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LANDLORD AND TENANT
Dramatic overhaul in 1860 - landlord and tenant law amendment act 1860
➢ 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
Replace section 3 of deaseys act and replace the relationship:
(1) the same
(2) payment of rent necessary in all cases.
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.
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 ManchesterSubstance over title
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 oThe pedal pumps locked
Owner not allowed access to them
They had to write into the agreement that there was right to inspect the premises (by the owner)
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 judgementHad 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 Smith entered into an agreement to operate a newsagents/ sweetshop at tara dart station.there was a very elaborately worded clause:No exclusive possession and no intention to create a tenancy.
License for ten years
No exclusive possession for occupier.
The landlord wanted it to be a license as the P would have been entitled to an automatic renewal under legislation of business tenancies. The railway company did not want to do this due to limited shops and potentially very valuable - long term did not suit them.You have to give pre-eminence to the substance of the terms
Legal effect and facts instead
Was there in fact legal possession:The tenant had no key to enter into the sweet shop to prevent exclsuvie possession
Couldn't undertake repair work
The occupier had full control over who exited and entered
Full control over displays etc.
Seems that the 'tenant' was:Autonomous from the owner.
The entire document must be assessed…not just…
The only thing that inferred against a tenancy was the clause.
The curts have said that this is a factor but not a decisive factor:
O'siochain v O'mahonyA lease did not exist under the facts despite the appearance of exclusive possession where payments of rent (even if under a different name to rent) or leasehold covenant are present
There need to be additional evidence than exclusive possession
Most of these cases revolve around commercial
Most commercial landlords can afford to litigate
This skews the nature of landlord/ tenant law
In UK there are more private cases but in Ireland pre-dominantly commercial
We can extrapolate points from commercial cases to residential cases.
Parties:More likely to have access to legal advice
More likely to be on equal terms. - Courts less likely to intervene and strike out terms.
➢ Keep in mind in relation to differences if it was private law.
• While less likely to intervene, they will where cases necessitate it.
Gatien Motor Company v Continental oil
Occupier would have been entitled after 3 years would have been entitled to new tenancy under landlord and tenant act. To avoid this, the landlord insisted that there would be a term whereby the occupier would be a 'caretaker' of the property rather than licensee/ tenant or any other title.Even though it gave occupier exclusive possession, this was not a tenancy
Equal footing is a strong element.
No payment in rent during 2 week period - was this the decisive element?
Irish Shell v CostelloeAgreement a tenancy even though described as a license -
National MaternityFollowed costelloe
SmithAlso intervened and deemed lease rather than license
➢ Gatien an outlier or exception.
House of lords:
Street v Mountford
Emphasis on exclusive possession significant in determination of lease or license
Landlord entered into agreement with P giving her a right to occupy a furnished room…certain rents weekly payment described as a 'license fee'/ the contract said it was a license, she had to sign that she understood it was not a lease and that she would not be entitled under the rent act in the UK. It also said she had to give 14 weeks' notice.
Landlord wanted a declarationShe had exclusive possession = lease.
Exclusive possession with payment of rent for a fixed term
This is a presumption that can be rebutted but no facts rebut this
Cited very regularly - should be mentioned in lease/license
Ag Securities v Vaughan
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