Leasehold Interests
Land and Conveyancing Law Reform Act
Estates and interests in land.
10.— (1) The concept of an estate in land is retained and, subject to this Act, continues with the interests specified in this Part to denote the nature and extent of land ownership.
(2) Such an estate retains its pre-existing characteristics, but without any tenurial incidents.
(3) All references in any enactment or any instrument (whether made or executed before or after the commencement of this Part) to tenure or estates or interests in land, or to the holder of any such estate or interest, shall be read accordingly.
Restrictions on legal estates and interests.
11.— (1) The only legal estates in land which may be created or disposed of are the freehold and leasehold estates specified by this section.
(2) For the purposes of subsection (1), a “freehold estate” means a fee simple in possession and includes—
(a) a determinable fee,
(b) a fee simple subject to a right of entry or of re-entry,
(c) a fee simple subject only to—
(i) a power of revocation,
(ii) an annuity or other payment of capital or income for the advancement, maintenance or other benefit of any person, or
(iii) a right of residence which is not an exclusive right over the whole land.
(3) For the purposes of subsection (1), a “leasehold estate” means, subject to sections 12 and 14, the estate which arises when a tenancy is created for any period of time or any recurring period and irrespective of whether or not the estate—
(a) takes effect in immediate possession or in future, or
(b) is subject to another legal estate or interest, or
(c) is for a term which is uncertain or liable to termination by notice, re-entry or operation of law or by virtue of a provision for cessor on redemption or for any other reason.
(4) The only legal interests in land which may be created or disposed of are—
(a) an easement,
(b) a freehold covenant,
(c) an incumbrance,
(d) a rent payable under a tenancy,
(e) a possibility of reverter,
(f) a profit à prendre, including a mining right,
(g) a public or customary right,
(h) a rentcharge,
(i) a right of entry or of re-entry attached to a legal estate,
(j) a wayleave or other right to lay cables, pipes, wires or other conduits,
(k) any other legal interest created by any statutory provision.
(5) A legal estate or legal interest under this section has, subject to this Act, the same attributes as the corresponding legal estates and interests existing at the commencement of this Part and may exist concurrently with, or subject to, any other legal estate or interest in the same land.
(6) Subject to this Act, estates and interests other than those referred to in subsections (1) to (4) take effect as equitable interests only, but this does not prevent the creation of the estates and interests referred to in those subsections as equitable interests.
(7) Nothing in this Act affects judicial recognition of equitable interests.
(8) Subject to this Act, a power of attorney, power of appointment or other power to dispose of a legal estate or interest in land operates with the same force and effect as such powers had before the commencement of this Part.
(9) All estates and interests in land, whether legal or equitable, may be disposed of.
Prohibition of fee farm grants.
12.— (1) The creation of a fee farm grant at law or in equity is prohibited.
(2) Any instrument executed after the commencement of this Part purporting to—
(a) create a fee farm grant, or
(b) grant a lease for life or lives renewable for ever or for any period which is perpetually renewable,
vests in the purported grantee or lessee a legal fee simple or, as the case may be, an equitable fee simple and any contract for such a grant entered into after such commencement operates as a contract for such a vesting.
(3) A fee simple which vests under subsection (2) is freed and discharged from any covenant or other provision relating to rent, but all other covenants or provisions continue in force so far as consistent with the nature of a fee simple.
(4) Subsection (2) does not apply to any contract or instrument giving effect to a contract entered into before the commencement of this Part.
(5) Notwithstanding section 11(2), any fee simple held under a fee farm grant existing at law at the commencement of this Part continues as a legal estate and may be disposed of.
(6) Notwithstanding section 11(4), any fee farm rent existing at law at the commencement of this Part continues as a legal interest and may be disposed of.
Abolition of the fee tail.
13.— (1) The creation of a fee tail of any kind at law or in equity is prohibited.
(2) Any instrument executed after the commencement of this Part purporting to create a fee tail in favour of any person vests in that person a legal fee simple or, as the case may be, an equitable fee simple and any contract for such a creation entered into before or after such commencement operates as a contract for such vesting.
(3) Where—
(a) immediately before the commencement of this Part, a person was entitled to a fee tail at law or in equity, or
(b) after such commencement, a person becomes entitled to such a fee tail,
a legal or, as the case may be, an equitable fee simple vests in that person on such commencement or on that person becoming so entitled provided any protectorship has ended.
(4) In subsection (3)“fee tail” includes—
(a) a base fee provided the protectorship has ended,
(b) a base fee created by failure to enrol the disentailing deed,
but does not include the estate of a tenant in tail after possibility of issue extinct.
(5) A fee simple which vests under subsection (2) or subsection (3) is—
(a) not subject to any estates or interests limited by the instrument creating the fee tail to take effect after the termination of the fee tail,
(b) subject to any estates or interests limited to take effect in defeasance of the fee tail which would be valid if limited to take effect in defeasance of a fee simple.
Prohibition of leases for lives.
14.— The grant of a lease for—
(a) a life or lives,
(b) a life or lives combined with a concurrent or reversionary term of any period,
(c) any term coming to an end on the death of a person or persons,
and any contract for such a grant made after the commencement of this Part is void both at law and in equity.
Landlord and Tenant Amendment (Ireland) Act 1860
Relation to rest on contract of parties, &c.
3. The relation of landlord and tenant shall be deemed to be founded on the express or implied contract of the parties, and not upon tenure or service, and a reversion shall not be necessary to such relation, which shall be deemed to subsist in all cases in which there shall be an agreement by one party to hold land from or under another in consideration of any rent.
Contract for definite periods to be by deed or note in writing.
4. Every lease or contract with respect to lands whereby the relation of landlord and tenant is intended to be created for any freehold estate or interest, or for any definite period of time not being from year to year or any lesser period, shall be by deed executed, or note in writing signed by the landlord or his agent thereunto lawfully authorized in writing.
Continuance of possession after expiration of contract may be deemed a new holding.
5. In case any tenant or his representative, after the expiration or determination of the term agreed upon in any lease or instrument in writing, shall continue in possession for more than one month after demand of possession by the landlord or his agent, such continuance shall, at the election of the landlord, be deemed to constitute a new holding of the said lands from year to year, subject to the former rent and to such of the agreements contained in the lease or instrument as may be applicable to the new holding.
Presumed commencement of tenancy from year to year.
6. Every tenancy from year to year shall be presumed to have commenced on the last gale day of the calendar year on which rent has become due and payable in respect of the premises, until it shall appear to the contrary.
Surrenders to be by deed or note in writing or by operation of law.
7. The estate or interest of any tenant under any lease or other contract of tenancy shall not be surrendered otherwise than by a deed executed, or note in writing signed by the tenant or his agent thereto lawfully authorized in writing, or by act and operation of law.
Lease may be renewed without surrender of undertenancies, &c.
8. The surrender of any lease made before or after the passing of this Act for the purpose of obtaining a renewal thereof, shall be valid without the surrender of the interests of the undertenants thereunder; and the owners of such renewed lease for the time being and their representatives shall have the same rights and remedies as against such under-tenants as he or they would have had or have been entitled to had such surrender not been executed; and the chief landlord shall have the same remedies against the premises for the rents and duties reserved in such new lease, not exceeding the rents and duties reserved by the lease out of which such under-tenancies were derived, as he would have been entitled to in case no such surrender had been executed.
Modes of assignment of estate and interest of tenant.
9. The estate or interest of any tenant in any lands under any lease or other contract of tenancy shall be assigned, granted, or transmitted by deed executed, or instrument in writing signed by the party assigning or granting the same, or his agent thereto lawfully authorized in writing, or by devise, bequest, or act and operation of law, and not otherwise; and in case the said estate or interest shall, on the death of the tenant, remain undisposed of and without any special occupant, it shall pass to the personal representative of the tenant as part of the personal estate of such tenant.
Restriction on assignment contrary to agreement.
10. Where any lease has been or shall be made containing an agreement restraining or prohibiting assignment, the benefit of which has not been waived before the first day of June one thousand eight hundred and twenty-six, it shall not be lawful to assign the lands or any part thereof contrary to such agreement without the consent in writing of the landlord or his agent thereto lawfully authorized in writing, testified by his being an executing party to the instrument of assignment, or by an indorsement on or subscription of such instrument.
Assignee subject to condition against assignment or subletting.
11. Every assignee of the estate or interest or any part thereof of any tenant, by lawful assignment, or by devise, bequest, or act and operation of law, made after the passing of this Act, shall be subject to the observance of all agreements in respect of assignment or subletting to the same extent as the original tenant might have been.
