when the license expired they became trespassers.
Minority:
- Tenancy did not come to an end
Smith v CIE & IARNROD EIREANN
