374 / 462
GAZETTE
NOVEMBER 1993
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).
Finally, the Commission recommends
amendments to the provisions of section
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
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.
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
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
352