Benefit of agreements to enure against assignee, &c. of the tenant, and in favour of heir or assignee of the landlord.
12. Every landlord of any lands holden under any lease or other contract of tenancy shall have the same action and remedy against the tenant, and the assignee of his estate or interest, or their respective heirs, executors, or administrators, in respect of the agreements contained or implied in such lease or contract, as the original landlord might have had against the original tenant, or his heir or personal representative respectively; and the heir or personal representative of such landlord on whom his estate or interest under any such lease or contract shall devolve or should have devolved shall have the like action and remedy against the tenant, and the assignee of his estate or interest, and their respective heirs or personal representatives, for any damage done to the said estate or interest of such landlord by reason of the breach of any agreement contained or implied in the lease or other contract of tenancy in the lifetime of the landlord, as such landlord himself might have had.
Benefit of agreements to enure against assignee of the landlord, and in favour of heir, &c. or assignee of the tenant.
13. Every tenant of any lands shall have the same action and remedy against the landlord and the assignee of his estate or interest, or their respective heirs, executors, or administrators, in respect of the agreements contained or implied in the lease or other contract concerning the lands, as the original tenant might have had against the original landlord, or his heir or personal representative respectively; and the heir or personal representative of such tenant, on whom his estate or interest shall devolve or should have devolved, shall have the like action and remedy against the landlord, and the assignee of his estate or interest, and their respective heirs and personal representatives, for any damage done to the said estate or interest of such tenant by reason of the breach of any agreement contained or implied in the lease or other contract of tenancy in the lifetime of the tenant, as such tenant might have had.
Benefit and liability of assignee to cease after assignment over.
Notice of assignment to landlord.
14. No landlord or tenant, being such by assignment, devise, bequest, or act and operation of law only, shall have the benefit or be liable in respect of the breach of any covenant or contract contained or implied in the lease or other contract of tenancy, otherwise than in respect of such rent as shall have accrued due, and such breaches as shall have occurred or continued subsequent to such assignment, and whilst he shall have continued to be such assignee: Provided, however, that no assignment made by any assignee of the estate or interest of any tenant shall discharge such assignee from his liability to the landlord, unless and until notice in writing of the particulars of such assignment shall have been given to the landlord.
Assignee liable till next gale day.
15. Every tenant, being an assignee as aforesaid, who shall have assigned his estate or interest in the lease or other contract of tenancy in the interval between two gale days, shall, notwithstanding such assignment, be liable as assignee to the payment of the rent and the performance of the agreements contained in the lease or other contract up to and including the gale day next following the service of notice of the said assignment.
Discharge of tenant from agreements, on assignment with consent of landlord.
16. From and after any assignment hereafter to be made of the estate or interest of any original tenant in any lease, with the consent of the landlord, testified in manner specified in section ten, the landlord so consenting shall be deemed to have released and discharged the said tenant from all actions and remedies at the suit of such landlord, and all persons claiming by, through, or under him, in respect of any future breach of the agreements contained in the lease, but without prejudice to any remedy or right against the assignee of such estate or interest.
Conveyancing Act 1881
14 (2) Wherea lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor’s action, if any, or in any action brought by himself, apply to the Court for relief; and the Court may grant or refuse relief, as the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court, in the circumstances of each case, thinks fit.
Landlord and Tenant (Amendment) Act 1980
“Tenement”.
[New in pt. cf. 1931, s. 2; 1960, s. 54; 1967, No. 10, s. 13 (3) (i)]
5.—(1) In this Act “tenement” means—
(a) premises complying with the following conditions:
(i) they consist either of land covered wholly or partly by buildings or of a defined portion of a building;
(ii) if they consist of land covered in part only by buildings, the portion of the land not so covered is subsidiary and ancillary to the buildings;
(iii) they are held by the occupier thereof under a lease or other contract of tenancy express or implied or arising by statute;
(iv) such contract of tenancy is not a letting which is made and expressed to be made for the temporary convenience of the lessor or lessee and (if made after the passing of the Act of 1931) stating the nature of the temporary convenience; and
(v) such contract of tenancy is not a letting made for or dependent on the continuance in any office, employment or appointment of the person taking the letting;
or
(b) premises to which section 14 or 15 applies.
(2) For the purposes of subsection (1) (a) (iii), where a State authority holds premises under a lease or other contract of tenancy express or implied or arising by statute, the authority shall be deemed to be in exclusive occupation thereof notwithstanding that they may be occupied for the purposes of another State authority.
(3) Where—
(a) a person holds premises under a lease or other contract of tenancy express or implied or arising by statute, and
(b) that person is entitled to the occupation of the premises, and
(c) either—
(i) the premises are used with that person’s permission by a private company for the purpose of carrying on a business which that person himself carried on in the premises up to the time when it began to be carried on by the private company, or
(ii) that person being a company which is another company’s holding company, the premises are used for the purpose of carrying on a business by the other company, or
(iii) that person being a company which is another company’s subsidiary, the premises are used for the purpose of carrying on a business by the other company, or
(iv) that person being a company which is another company’s subsidiary, the premises are used for the purpose of carrying on a business by another subsidiary of the other company,
the private company, the other company or the other subsidiary (as the case may be) shall be deemed for the purposes of subsection (1) (a) (iii) to be the tenant of the premises and to be in exclusive occupation thereof.
(4) In subsection (3) “company”, “private company”, “holding company” and “subsidiary” have the same meanings respectively as in the Companies Act, 1963 .
PART II
Right to New Tenancy
Application of Part II.
[New. cf. 1931, s. 19]
13.—(1) This Part applies to a tenement at any time if—
(a) the tenement was, during the whole of the period of three years ending at that time, continuously in the occupation of the person who was the tenant immediately before that time or of his predecessors in title and bona fide used wholly or partly for the purpose of carrying on a business, or
(b) the tenement was, during the whole of the period of twenty years ending at that time, continuously in the occupation of the person who was the tenant immediately before that time or of his predecessors in title, or
(c) improvements have been made on the tenement and the tenant would, if this Part did not apply to the tenement, be entitled to compensation for those improvements under Part IV and not less than one-half of the letting value of the tenement at that time is attributable to those improvements.
(2) For the purpose of subsection (1) (a) a temporary break in the use of the tenement shall be disregarded if the Court considers it reasonable to disregard it.
Application of Part II to business premises decontrolled by Rent Restrictions Act, 1960.
[1960, s. 54 in pt.]
14.—(1) This Part also applies to premises which, immediately before the commencement of the Rent Restrictions Act, 1960 , comprised controlled business premises under the Rent Restrictions Act, 1946 , the letting of which was not—
(a) a letting made and expressed to be made for the temporary convenience of the landlord or of the tenant and (if made after the passing of the Act of 1931) stating the nature of the temporary convenience, or
(b) a letting made for or dependent on the continuance of the tenant in any office, employment or appointment.
(2) Where the premises were, immediately before the commencement of the Rent Restrictions Act, 1960 , held under a statutory tenancy, the tenant under that tenancy shall, on and after such commencement, be deemed to hold the premises from the landlord under a tenancy having the same terms and conditions as the statutory tenancy except that the landlord may, by not less than three months’ notice to quit (expiring on any day specified in that behalf in the notice) served on the tenant, determine the tenancy.
Application of Part II to dwellings decontrolled by Rent Restrictions (Amendment) Act, 1967.
[1967, No. 10, s. 13 in pt.]
15.—(1) This Part also applies to a dwelling, being a house or a separate and self-contained flat, which immediately before the passing of the Rent Restrictions (Amendment) Act, 1967 , was a controlled dwelling, the rateable valuation of which—
(a) if situate in the county borough of Dublin or the borough of Dún Laoghaire, exceeds £40 (if a house) or £30 (if a flat), and
(b) in any other case, exceeds £30 (if a house) or £20 (if a flat), and the letting of which was not—
(i) a letting made and expressed to be made for the temporary convenience of the landlord or of the tenant and (if made after the passing of the Act of 1931) stating the nature of the temporary convenience, or
(ii) a letting made for or dependent on the continuance of the tenant in any office, employment or appointment.
(2) This Part also applies to a dwelling, being a house having a rateable valuation exceeding £10, of which, after the passing of the Rent Restrictions (Amendment) Act, 1967 , a bachelor or spinster over the age of 21 years and under the age of 65 years has become the tenant and which, immediately before he or she became the tenant, was a controlled dwelling.
