The Gazette 1989

GAZETTE

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.

AMENDMENTS OF PERIOD OF

LIMITATION

Adverse Possession

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.

Tenancies for Year to Year

Section 17(2) of the Statute of

450

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.

AMENDMENTS TO LANDLORD

AND TENANT LAW

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.

Landlord's Consent to

Assignment

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.

Abolition of Covenants

Affecting Land

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.

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

DECEMBER 1989

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.

New Tenancy under the 1980

Act

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.

Appeals from Arbitrations by

the County Registrar

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