tenancy nutshell

Question 1

what is leasehold ownership?

Answer 1

the right to exclusive possession of land, normally for a limited period, under an agreement with its owner to hold as landlord and tenant.

Question 2

the freehold owner of the land, the person owning the fee simple in the land, grants possession of the land to someone else who is known as

Answer 2

the tenant

Question 3

the tenant has the right to

Answer 3

to exclusive possession for the duration of the lease

Question 4

the tenant is known as

Answer 4

the leasehold owner of the land

Question 5

the landlord is knowns as

Answer 5

the freehold owner.

Question 6

in most leases, the landlord has what is known as

Answer 6

a reversion

Question 7

when the period of the lease or tenancy comes to an end, he has a right

Answer 7

to get the property back.

Question 8

the creation of a lease is not the same as

Answer 8

transfer of freehold ownership, because a leasehold relationship gives rise to special rights on the part of the landlord such as the right to forfeiture and the right to rent, and because the landlord usually gets the property back at the end of the period of the lease.

Question 9

creation of a landlord-tenant relationship

Answer 9

under s 3, landlord and tenant law (amendment) Ireland act 1860 the Deasy’s act, the landlord, tenant relationship in Ireland is deemed to be based on contract and to arise whenever there is an agreement to hold land from or under another in consideration of any rent.

Question 10

the law distinguished between types of leases

Answer 10

fixed term or periodic lease

Question 11

fixed term

Answer 11

a fixed-term lease is a tenancy for a pre-defined fixed period such as example, 21 years

Question 12

a periodic tenancy, on the other hand,

Answer 12

is a tenancy for an initial short period of a week, month, or year, which will be automatically renewed at the end of the period unless either party demonstrates their intention to terminate it by serving a notice to quit.

Question 13

agreement to create land lord-tenant relationship

Answer 13

the concept of the landlord-tenant relationship is based on the notion of an agreement between two parties, the landlord and the tenant.

Question 14

They must, first of all, agree to create a landlord-tenant relationship and not any other kind of relationship,

Answer 14

for example, a licence, a licence would only confer a personal right to possession and a proprietary right.

Save for the very limited category of licences which fall within the scope of the residential tenancies act 2004, a licence does not carry with it any of the statutory rights and obligations which attach to the landlord-tenant relationship.

Question 15

how to distinguish between an agreement for a license and an agreement for a lease or tenancy

Answer 15

the leading Irish case on tenancy and licence distinction is SC, Iirish Shell v John Costello Ltd, 1981, a written agreement conferring exclusive possession in return for periodic money payments was described as a licence but contained certain cases more appropriate to a lease.

For example, there was a clause prohibiting the tenant from assigning his interest, it was held by the supreme court that in deciding whether an agreement is a lease or license, the court should ignore the name tags placed on the agreement by the parties and should instead look a the content of the agreement.

Question 16

The grant of exclusive possession is an essential feature of the landlord-tenant relationship and if it is not present….

Answer 16

the agreement cannot be a lease and must be a licence. Governors of national maternity hospital Dublin v McGouran, 1994, involved an agreement entered into by a hospital granting an individual right to use part of the hospital as a coffee shop. the issue was whether the agreement was a lease or a licence.

there was a clause in the agreement stating the coffee shop licensee had no exclusive possession and that the hospital had the right to come onto the premises at any time they liked. on this basis, the high court held the agreement to be a licence.

Question 17

accordingly one way in which to prevent an occupation agreement from giving rise to a tenancy would be

Answer 17

to insert clauses providing for entry and/or relocation at the will of the owner. however, there should be some reality to the enforcement of these clauses since a court may refuse to recognise them if not genuine.

Question 18

what is also vital in a landlord-tenant relationship

Answer 18

rent.. and it to be a lease, is specifically required by s.3 of Deasy’s act. in OSiodhachain v O’Mahony, unreported, hc, Kearns Judge, held that a contract argued to be a lease, was not a valid lease because it did not provide for rent.