(3) Where a dwelling to which subsection (1) refers was, immediately before the passing of the Rent Restrictions (Amendment) Act, 1967 , held under a statutory tenancy, the tenant under that tenancy shall, from such passing, be deemed to hold the dwelling from the landlord under a tenancy having the same terms and conditions as the statutory tenancy except that the landlord may, by not less than three months’ notice to quit (expiring on any day specified in that behalf in the notice) served on the tenant, determine the tenancy.
(4) Where a dwelling to which subsection (2) refers was, immediately before the time when the person referred to in that subsection became the tenant, held under a statutory tenancy, that person shall, from that time, be deemed to hold the dwelling from the landlord under a tenancy having the same terms and conditions as the statutory tenancy except that the landlord may, by not less than three months’ notice to quit (expiring on any day specified in that behalf in the notice) served on the tenant, determine the tenancy.
(5) (a) The application, by virtue of this section, of this Part to a dwelling shall cease upon the landlord’s coming into possession of the dwelling.
(b) In paragraph (a) “possession” means actual possession, and a landlord shall not be deemed to have come into possession by reason only of a change of tenancy made with his consent.
Right of tenant to new tenancy.
[1931, s. 20]
16.—Subject to the provisions of this Act, where this Part applies to a tenement, the tenant shall be entitled to a new tenancy in the tenement beginning on the termination of his previous tenancy, and the new tenancy shall be on such terms as may be agreed upon between the tenant and the person or persons granting or joining in the grant of the new tenancy or, in default of agreement, as shall be fixed by the Court.
Restrictions on right to new tenancy.
[New in pt. cf. 1931, ss. 21, 22 in pt.; 1963, s. 79 (2)]
17.—(1) (a) A tenant shall not be entitled to a new tenancy under this Part if—
(i) the tenancy has been terminated because of non-payment of rent, whether the proceedings were framed as an ejectment for non-payment of rent, an ejectment for overholding or an ejectment on the title based on a forfeiture, or
(ii) the tenancy has been terminated by ejectment, notice to quit or otherwise on account of a breach by the tenant of a covenant of the tenancy, or
(iii) the tenant has terminated the tenancy by notice of surrender or otherwise, or
(iv) the tenancy has been terminated by notice to quit given by the landlord for good and sufficient reason, or
(v) the tenancy terminated otherwise than by notice to quit and the landlord either refused for good and sufficient reason to renew it or would, if he had been asked to renew it, have had good and sufficient reason for refusing.
(b) In this subsection “good and sufficient reason” means a reason which emanates from or is the result of or is traceable to some action or conduct of the tenant and which, having regard to all the circumstances of the case, is in the opinion of the Court a good and sufficient reason for terminating or refusing to renew (as the case may be) the tenancy.
(2) (a) A tenant shall not be entitled to a new tenancy under this Part where it appears to the Court that—
(i) the landlord intends or has agreed to pull down and rebuild or to reconstruct the buildings or any part of the buildings included in the tenement and has planning permission for the work, or
(ii) the landlord requires vacant possession for the purpose of carrying out a scheme of development of property which includes the tenement and has planning permission for the scheme, or
(iii) the landlord being a planning authority, the tenement or any part thereof is situate in an area in respect of which the development plan indicates objectives for its development or renewal as being an obsolete area, or
(iv) the landlord, being a local authority for the purposes of the Local Government Act, 1941 , will require possession, within a period of five years after the termination of the existing tenancy, for any purpose for which the local authority are entitled to acquire property compulsorily, or
(v) for any reason the creation of a new tenancy would not be consistent with good estate management.
(b) In the case of certain dwellings and business premises to which this subsection applies the tenant is entitled to compensation for disturbance under Part IV.
(3) Where the Court is satisfied—
(a) that a tenant would but for subparagraph (i), (ii), (iii) or (iv) of subsection (2) (a) be entitled to a new tenancy, and
(b) that the landlord will not require possession for the purposes mentioned in the relevant subparagraph until after the expiration of a period of at least six months,
the Court may, if the tenant so requests, continue the existing tenancy until terminated by the landlord for those purposes by the service of six months’ previous notice in writing, but subject to the condition that the continuation of the tenancy shall be without prejudice to the right of the tenant to relief under this Act on the termination of the continued tenancy.
(4) Where, in a case in which an application for a new tenancy has been refused on a ground mentioned in subparagraph (i) or (ii) of subsection (2) (a), it appears to the Court that the landlord has not, within a reasonable time, carried out the intention, agreement or purpose, as the case may be, on account of which such application was refused, the Court may order the landlord to pay to the tenant such sum as it considers proper by way of punitive damages.
Provisions relating to award of new tenancy.
[1931, s. 27 in pt.]
18.—(1) This section applies where the Court, on an application for a new tenancy under this Part, finds that the tenant is entitled to a new tenancy.
(2) The Court shall fix the terms of the new tenancy and make an order requiring the landlord, and any superior landlord whose joinder may be necessary, to grant or join in the grant of, and the tenant to accept, a new tenancy accordingly.
(3) Such person or persons shall grant or join in the grant of, and the tenant shall accept, a new contract of tenancy in writing in respect of the tenement on the terms specified in the order, commencing on the termination of the previous tenancy.
(4) The tenant shall not be entitled to compensation in respect of the termination of his previous tenancy.
(5) If any dispute, failure or question arises or occurs in the carrying out of the order, the Court may, on the application of any person concerned, make such order as justice may require.
Provisions where tenant not entitled to new tenancy.
[1931, s. 27 in pt.]
19.—Where the Court, on an application for a new tenancy under this Part finds that the tenant is not entitled to a new tenancy—
(a) if the notice of intention to claim relief includes a claim in the alternative for compensation, the Court shall hear and determine the claim and fix the amount of any compensation;
(b) if the notice of intention to claim relief does not include a claim in the alternative for compensation, the Court may, on the application of the tenant, if having regard to all the circumstances of the case the Court thinks proper to do so, amend the notice in such terms as the Court thinks proper by inserting in it a claim in the alternative for compensation and thereupon deal with that claim in accordance with paragraph (a).
Notice of intention to claim relief.
[New in pt. cf. 1931, s. 24; 1960, s. 54 (2) (iv) (vi); 1967, No. 10, s. 13 (3) (iii), (iv)]
20.—(1) A claim for a new tenancy under this Part shall not be maintained unless the claimant, within the time limited in subsection (2), serves on each person against whom the claim is intended to be made a notice of intention to claim relief in the prescribed form.
(2) A notice of intention to claim relief may be served—
(a) in the case of a tenancy terminating by the expiration of a term of years or other certain period or by any other certain event—
(i) before the termination of the tenancy, or
(ii) at any time thereafter but before the expiration of three months after the service (not earlier than three months before the termination of the tenancy) on the claimant by the landlord of notice in the prescribed form of the expiration of the term or period or the happening of the event;
(b) in the case of a tenancy terminating by the fall of a life or any other uncertain event—at any time but before the expiration of three months after the service on the claimant by the landlord of notice in the prescribed form of the happening of the event;
(c) in the case of a tenancy which is terminable by notice to quit—at any time but before the expiration of three months (or, in the case of premises to which section 14 or 15 applies, six months) after the service of the notice;
(d) in the case of a tenancy to which section 29 applies—within six months after the commencement of this Act.
(3) The notice may include a claim in the alternative for compensation.
Application for relief.
[New. cf. 1931, s. 25]
21.—(1) A person who serves a notice of intention to claim relief may, at any time not less than one month thereafter, apply to the Court to determine his right to relief and (as the case may be) to fix the amount of the compensation or the terms of the new tenancy to which he is found to be entitled.
(2) If he does not do so within three months after service of the notice, any person on whom the notice was served may apply to the Court to determine the matters to which the notice relates.
(3) An application under this section may be made, heard and determined either before and in anticipation of or after the termination of the tenancy.
Offer by landlord of new tenancy in lieu of compensation.
[1931, s. 28]
22.—(1) Where the tenant serves on the landlord a notice of intention to claim compensation under Part IV for improvements, the landlord, any superior landlord or any two or more of such persons may, within two months, serve on the tenant a notice in the prescribed form offering him a new tenancy in the tenement on terms specified in the notice or on terms to be fixed by the Court.
(2) Where a notice is served under subsection (1) offering the tenant a new tenancy on terms specified in the notice—
(a) the tenant may, within one month, serve on the person or persons who served the notice a notice in the prescribed form accepting the new tenancy;
(b) in that case, such person or persons shall forthwith grant, and the tenant shall forthwith accept, a new contract of tenancy in writing in respect of the tenement on the terms specified in the notice served on the tenant, commencing on the termination of the previous tenancy;
[New in pt.]
