The Gazette 1993

NOVEMBER 1993

GAZETTE

amendments serve to illustrate how pressing is the need for a thorough review and consolidation of the Land- lord and Tenant Acts. Such an exercise would, of course, be a major one and, no doubt, is beyond the capacity of the Commission, but it should be undertaken by the appropriate body as a matter of urgency in the interests of all concerned with rented property. Meanwhile, the Commission is to be commended for its prompt recognition of practical problems which have given rise to considerable concern to conveyancers and landlord and tenant specialists. It is a great shame that one has less confidence in any such recognition by the Oireachtas. As was stated at the beginning of this review, this is the fifth report on land law and conveyancing reform to be issued since 1989, but not one of them has been acted upon. This must be disheartening to the Commission and its supporting Working Group; it is certainly frustrating to practitioners who are left to cope with the numerous problems which have been so clearly identified and to which the solution has been so conveniently set out.

duty to take care varies. Contractual invitees, invitees, licensees and trespassers all find their places in this stratification. Persons in the first categories are owned a higher standard of care than persons in the latter categories. At least that was the theory until 1972. In McNamara v The ESB (1972 IR 1), the Supreme Court held that the duty of care to known or reasonably foreseeable trespassers was a duty to take reasonable care. Prior to this, the only obligation on the occupier towards trespassers was not to intentionally injure them or not to be reckless in their regard. Although McNamara was concerned only with trespassers, the question of its impact on invitees and licensees was never satisfactorily addressed by the courts subsequently and accordingly a certain amount of confusion still prevails in this regard even to this day. In recent times farmers became apprehensive, because they feared that the law as stated in McNamara now encourages all entrants to sue landowners whenever they suffer injuries on another person's land. It is claimed that this results in higher insurance premiums for the occupiers and the adoption by occupiers of what effectively may be called "defensive ownership". Farmers say they do not like having to assume this inhospitable attitude but the current state of the law forces them to adopt this stance. This attitude in turn threatens the innocent activities of hill climbers, ramblers, tourists, huntsmen, fishermen and others. Farmers fears in this regard, although no doubt real, are the result of a misperception. After all, the law only requires them to take reasonable care. It requires no more of them as occupiers, than it demands of them as drivers or employers. Moreover, the law of occupiers is not confined to farmers only; it extends to all occupiers of premises, including ordinary householders and landlords. Finally, that trespassers would not inevitably recover under the McNamara rule can clearly be seen from such cases as

p32). It was pointed out in Wylie's Irish Landlord and Tenant Law (see p 1031) that the section's wording does not appear to be confined to cases of acquisition of the fee simple, including intervening interests, under the 1967 or j 1978 (No 2) Acts, thus enabling a wide category of persons to use section 28 as a means of securing a release from covenants. The Commission recommend that section 28 should operate only where the person acquiring the fee simple is also acquiring every intermediate interest in the land. Other recommendations relate to provisions in the 1980 Act: amending section 5(3) to provide that where an individual lessee runs his business through a company without the lessor's i consent, the right to a new tenancy remains vested in the individual and, plugging a gap in the existing provision (see Wylie, op cit, pi082), where a company holds the lease but the business is carried on by an individual who is the company's principal, this is also covered; amending section 13( 1 )(a) to make it clear that the premises in ' quéstion must have been a "tenement" (as defined in section 5) for the whole of the three year qualification period required for a "business equity" new tenancy; amending section 17(2) to extend the occasions when a new tenant I not entitled to a new tenancy is entitled ! to compensation for disturbance to cover cases where the landlord requires the premises for himself or for persons normally residing with him or as a residence for his employee (thereby adopting provisions in the equivalent section in the Housing (Private Rented dwellings) Act, 1982). 15 of the Landlord and Tenant Act, i 1984, dealing with rent reviews, j designed to make them accord more ! with typical commercial lease rent review provisions. Two changes are proposed: (1) that the reviewed rent should operate from the date of the fifth j anniversary of the date of commencement of the lease and each subsequent such anniversary and not by reference to the date of fixing of the rent and (2) the reviewed rent should be fixed by reference to each such fifth anniversary. These various suggested Finally, the Commission recommends amendments to the provisions of section

Eric Brunker

Consultation Paper on Occupiers Liability

Law Reform Commission, 1993, 145pp Softback, £10.00

The subject of this consultation paper has been referred to the Commission by the Attorney General and it is clear that the matter is being placed high on the political agenda because of pressure in recent years from the farming lobby and especially from the IFA. The consultation paper reviews the present law in Ireland (chapter 2) as well as the law in other jurisdictions (chapter 3) before it makes provisional recommendations for reform in chapter 4. The present law categorises persons coming onto another person's lands, and depending on the category into which such entrants fall, the occupiers

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