Question 19

one issue is whethr rent in this context is confined to peridoic money payments only,

Answer 19

so as not to include other services. Deasy’s act itself leaves the question open to some extent by defining rent as a sum or return in the nature of rent.

Question 20

one unresolved question in Irish law is whether or not there must also be a specific intention on the part of an owner and occupier to create a landlord-tenant relationship

Answer 20

although Irish shell v john costello ltd made clear that the owner of a property could not preclude a lease simply by putting the word ‘‘licence’’ at the top of their agreement, the supreme court, in that case, continued to regard shared intention to create a landlord-tenant relationship as a necessary prerequisite which must be satisfied, in addition to exclusive possession and rent, before a landlord-tenant relationship can be held to subsist.

Question 21

some doubt has been cast on the continued relevance of intention to create a legal relationship by the decision in

Answer 21

Peart J, in Smith v Irish rail, HC, this case involved an occupation agreement containing a specific provision stating that the parties did not intend to create a landlord-tenant relationship and that the relationship created thereby was one of personal privilege only.

Peart J, held that, despite this clause, the agreement had created a lease, stating the fact that the agreement gave exclusive possession to the occupier in return for the payment by him for periodic money sums effectively meant that it created a landlord-tenant relationship irrespective of the expressed intention of the parties….

Question 22

in this regard, peart j followed the reasoning in the house of lords in street v Mountford 1985, to the effect that the manufacture of five pronged implements for manual digging results in a fork, even if the manufacturer, is unfamiliar with the English language, insists that he intended to make and has made a spade.

Answer 22

however, his approach, in this case, appears to conflict with that taken by sc, both in Irish shell v john costello ltd, and the subsequent case of Kenny holmes v Leonard, unreported, sc, judge lynch, 1998, in which agreement conferring exclusive possession subject to a similar personal privilege clause was regarded as creating a licence only.

Question 23

the above principles were recently applied by hunt judge, in the board of management of st. patricks school v eoghan o neachtain ltd 2018,

Answer 23

a case involving an application for mandatory interlocutory relief by the owner of a schoolyard. hunt j, granted the relief sought, finding that the defendant was not a tenant but a licensee only, and that the licence had been validly determined. he stated that a tenant is a person or entity who has the ability to exclude the landlord from possession of the premises for the duration of the arrangement between the parties..

the distinction between the two occupant lies in the degree of control that permits the occupier to call the place his own.

Question 24

the agreement must be valid under contract law:

Answer 24

there must be a valid offer and acceptance, and the agreement must not have been secured subject to duress, undue influence or mistake. it must not be too vague, if it is a lease for a term certain, the term must be certain..

lace v chantler 1944, was a uk case, where there was a lease for the duration of the war. this was held to be void for uncertainty.

Question 25

the necessary writing requirement must be fulfilled

Answer 25

Finally, there are certain writing requirements which must be fulfilled in order to create a landlord-tenant relationship, unless a landlord-tenant relationship is from year to year or for any lesser period, it has to be in writing under Deasy’s act: otherwise, it cannot be a valid landlord=tenant relationship at common law.

Question 26

the deasys act writing requirment does not apply to yearly, weekly, or monthly periodic tenancies.

Answer 26

it is unresolved issue whether it applies to a fixed term arrangement for one year certain. case law is divded on the issue of whether a fixed term for one year certain is for a lesser period than a yearly tenancy.

in wright v Tracey 1847, it was held that a tenancy for one year certainly was not less than a tenancy, and as such needed to be in writing. however, there has been criticism of this case in the decisions of Jameson v Squire 1948, and Bernays v Prosser 1963…

Question 27

what happens when an agreement fails to satisfy the necessary writing requirements under deays act?

Answer 27

in such a case, it may be possible to enforce equity as an agreement to create a lease, this is known as the principle in Walsh v lonsdale 1882.. it is necessary to show either the fulfilment of writing requirements sufficient to satisfy the statute of frauds 1695 or an act of part performance.

Question 28

writing requirments