(c) the tenant may, alternatively, within one month serve on such person or persons a notice refusing the new tenancy;
(d) in that case the tenant may proceed with his application for relief by way of compensation for improvements, but—
(i) on the hearing of the application, the Court if satisfied that the tenant is entitled to that relief, may in lieu of awarding that relief make an order requiring the necessary person or persons to grant, and the tenant to accept, a new tenancy in the tenement on such terms as the Court (subject to the provisions of this Act) thinks proper and specifies in the order, and
(ii) upon the making of that order, the necessary person or persons shall forthwith grant, and the tenant shall forthwith accept, a contract of tenancy in writing in respect of the tenement on the terms specified in the order.
(3) Where a notice is served under subsection (1) offering a new tenancy on terms to be fixed by the Court—
(a) either the person or persons who served the notice or the tenant may apply to the Court for an order fixing the terms of the new tenancy;
(b) upon the making of that order, the necessary person or persons shall forthwith grant, and the tenant shall forthwith accept, a contract of tenancy in writing in respect of the tenement on the terms specified in the order.
(4) Where any person or persons and the tenant are required by this section or an order made under this section, respectively to grant and accept a new tenancy, the tenant shall not be entitled to compensation in respect of the termination of his tenancy previous to the new tenancy.
(5) Where any person or persons and the tenant are required, by this section or an order made under this section, respectively to grant and accept a new tenancy and any dispute, failure or question arises or occurs in the granting and accepting of the tenancy, the Court, on the application of any person concerned, may make such order as justice may require.
Fixing of terms of new tenancy by Court.
[New in pt. cf. 1931, s. 29]
23.—(1) This section applies where the Court fixes the terms of a new tenancy under this Part.
(2) The Court shall fix the duration of the tenancy at thirty-five years or such less term as the tenant may nominate.
(3) The rent payable by the tenant under the new tenancy shall not be less than (as the case may require) the rent payable by the landlord in respect of the tenement or such proportion of the rent payable by the landlord in respect of the tenement and other property as is in the opinion of the Court fairly apportionable to the tenement.
(4) Subject to subsection (3), the rent shall be the gross rent reduced, where appropriate, by the allowance for improvements provided for by subsection (6).
(5) The gross rent shall be the rent which in the opinion of the Court a willing lessee not already in occupation would give and a willing lessor would take for the tenement, in each case on the basis of vacant possession being given, and having regard to the other terms of the tenancy and to the letting values of tenements of a similar character to the tenement and situate in a comparable area but without regard to any goodwill which may exist in respect of the tenement.
(6) The allowance for improvements shall be such proportion of the gross rent as is, in the opinion of the Court, attributable to improvements made by the tenant or his predecessors in title and in respect of which the tenant would have been entitled to compensation for improvements if (as the case may be) this Part did not apply to the tenement or the new tenancy had not been created.
(7) The Court may, as one of the terms of the new tenancy, require the intended tenant to expend, within such time as the Court thinks proper, a specified sum of money in the execution of specified repairs (including painting for purposes of preservation but not painting for purposes of mere decoration) to the tenement and authorise the postponement of the grant of the new tenancy until the requirement has been complied with.
(8) If the intended tenant refuses or fails to comply with a requirement under subsection (7), the Court shall have power to declare him to have forfeited his right to a new tenancy and to discharge any order granting it to him.
(9) The new tenancy shall be subject to such covenants as may be agreed upon between the parties or, in default of agreement, as may be determined by the Court.
Residential Tenancies Act
Interpretation generally.
4.—(1) In this Act, unless the context otherwise requires—
“adjudicator” shall be construed in accordance with section 164(2);
F14[“approved housing body” means a body—
(a) approved under section 6(6) of the Housing (Miscellaneous Provisions) Act 1992 for the purposes of section 6 of that Act, and
(b) to which—
(i) assistance under section 6 of the Housing (Miscellaneous Provisions) Act 1992 is given for the provision by the approved housing body of dwellings F15[…], or
(ii) assistance referred to in section 6(2)(ea) of that Act is given;]
“authorised agent” shall be construed in accordance with section 12(1)(e);
F16[“Board” shall be construed in accordance with section 150(1) and section 13 of the Residential Tenancies (Amendment) Act 2015;]
“child” includes a person who is no longer a minor and cognate words shall be construed accordingly;
“company” means a company within the meaning of the Companies Acts 1963 to 2003;
“contract of tenancy” does not include an agreement to create a tenancy;
“Director” shall be construed in accordance with section 160(1);
“Dispute Resolution Committee” shall be construed in accordance with section 157(2);
“dwelling” means, subject to subsection (2), a property let for rent or valuable consideration as a self-contained residential unit and includes any building or part of a building used as a dwelling and any out office, yard, garden or other land appurtenant to it or usually enjoyed with it and, where the context so admits, includes a property available for letting but excludes a structure that is not permanently attached to the ground and a vessel and a vehicle (whether mobile or not);
“establishment day” means the day appointed under section 149;
“functions” includes powers and duties and references to the performance of functions include, as respects power and duties, references to the exercise of the powers and the carrying out of the duties;
“further Part 4 tenancy” shall be construed in accordance with section 41(2) or 45(2), as appropriate;
F14[“housing authority” has the meaning assigned to it by section 23 of the Housing (Miscellaneous Provisions) Act 1992;]
“local authority” means a local authority for the purposes of the Local Government Act 2001;
“management company”, in relation to an apartment complex, means the company in which functions are vested with respect to the management of the apartment complex;
“mediator” shall be construed in accordance with section 164(1);
“Minister” means the Minister for the Environment, Heritage and Local Government;
“Part 4 tenancy” shall be construed in accordance with section 29;
“personal representative” has the same meaning as it has in the Succession Act 1965;
“planning permission” means a permission under section 34 of the Planning and Development Act 2000;
“prescribed” means prescribed by regulations made by the Minister under this Act;
“public authority” means—
(a) a Minister of the Government or a body under the aegis of a Minister of the Government,
(b) the Commissioners of Public Works in Ireland,
(c) a local authority,
F14[(ca) a housing authority,]
F17[(d) the Health Service Executive established under section 6 of the Health Act 2004,]
(e) F18[…]
(f) a voluntary body standing approved of by the Minister for Health and Children or by F19[the Health Service Executive] of this definition for the purpose of providing accommodation for elderly persons or persons with a mental handicap or psychiatric disorder,
(g) F20[…]
(h) F21[…]
“remuneration” includes fees, allowances for expenses, benefits-inkind and superannuation;
“required period of notice”, in relation to a notice of termination, means the period of notice required by Part 4 or 5 or, if greater, by the lease or tenancy agreement concerned;
“self-contained residential unit” includes the form of accommodation commonly known as “bedsit” accommodation;
“shared ownership lease” has the meaning assigned to it by section 2 of the Housing (Miscellaneous Provision) Act 1992;
“superannuation benefit” means a pension, gratuity or other allowance payable on resignation, retirement or death;
“tenancy agreement” includes an oral tenancy agreement;
“Tribunal” shall be construed in accordance with section 102(2).
(2) The definition of “dwelling” in subsection (1) shall not apply in relation to the construction of references to “dwelling” to which this subsection applies; each such reference shall be construed as a reference to any building or part of a building used as a dwelling (whether or not a dwelling let for rent or valuable consideration) and any out office, yard, garden or other land appurtenant to it or usually enjoyed with it.
(3) Subsection (2) applies to the following references to “dwelling” (whether in the singular or plural form) in this Act, namely—
(a) the second of the references in section 12(1)(h),
(b) the first and last of the references in paragraph (c)(ii) and paragraph (c)(iii) of the definition of “behave in a way that is anti-social” in section 17(1),
(c) the reference in subsection (2)(a) of section 25 to whichever of the dwellings mentioned in that subsection is not the subject of the tenancy mentioned in subsection (1) of that section,
(d) the references in subsection (2)(b) and (c) of section 25, and
(e) the second of the references in sections 136(h), 187(1) and 188(1).
(4) In this Act—
(a) a reference to a section or Part is a reference to a section or Part of this Act unless it is indicated that reference to some other enactment is intended,
(b) a reference to a Chapter is a reference to the Chapter of the Part in which the reference occurs, unless it is indicated that reference to some other provision is intended,
(c) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and
(d) a reference to any other enactment is a reference to that enactment as amended or extended by or under any subsequent enactment.
“relevant date”, “landlord”, “tenant”, “lease”, etc.
