The Gazette 1989

GAZETTE

DECEMBER 1989

Commission has sensibly suggested an amendment which would mean that plots of less than 2 hectares and which were not going to be used for either pastoral or agricultural purposes would not be subject to Section 45. This is a sensible and worthwhile suggestion which would ease the problems (at least in part) of the conveyors of shopping centres. The Family Home Protection Act Under the Family Home Protection Act, the prior written consent of a spouse must be given to any ,'conveyance" of the family home. Many conveyancers now have to spend a long time obtaining and checking spouses' consents in prev– ious transactions involving family homes since 1976. The Commiss– ion has recommended that where there has been a conveyancee (in the strict sense) of a family home without any objection from the other spouse for more than 6 years then such a conveyance should no longer be deemed to be void and that evidence of any consent by the spouse of supporting evidence for any such consent should no longer be required. Adverse Possession In Murphy -v- Murphy (1980) "adverse possession" was held to mean simply that the possession claimed to be adverse must be inconsistent with the title of the true owner with such inconsistency necessarily involving an intention by the occupier to exclude the true owner from enjoyment of the estate or interest in question. Later de– cisions have disagreed with this approach favouring the view that where the true owner of the land intended to put the land to a specific use at some time in the future and the defendant's occupation wa"s not inconsistent with that intended use, adverse possession would not be established. The Commission has recommended that the Murphy view be adopted and that the true owner's intention not be treated as a decisive factor. This is the app– roach adopted in other jurisdictions and it has worked well there. AMENDMENTS OF PERIOD OF LIMITATION

Limitations 1957 provides that a tenancy from year to year or other period without a lease in writing is ~ deemed to be extinguished at the end of the first year or other period. Thus, where there is an oral periodic tenancy, the tenancy automatically comes to an end at the end of the first year or whatever the period may be. The Commission recom– mends abolishing the distinction contained in 5.17(2) between periodic tenancies in writing and those created orally. Guarantor's Covenants The Commission has recommended that there be a statutory provision enacted which would provide that the benefit of a guarantor's coven– ant should pass with the transfer of the lessor's interest. This would be an eminently practical and useful development which has already happened in English law. The Commission recommends that Section 16 of Deasy's Act 1860, where the estate or interest of any original tenant in any lease was assigned with the consent of the landlord the consent of the lessor need merely be in writing executed by the lessor or the lessor's lawfully authorised agent. This would clear some of the doubts cast on 5.16 because of the enactment of S.35 of the Landlord and Tenant (Ground Rents) Act 1967 which repealed 5.10 of Deasy's Act and is thus a very worthwhile proposal from the Commission. The Commission proposes that 5.28 of the Landlord aFld Te{lant (Ground Rents) Act 1978 be amended so as to limit its operation so that it does not affect covenants which have been entered into by landowners with third parties. AMENDMENTS TO LANDLORD AND TENANT LAW Landlord's Consent to Assignment Abolition of Covenants Affecting Land

Substantial Solicitors Practice Convenient to Dublin For Sale Owner Retiring Reply to Box No.521. it applies to business tenancies provided that both parties have independent legal advice. This is a proposal of considerable utility and will be of use to a wide range of landlords and tenants particularly those involved in temporary letting agreements. Section 23 of the Landlord and Tenant (Amendment) Act 1980 pro– vides that the Court must fix the duration of the new tenancy which a tenant is entitled to under the Act at thirty-five years or such lesser term as the tenant may nominate. In fact, a tenant could (and some have) seek a tenancy for as little as one year. This is not always satis– factory from the landlord 's point of view. The Commission has thus recommended that if the terms of the lease have to be fixed by the court then the term should be such a period being not more than thirty– five years and not less than five years as the court should determine. This proposal ties in well with the five year rent revision provisions under the Act and could work quite well in practice. The Commission has suggested that the Landlord and Tenant (Ground Rents) Act 1967 should be amended by the addition of a provision requiring appeals from the award of a County Registrar to be brought within twenty-one days of the publication of the award to the parties. Implementation Proposals are virtually meaningless without implementation. One must hope that these proposals are given legislative force in the very near future. Most of them are uncontro– versial and all would be useful at New Tenancy under the 1980 Act Appeals from Arbitrations by the County Registrar

Contracting Out of the Landlord and Tenant Act

In many ways, the most important proposal from the Commission is that parties to a lease could con– tract out of the provisions of Part II of the Landlord and Tenant (Amendment) Act 1980 insofar as

Tenancies for Year to Year Section 17(2) of the Statute of

450