The Gazette 1979

GAZETTE

JULY-AUGUST 1979

Aspects of The Landlord and Tenant (Amendment) Bill 1979 By John F. Buckley

scheme of protection for tenants and it was probably intended particularly to protect tenants on whom notices to quit had been served in advance of the passing of the 193 1 Act by landlords who were aware of its proposed provisions. No such situation currently exists. The effect of Section 29 of the Bill appears to extend to cases where a tenant whose term of years has expired has served a Notice of Intention to Claim Relief uner the 1931 Act but to whom a new tenancy has not yet been granted. Under Section 29 of the Bill the tenancy which arose on the termination of the old tenancy would be deemed to terminate immediately on the coming into operation of the Bill. The effect of this would be that the tenant would have to serve a new notice of Intention to Claim Relief and of course, his claim would come under the new Act and not under the 1931 Act. This could only have the effect of encouraging landlords to delay concluding a new tenancy with any tenant who has already served a Notice of Intention to Claim Relief in the hope that the provisions of the Bill, when enacted, would be more favourable to landlords. The Bill also contains provisions in Part III relating to reversionary leases. There appears to be a conflict between Section 31 (4) and Section 34 (2) of the Bill in so far as the commencement of the reversionary term is concerned. If the matter is not dealt with by way of amendment at a later stage in the Bill's passage through the Dáil, presumably the latter Section will be the governing one. A provision has been introduced in Section 35 of the Bill providing for an abatement of the rent reserved by a reversionary lease to take into account improvements that may have been carried out by the lessee and it appears to suggest some confusion of thought on the part of the draftsmen. Such a provision is naturally appropriate to the calculation of the rent of a building but since a rent under a reversionary lease is supposed to relate to the site value it is not clear why improvements made by the lessee should be taken into account. The following is a summary of the other major changes introduced by the Bill: (1) The abolition of the artificial 'termination' of a lease, introduced by Section 19 of the 1931 Act, and the placing on the landlord of an obligation to serve a notice of termination on the tenant (section 20). (2) The abolition of the seven year qualification period under Section 19(a) of the 1931 Act where the expired tenancy was less than year to year. The tenant is to get rights if he has used the premises for the whole of a three year period next before termination for the purpose of carrying on a business (Section 13). (3) Where a tenant delays in bringing an application to the Circuit Court to have the terms of a new lease determined the landlord may now do this (Section 21(2)). (4) There is a provision for application to the Circuit 115

The Landlord and Tenant (Amendment) Bill 1979 ('the Bill*) is, of course, as welcome as it is overdue. The Bill is primarily intended to introduce, with modifications, the major recommendations contained in the Report of the Landlord and Tenant Commission (popularly and properly referred to as 'the Conroy Commission', after its Chairman, Mr. Justice Charles Conroy) published as long ago as 1969 (PR 9685) and the remaining recommendations (not already enacted) contained in the Conroy Commission Report published in 1968 (PRL 59). Before giving a summary of the principal and welcome changes proposed by the Bill, reference must be made to two proposals which in my view are unwelcome. The first is the proposal to put the State into a better position than a private individual where a commercial relationship of landlord and tenant is involved and the second is the proposal to interfere with the existing machinery of the Landlord and Tenant Act 1931 ('the 1931 Act') in particular cases where that machinery has already commenced to operate. First, Section 4 of the Bill provides that the Bill is not to apply to the State in its capacity as Lessor. In a number of decisions the Courts have held that where premises were held under lease by the Commissioners of Public Works and were occupied by another Government department or semi-state body, there was no right to a renewal under Part III of the 1931 Act. It would have seemed reasonable, as has been done, to remedy this situation by providing that the Commissioners of Public Works would be entitled to renewals of Leases where premises were actually occupied by Government departments or semi-state bodies with the permission of the Commissioners. This exclusion of the State as a lessor from the operation of the Bill seems highly unreasonable. It is not easy to see why the State if it chooses to involve itself in the letting of commercial properties in particular should he in any better position than a private individual or limited company engaging in such lettings. The effect of this provision would be to deprive any person currently holding under a lease from his existing inchoate rights under the 1931 Act. The second unwelcome proposal in my view is that pontained in Section 29 of the Bill which has been Imported word for word from the Section 39 of the 1931 Act and this must raise the query whether it was automatically imported without considering its effect. The existing Section 39 of the 1931 Act provided that where a tenancy in a tenement terminated before the passing of the 1931 Act, but the tenant was still in occupation without a n ew tenancy, even if a decree in ejectment had been made a gainst the tenant, that tenancy would for the purposes of ^ e 1931 Act be deemed to have terminated immediately uftcr the passing of the 1931 Act and the 1931 Act would pPply accordingly. Section 39 of the 1931 Act was mtroduced at a time when there was no comprehensive