5.—(1) In this Act—
“landlord” means the person for the time being entitled to receive (otherwise than as agent for another person) the rent paid in respect of a dwelling by the tenant thereof and, where the context so admits, includes a person who has ceased to be so entitled by reason of the termination of the tenancy;
“lease” means an instrument in writing, whether or not under seal, containing a contract of tenancy in respect of a dwelling;
“relevant date” means the date on which Part 4 is commenced F22[or, in the case of a dwelling the subject of a tenancy referred to in section 3(4) (inserted by section 3 of the Residential Tenancies (Amendment) Act 2015), shall be construed in accordance with section 3B(b) (inserted by section 4 of the Residential Tenancies (Amendment) Act 2015)];
“tenancy” includes a periodic tenancy and a tenancy for a fixed term, whether oral or in writing or implied, and, where the context so admits, includes a sub-tenancy and a tenancy or sub-tenancy that has been terminated;
“tenant” means the person for the time being entitled to the occupation of a dwelling under a tenancy and, where the context so admits, includes a person who has ceased to be entitled to that occupation by reason of the termination of his or her tenancy.
(2) A reference in this Act to—
(a) the landlord of a dwelling is a reference to the landlord under a tenancy of the dwelling, and
(b) the tenant of a dwelling is a reference to the tenant under a tenancy of the dwelling.
(3) Subject to subsection (4), in this Act “costs”, in relation to a matter being dealt with by the Board, a mediator, an adjudicator or the Tribunal or a determination or direction made or given by it or him or her, does not include—
(a) legal costs or expenses, or
(b) costs or expenses of any other professional kind or of employing any person with technical expertise that are connected wholly or mainly with the provision of evidence for, or the presentation of one or more issues at, the proceedings.
(4) Despite subsection (3), the Board or, with the consent of the Board, a mediator, an adjudicator or the Tribunal may if, in its or his or her opinion the exceptional circumstances of the matter so warrant, determine that any element of costs the subject of a determination or direction made or given by it or him or her shall include costs referred to in paragraph (a) or (b) of that subsection F23[and the amount of such costs shall not exceed €5,000].
PART 2
Tenancy Obligations of Landlords and Tenants
Chapter 1
Provisions regarding landlord’s obligations
Obligations of landlords.
12.—(1) In addition to the obligations arising by or under any other enactment, a landlord of a dwelling shall—
(a) allow the tenant of the dwelling to enjoy peaceful and exclusive occupation of the dwelling,
(b) subject to subsection (2), carry out to—
(i) the structure of the dwelling all such repairs as are, from time to time, necessary and ensure that the structure complies with any standards for houses for the time being prescribed under section 18 of the Housing (Miscellaneous Provisions) Act 1992, and
(ii) the interior of the dwelling all such repairs and replacement of fittings as are, from time to time, necessary so that that interior and those fittings are maintained in, at least, the condition in which they were at the commencement of the tenancy and in compliance with any such standards for the time being prescribed,
F29[(ba) provide receptacles suitable for the storage of refuse outside the dwelling, save where the provision of such receptacles is not within the power or control of the landlord in respect of the dwelling concerned,]
(c) subject to subsection (3), effect and maintain a policy of insurance in respect of the structure of the dwelling, that is to say a policy—
(i) that insures the landlord against damage to, and loss and destruction of, the dwelling, and
(ii) that indemnifies, to an amount of at least €250,000, the landlord against any liability on his or her part arising out of the ownership, possession and use of the dwelling,
(d) subject to subsection (4), return or repay promptly any deposit paid by the tenant to the landlord on entering into the agreement for the tenancy or lease,
(e) notify the tenant of the name of the person, if any, (the “authorised agent”) who is authorised by the landlord to act on his or her behalf in relation to the tenancy for the time being,
(f) provide to the tenant particulars of the means by which the tenant may, at all reasonable times, contact him or her or his or her authorised agent,
(g) without prejudice to any other liability attaching in this case, reimburse the tenant in respect of all reasonable and vouched for expenses that may be incurred by the tenant in carrying out repairs to the structure or interior of the dwelling for which the landlord is responsible under paragraph (b) where the following conditions are satisfied—
(i) the landlord has refused or failed to carry out the repairs at the time the tenant requests him or her to do so, and
(ii) the postponement of the repairs to some subsequent date would have been unreasonable having regard to either—
(I) a significant risk the matters calling for repair posed to the health or safety of the tenant or other lawful occupants of the dwelling, or
(II) a significant reduction that those matters caused in the quality of the tenant’s or other such occupants’ living environment,
(h) if the dwelling is one of a number of dwellings comprising an apartment complex—
(i) forward to the management company, if any, of the complex any complaint notified in writing by the tenant to him or her concerning the performance by the company of its functions in relation to the complex,
(ii) forward to the tenant any initial response by the management company to that complaint, and
(iii) forward to the tenant any statement in writing of the kind referred to in section 187(2) made by the management company in relation to that F30[complaint,]
F31[(i) in the case of a tenancy of a dwelling in a rent pressure zone (within the meaning given in section 19(7)), where the tenancy commences on or after the commencement of section 33 of the Planning and Development (Housing) and Residential Tenancies Act 2016, furnish the tenant, in writing, with the following information at the commencement of the tenancy:
(i) the amount of rent that was last set under a tenancy for the dwelling;
(ii) the date the rent was last set under a tenancy for the dwelling;
(iii) a statement as to how the rent set under the tenancy of the dwelling has been calculated having regard to section 19 F32[…].]
(2) Subsection (1)(b) does not apply to any repairs that are necessary due to the failure of the tenant to comply with section 16(f).
(3) The obligation under subsection (1)(c) does not apply at any particular time during the term of the tenancy concerned if, at that time, a policy of insurance of the kind referred to in that provision is not obtainable, or is not obtainable at a reasonable cost, by the landlord in respect of the dwelling.
(4) Subsection (1)(d) applies and has effect subject to the following provisions:
(a) no amount of the deposit concerned shall be required to be returned or repaid if, at the date of the request for return or repayment, there is a default in—
F33[(i) the payment of rent, or any other charges or taxes payable by the tenant in accordance with the lease or tenancy agreement, and the amount of rent or such other charges or taxes in arrears is equal to or greater than the amount of the deposit, or]
(ii) compliance with section 16(f) and the amount of the costs that would be incurred by the landlord, were he or she to take them, in taking such steps as are reasonable for the purposes of restoring the dwelling to the condition mentioned in section 16(f) is equal to or greater than the amount of the deposit,
F33[(b) where, at the date of the request for return or repayment, there is a default in—
(i) the payment of rent, or any other charges or taxes payable by the tenant in accordance with the lease or tenancy agreement, or
(ii) compliance with section 16(f),
and subparagraph (i) or (ii), as the case may be, of paragraph (a) does not apply, then there shall only be required to be returned or repaid under subsection (1)(d) the difference between the amount of rent or such other charges or taxes in arrears or, as appropriate, the amount of the costs that would be incurred in taking steps of the kind referred to in paragraph (a)(ii).]
(5) For the avoidance of doubt, the condition in subsection (1)(g)(i) is satisfied if, after all reasonable attempts, the landlord or his or her authorised agent could not be contacted to make the request concerned.
Section 12(1)(b): supplemental regulations.
13.—(1) The Board, with the consent of the Minister, may make regulations specifying that particular parts of dwellings shall, for the purposes of section 12(1)(b), be regarded as parts of the interior, or as parts of the structure, of dwellings.
(2) In making regulations under this section, the Board—
(a) may invite submissions in relation to the matter from any persons or organisations appearing to the Board to be representative of the interests of landlords and of tenants and consider any submissions from those persons or organisations made on foot of that invitation,
(b) shall not specify a part of a dwelling as being part of its structure or, as the case may be, part of its interior if, to do so, would, in its opinion, result in unreasonably burdensome obligations being imposed on landlords.
(3) Different regulations may be made under this section in respect of different classes of dwelling.
Prohibition on penalisation of tenants.
14.—(1) A landlord of a dwelling shall not penalise a tenant for—
(a) referring any dispute between the tenant and the landlord to the Board for resolution under Part 6,
(b) giving evidence in any proceedings under Part 6 to which the landlord is a party (whether the tenant is a party to them or not),
(c) making a complaint to a member of the Garda Síochána or to a public authority in relation to any matter arising out of, or in connection with, the occupation of the dwelling or making an application regarding such a matter to a public authority, or
(d) giving notice of his or her intention to do any or all of the things referred to in the preceding paragraphs.
(2) For the purposes of this section a tenant is penalised if the tenant is subjected to any action that adversely affects his or her enjoying peaceful occupation of the dwelling concerned.
(3) Such action may constitute penalisation even though it consists of steps taken by the landlord in the exercise of any rights conferred on him or her by or under this Act, any other enactment or the lease or tenancy agreement concerned if, having regard to—
(a) the frequency or extent to which the right is exercised in relation to the tenant,
(b) the proximity in time of its being so exercised to the tenant’s doing the relevant thing referred to in subsection (1), and
(c) any other relevant circumstances,
it is a reasonable inference that the action was intended to penalise the tenant for doing that thing.
(4) This section is without prejudice to any other liability (civil or criminal) the landlord may be subject to for doing a thing prohibited by this section.
Duty owed to certain third parties to enforce tenant’s obligations.
15.—(1) A landlord of a dwelling owes to each person who could be potentially affected a duty to enforce the obligations of the tenant under the tenancy.
(2) In subsection (1) “person who could be potentially affected” means a person who, it is reasonably foreseeable, would be directly and adversely affected by a failure to enforce an obligation of the tenant were such a failure to occur and includes any other tenant under the tenancy mentioned in that subsection.
(3) This section does not confer on any person a right of action maintainable in proceedings before a court for breach of the duty created by it; the sole remedy for such a breach is by means of making a complaint (where the conditions specified in section 77 for doing so are satisfied) to the Board under Part 6.
(4) Nothing in subsection (3) affects any duty of care, and the remedies available for its breach, that exist apart from this section.
Chapter 2
Provisions regarding tenant’s obligations
Obligations of tenants.
16.—In addition to the obligations arising by or under any other enactment, a tenant of a dwelling shall—
(a) pay to the landlord or his or her authorised agent (or any other person where required to do so by any enactment)—
(i) the rent provided for under the F36[tenancy agreement] on the date it falls due for payment, F37[…]
(ii) where the lease or tenancy agreement provides that any charges or taxes are payable by the tenant, pay those charges or taxes in accordance with the lease or tenancy agreement (unless provision to that effect in the lease or tenancy agreement is unlawful or contravenes any F36[other enactment), and]
F38[(iii) the deposit, if any, provided for under the tenancy agreement,]
(b) ensure that no act or omission by the tenant results in there not being complied with the obligations of the landlord, under any enactment, in relation to the dwelling or the tenancy (and in particular, the landlord’s obligations under regulations under section 18 of the Housing (Miscellaneous Provisions) Act 1992),
(c) allow, at reasonable intervals, the landlord, or any person or persons acting on the landlord’s behalf, access to the dwelling (on a date and time agreed in advance with the tenant) for the purposes of inspecting the dwelling,
(d) notify the landlord or his or her authorised agent of any defect that arises in the dwelling that requires to be repaired so as to enable the landlord comply with his or her obligations, in relation to the dwelling or the tenancy, under any enactment,
(e) allow the landlord, or any person or persons acting on the landlord’s behalf, reasonable access to the dwelling for the purposes of allowing any works (the responsibility for the carrying out of which is that of the landlord) to be carried out,
(f) not do any act that would cause a deterioration in the condition the dwelling was in at the commencement of the tenancy, but there shall be disregarded, in determining whether this obligation has been complied with at a particular time, any deterioration in that condition owing to normal wear and tear, that is to say wear and tear that is normal having regard to—
(i) the time that has elapsed from the commencement of the tenancy,
(ii) the extent of occupation of the dwelling the landlord must have reasonably foreseen would occur since that commencement, and
(iii) any other relevant matters,
(g) if paragraph (f) is not complied with, take such steps as the landlord may reasonably require to be taken for the purpose of restoring the dwelling to the condition mentioned in paragraph (f) or to defray any costs incurred by the landlord in his or her taking such steps as are reasonable for that purpose,
(h) not behave within the dwelling, or in the vicinity of it, in a way that is anti-social or allow other occupiers of, or visitors to, the dwelling to behave within it, or in the vicinity of it, in such a way,
(i) not act or allow other occupiers of, or visitors to, the dwelling to act in a way which would result in the invalidation of a policy of insurance in force in relation to the dwelling,
(j) if any act of the tenant’s, or any act of another occupier of, or visitor to, the dwelling which the tenant has allowed to be done, results in an increase in the premium payable under a policy of insurance in force in relation to the dwelling, pay to the landlord an amount equal to the amount of that increase (“the increased element”) (and that obligation to pay such an amount shall apply in respect of each further premium falling due for payment under the policy that includes the increased element),
(k) F39[subject to section 3A(4) (inserted by section 4 of the Residential Tenancies (Amendment) Act 2015), not assign or sub-let] the tenancy without the written consent of the landlord (which consent the landlord may, in his or her discretion, withhold),
(l) not alter or improve the dwelling without the written consent of the landlord which consent the landlord—
(i) in case the alteration or improvement consists only of repairing, painting and decorating, or any of those things, may not unreasonably withhold,
(ii) in any other case, may, in his or her discretion, withhold,
(m) not use the dwelling or cause it to be used for any purpose other than as a dwelling without the written consent of the landlord (which consent the landlord may, in his or her discretion, withhold), and
(n) notify in writing the landlord of the identity of each person (other than a multiple tenant) who, for the time being, resides ordinarily in the dwelling.
Annotations
Amendments:
F36
Substituted (9.07.2021) by Residential Tenancies (No. 2) Act 2021 (17/2021), s. 5(a), (c), commenced on enactment.
F37
Deleted (9.07.2021) by Residential Tenancies (No. 2) Act 2021 (17/2021), s. 5(b), commenced on enactment.
F38
Inserted (9.07.2021) by Residential Tenancies (No. 2) Act 2021 (17/2021), s. 5(d), commenced on enactment.
F39
Substituted (7.04.2016) by Residential Tenancies (Amendment) Act 2015 (42/2015), s. 4(3), S.I. No. 151 of 2016.
F40
Substituted by Residential Tenancies (Amendment) Act 2015 (42/2015), s. 24(a), (b), not commenced as of date of revision.
F41
Inserted by Residential Tenancies (Amendment) Act 2015 (42/2015), s. 24(c), not commenced as of date of revision.
Modifications (not altering text):
C12
Prospective affecting provision: paras. (m) and (n) amended and para. (o) inserted by Residential Tenancies (Amendment) Act 2015 (42/2015), s. 24, not commenced as of date of revision.
(m) not use the dwelling or cause it to be used for any purpose other than as a dwelling without the written consent of the landlord (which consent the landlord may, in his or her discretion, F40[withhold),]
(n) notify in writing the landlord of the identity of each person (other than a multiple tenant) who, for the time being, resides ordinarily in the F40[dwelling, and]
F41[(o) where a deposit referred to in section 12(1)(d) has been paid to the landlord by the tenant, for the purpose of the effecting, by the Board, the return of the deposit to the tenant subject to the conditions specified in section 12(4) and ascertaining, for the purpose of such return, if a default referred to in section 12(4) is to be taken into account—
(i) to respond to the notification of the Board that relates to the return of the deposit in accordance with this Act,
(ii) to provide information, in accordance with this Act, to the Board of any such default, and
(iii) to notify the Board, as soon as practicable, of his or her address for correspondence when the tenancy has ended.]
C13
Application of para. (k) restricted (19.08.2021) by Affordable Housing Act 2021 (25/2021), s. 32(4)(b), S.I. No. 424 of 2021.
Application of Act of 2004
32.— …
(4) Subject to subsection (5), a tenant of a cost rental dwelling shall not assign or sub-let the cost rental tenancy and— …
(b) section 16(k) of the Act of 2004 shall not apply to a cost rental tenancy.
Section 16:interpretation and supplemental.
17.—(1) In section 16—
“alter or improve”, in relation to a dwelling, includes—
(a) alter a locking system on a door giving entry to the dwelling, and
(b) make an addition to, or alteration of, a building or structure (including any building or structure subsidiary or ancillary to the dwelling),
“behave in a way that is anti-social” means—
(a) engage in behaviour that constitutes the commission of an offence, being an offence the commission of which is reasonably likely to affect directly the well-being or welfare of others,
(b) engage in behaviour that causes or could cause fear, danger, injury, damage or loss to any person living, working or otherwise lawfully in the dwelling concerned or its vicinity and, without prejudice to the generality of the foregoing, includes violence, intimidation, coercion, harassment or obstruction of, or threats to, any such person, or
(c) engage, persistently, in behaviour that prevents or interferes with the peaceful occupation—
(i) by any other person residing in the dwelling concerned, of that dwelling,
(ii) by any person residing in any other dwelling contained in the property containing the dwelling concerned, of that other dwelling, or
(iii) by any person residing in a dwelling (“neighbourhood dwelling”) in the vicinity of the dwelling or the property containing the dwelling concerned, of that neighbourhood dwelling.
(2) The reference in section 16(b) to an act or omission by the tenant shall be deemed to include a reference to an act or omission by any other person who, at the time of the doing of the act or the making of the omission, is in the dwelling concerned with the consent of the tenant.
(3) The landlord shall be entitled to be reimbursed by the tenant any costs or expenses reasonably incurred by him or her in deciding upon a request for consent in relation to the tenant’s doing a thing referred to in paragraph (k), (l) or (m) of section 16 (whether the consent is granted or refused).
(4) If the amount of the premium referred to in section 16(j) is, apart for the reason mentioned in that provision, subsequently increased or reduced then the reference in that provision to the increased element shall be construed as a reference to the amount concerned as proportionately adjusted in line with the increase or reduction.
No contracting out from terms of section 12 or 16 permitted, etc.
18.—(1) Subject to subsections (2) and (3), no provision of any lease, tenancy agreement, contract or other agreement (whether entered into before, on or after the commencement of this Part) may operate to vary, modify or restrict in any way section 12 or 16.
(2) Subsection (1) does not prevent more favourable terms for the tenant than those that apply by virtue of section 12 being provided for in the lease or tenancy agreement concerned.
(3) Obligations additional to those specified in section 16 may be imposed on the tenant by the lease or tenancy agreement concerned but only if those obligations are consistent with this Act.
PART 3
Rent and Rent Reviews
Annotations:
Modifications (not altering text):
C14
Application of Part restricted (19.08.2021) by Affordable Housing Act 2021 (25/2021), s. 33(1), S.I. 424 of 2021.
Setting and review of rent in cost rental tenancy
33.(1) Part 3 of the Act of 2004 shall not apply to the payment or setting of rent under a cost rental tenancy.
…
Setting of rent above market rent prohibited.
19.—(1) In setting, at any particular time, the rent under the tenancy of a dwelling, an amount of rent shall not be provided for that is greater than the amount of the market rent for that tenancy at that time.
(2) The reference in this section to the setting of the rent under a tenancy is a reference to—
(a) the initial setting of the rent under the tenancy, and
(b) any subsequent setting of the rent under the tenancy by way of a review of that rent.
F42[(3) The setting of the rent under the tenancy of a dwelling that is carried out on or after the relevant date shall be subject to subsections (4) to (7).
F43[(4) (a) The setting (in this subsection referred to as the “next setting”) of a rent under the tenancy of a dwelling in a rent pressure zone at any time after the commencement of section 3 of the Residential Tenancies (Amendment) Act 2021 shall neither—
(i) result in such increase in rent as would cause the new rent under the tenancy to exceed the old rent by more than the relevant percentage, nor
(ii) result in such increase in rent as would cause the ratio of the new rent under the tenancy to the old rent to exceed the ratio of the current HICP value to the previous HICP value.
(b) In this subsection—
“current HICP value” means the HICP value published by the Board in accordance with subsection (4C) relating—
(a) to the month immediately preceding the month in which the next setting takes place, or
(b) in a case in which the HICP value relating to the month first-mentioned in paragraph (a) is not so published on or before the next setting, to the month immediately preceding that month;
“new rent” means, in relation to the tenancy of a dwelling, the rent under the tenancy set at the next setting;
“old rent” means, in relation to the tenancy of a dwelling—
(a) the rent under that tenancy set at the previous setting, or
(b) where that tenancy is a new tenancy, the rent under the tenancy (immediately preceding the new tenancy) of that dwelling set at the previous setting;
“previous HICP value” means—
(a) in relation to a previous setting that took place before the commencement of section 3 of the Residential Tenancies (Amendment) Act 2021, the HICP value published by the Board in accordance with subsection (4C) relating to the month in which the previous setting took place,
(b) in relation to a previous setting that takes place on or after such commencement—
(i) the HICP value published by the Board in accordance with subsection (4C) relating to the month immediately preceding the month in which the previous setting took place, or
(ii) in circumstances where the HICP value referred to in subparagraph (i) was not so published by the time the previous setting took place, the HICP value so published relating to the month immediately preceding the month first-mentioned in that subparagraph;
“previous setting” means, in relation to the next setting of a rent under the tenancy of a dwelling, the most recent setting (before the next setting) of the rent under—
(a) that tenancy of the dwelling, or
(b) where the next setting relates to a new tenancy of that dwelling, the tenancy of that dwelling immediately preceding the new tenancy;
“relevant percentage” means, in relation to the setting of the rent under the tenancy of a dwelling—
(a) 2 per cent of the old rent in respect of each year that has elapsed since the previous setting, and
(b) as respects any additional period that has elapsed between the previous setting and the next setting that is shorter than a year, such percentage as bears to 2 per cent the same proportion that that period bears to a year.
(c) For the purposes of this subsection, a tenancy immediately precedes a new tenancy if—
(i) it expired at any time—
(I) during the period of 2 years prior to the creation or coming into being of the new tenancy, or
(II) in the case of a new tenancy to which subparagraph (i) of paragraph (a) of subsection (5) applies, during the period of one year prior to the creation or coming into being of the new tenancy, and
(ii) no other tenancy was created or came into being during the period between the expiration of that tenancy and the creation, or coming into being, of the new tenancy.]
F44[(4A) F45[…]
(4B) F45[…]
(4C) The Board shall—
(a) establish and maintain a rent pressure zone calculator to calculate any increase in rent in a rent pressure zone in accordance with F46[subsection (4)], and
(b) publish and keep up to date a table of HICP values published by the Central Statistics Office.
(4D) The Minister, for the purposes of F46[subsections (4) and (4C)], may prescribe—
(a) the means by which the rent pressure zone calculator referred to in subsection (4C)(a) shall operate to accurately calculate any increase in rent in a rent pressure zone by applying the HICP values to the rent,
(b) the information to be furnished in the table referred to in subsection (4C)(b), F47[and]
(c) the form and manner of publication by the Board of that calculator and F46[table.]
(d) F48[…]]
(5) F49[Subsection (4) does not apply]—
F50[(a) to the rent first set under the tenancy of—
(i) a dwelling—
(I) in a protected structure or proposed protected structure within the meaning of the Planning and Development Act 2000, or
(II) that is such a structure,
provided that no tenancy in respect of that dwelling subsisted during the period of one year immediately preceding the date on which the tenancy concerned commenced, or
(ii) any other dwelling, provided that no tenancy in respect of that dwelling subsisted during the period of 2 years immediately preceding the date on which the tenancy concerned commenced,]
(b) if, in the period since the rent was last set under a tenancy for the dwelling—
(i) a substantial change in the nature of the accommodation provided under the tenancy occurs, and
(ii) the rent under the tenancy, were it to be set immediately after that change, would, by virtue of that change, be F51[greater than] the market rent for the tenancy at the time the rent was last set under a tenancy for the dwelling.
F52[(5A) For the purposes of paragraph (b) of subsection (5), a substantial change in the nature of the accommodation provided under the tenancy shall only have taken place where—
(a) the works carried out to the dwelling concerned—
(i) consist of a permanent extension to the dwelling that increases the floor area (within the meaning of Article 6 of the Building Regulations 1997 (S.I. No. 497 of 1997)) of the dwelling by an amount equal to not less than 25 per cent of the floor area (within such meaning) of the dwelling as it stood immediately before the commencement of those works,
(ii) in the case of a dwelling to which the European Union (Energy Performance of Buildings) Regulations 2012 (S.I. No. 243 of 2012) apply, result in the BER (within the meaning of those Regulations) being improved by not less than 7 building energy ratings, or
(iii) result in any 3 or more of the following:
(I) the internal layout of the dwelling being permanently altered;
(II) the dwelling being adapted to provide for access and use by a person with a disability, within the meaning of the Disability Act 2005;
(III) a permanent increase in the number of rooms in the dwelling;
(IV) in the case of a dwelling to which the European Union (Energy Performance of Buildings) Regulations 2012 (S.I. No. 243 of 2012) apply and that has a BER of D1 or lower, the BER (within the meaning of those Regulations) being improved by not less than 3 building energy ratings; or
(V) in the case of a dwelling to which the European Union (Energy Performance of Buildings) Regulations 2012 (S.I. No. 243 of 2012) apply and that has a BER of C3 or higher, the BER (within the meaning of those Regulations) being improved by not less than 2 building energy ratings,
and
(b) the works carried out under paragraph (a) do not solely consist of works carried out for the purposes of compliance with section 12(1)(b).]
F53[(5B) Where, in setting, at any particular time, the rent under the tenancy of a dwelling in a rent pressure zone, a landlord seeks to rely on subsection (5), the landlord shall—
(a) serve a notice in the prescribed form together with all relevant supporting information on the Board setting out the reasons why, in the landlord’s opinion, subsection (4) does not apply to the dwelling,
(b) specify in the notice the rent set under the tenancy of the dwelling and the amount of rent last set under the tenancy of the dwelling, and
(c) serve the notice and information under paragraphs (a) and (b) within 1 month from the setting of the rent under the tenancy of the dwelling.]
F54[(6) Where—
(a) a notice under section 22(2) has been served on the tenant, or
(b) the review of the rent concerned has commenced,
before the relevant date, or, if an order is made by the Minister under section 24A(5) in respect of an area where the dwelling concerned is situate, before the date of the coming into operation of the order, then F49[subsections (3) and (4)] shall not apply to the new rent, referred to in section 22(2), stated in that notice in accordance with that section.]
F55[(6A) A person who fails to comply with the requirements of F56[subsection (4) F48[…]] shall be guilty of an offence.]
F57[(6B) A person, who in purported compliance with subsection (5B), furnishes information to the Board which is false or misleading in a material respect knowing it to be so false or misleading or being reckless as to whether it is so false or misleading shall be guilty of an offence.
(6C) A person who fails to comply with the requirements of subsection (5B) shall be guilty of an offence.]
(7) In this section—
F44[“HICP values” means the values contained in the most recent data available monthly in the All-Items Harmonised Index of Consumer Prices in relation to Ireland and published monthly by the Central Statistics Office in accordance with Regulation (EU) 2016/7921of the European Parliament and of the Council of 11 May 2016 on harmonised indices of consumer prices and the house price index, and repealing Council Regulation (EC) No. 2494/95;]
F48[…]
“relevant date” means the date section 33 of the Planning and Development (Housing) and Residential Tenancies Act 2016 comes into operation;
“rent pressure zone” means an area—
(a) prescribed by the Minister by order under section 24A as a rent pressure zone under that section, or
(b) in respect of an area to which section 24B relates, deemed to be so prescribed by the Minister under section 24A.]
Tenant to be notified of new rent.
22.—(1) The setting of a rent (the “new rent”) pursuant to a review of the rent under a tenancy of a dwelling and which is otherwise lawful under this Part shall not have effect unless and until the condition specified in subsection (2) is satisfied.
(2) That condition is that, at least F64[90 days] before the date from which the new rent is to have effect, a notice F65[in the prescribed form] is served by the landlord on the tenant stating the amount of the new rent and the date from which it is to have effect F66[and the matters specified in subsection (2A)].
F66[(2A) The notice referred to in subsection (2) shall—
(a) without prejudice to subsection (2) and pursuant to the condition referred to in that subsection, state the amount of the new rent and the date from which it is to have effect,
(b) include a statement that a dispute in relation to the setting of a rent pursuant to a review of the rent under a tenancy must be referred to the Board under Part 6 before—
(i) the date stated in the notice as the date from which that rent is to have effect, or
(ii) the expiry of 28 days from the receipt by the tenant of that notice,
whichever is the later,
(c) include a statement by the landlord that in his or her opinion the new rent is not greater than the market rent, having regard to—
(i) the other terms of the tenancy, and
(ii) letting values of dwellings—
(I) of a similar size, type and character to the dwelling that is the subject of the tenancy, and
(II) situated in a comparable area to that in which the dwelling the subject of the tenancy concerned is situated,
(d) specify, for the purposes of F67[paragraph (c)], and without prejudice to the generality of that paragraph, the amount of rent sought for 3 dwellings—
(i) of a similar size, type and character to the dwelling that is the subject of the tenancy, and
(ii) situated in a comparable area to that in which the dwelling the subject of the tenancy concerned is situated,
F68[…]
(e) include the date on which the notice is F67[signed, F69[…]]
F70[(f) where the dwelling is in a rent pressure zone (within the meaning given in section 19(7)), state how the rent set under the tenancy was calculated having regard to section 19(4) or, where section 19(4) does not apply, state why it does F71[not apply, and]]
F72[(g) where the dwelling is in a rent pressure zone (within the meaning given by section 19(7)) to which F73[section 19(4)] applies, state how any increase in the rent last set under the tenancy of the dwelling was calculated or, where F73[section 19(4)] does not apply, state why it does not apply.]
(2B) The notice referred to in subsection (2) shall be signed by the landlord or his or her authorised agent.
(2C) In this section “amount of rent sought” means the amount of rent specified for the letting of a dwelling in an advertisement the date of which falls within the period of 4 weeks immediately preceding the date on which the notice referred to in subsection (2) is served.]
(3) Where that condition is satisfied, a dispute in relation to a rent falling within subsection (1) must be referred to the Board under Part 6 before—
(a) the date stated in the notice under subsection (2) as the date from which that rent is to have effect, or
(b) the expiry of 28 days from the receipt by the tenant of that notice,
whichever is the later.
“Market rent”, references to rent reviews, etc.
24.—(1) In this Part “market rent”, in relation to the tenancy of a dwelling, means the rent which a willing tenant not already in occupation would give and a willing landlord would take for the dwelling, in each case on the basis of vacant possession being given, and having regard to—
(a) the other terms of the tenancy, and
(b) the letting values of dwellings of a similar size, type and character to the dwelling and situated in a comparable area to that in which it is situated.
(2) References in this Part to a review of a rent include references to—
(a) any procedure (however it is described) for determining whether, and to what extent, a reduction or increase in the amount of the rent for the time being payable under the tenancy concerned ought to have effect, and
(b) the effect of the operation of a provision of a lease or tenancy agreement providing that, by reference to any formula, happening of any event or other matter whatsoever (and whether any act, decision or exercise of discretion on the part of any person is involved or not), such a reduction or increase shall have effect,
and, in the case of a provision of the kind referred to in paragraph (b), any prohibition under this Part on a review of rent occurring is to be read as a prohibition on the provision operating to have the foregoing effect.
(3) References in this Part to the setting of a rent are references to the oral agreeing of the rent or to its being provided for in a lease or tenancy agreement or, in the context of a review of rent—
(a) the oral agreeing of the rent,
(b) the oral or written notification of the rent, or
(c) in the case of a provision of the kind referred to in subsection (2)(b), the rent being set by virtue of the operation of that provision.
Annotations:
Modifications (not altering text):
C24
Application of Part restricted (19.08.2021) by Affordable Housing Act 2021 (25/2021), s. 33(1), S.I. 424 of 2021.
Setting and review of rent in cost rental tenancy
33.(1) Part 3 of the Act of 2004 shall not apply to the payment or setting of rent under a cost rental tenancy.
F75[
Rent pressure zones
24A. (1) The Housing Agency, following consultation with the relevant housing authority, may make a proposal in writing to the Minister that an area be prescribed by order as a rent pressure zone.
(2) As soon as practicable, but no later than 1 week after the date of receipt of the proposal under subsection (1), the Minister shall request the Director to make a report to the Minister (in this section referred to as a ‘rent zone report’), in such form as the Minister may approve, on whether, in so far as the area the subject of the proposal is concerned, the criteria specified in subsection (4) for designation as a rent pressure zone are satisfied.
(3) Within 2 weeks after the date that the Minister made the request under subsection (2), the Director shall furnish the Minister with the rent zone report.
(4) In making a rent zone report to the Minister, the Director shall confirm whether or not the following criteria have been met—
(a) the information relating to the area concerned, as determined by reference to the information used to compile each Rent Index quarterly report, shows that the annual rate of increase in the average amount of rent for that area is more than 7 per cent in each of at least 4 of the 6 quarters (each being a period of 3 months that is contemporaneous with the period to which the Rent Index quarterly report concerned relates) preceding the period immediately prior to the date of the proposal by the Housing Agency to the Minister under subsection (1), and
F76[(b) the average rent (determined by reference to the information specified in paragraph (a)) in the area in respect of the 3 months to which the most recent Rent Index quarterly report applies is—
(i) in the case of the county of Kildare, the county of Meath, the county of Wicklow or a local electoral area in any one of those counties, above the average rent in the State (other than the Dublin Area) specified in that report, or
(ii) in the case of any—
(I) other county or local electoral area, or
(II) any city, city and county or local electoral area situated in such city or city and county,
above the average rent in the State (other than the Greater Dublin Area) specified in that report.]
(5) Where the Minister receives a rent zone report from the Director and the report confirms that the criteria in subsection (4) are satisfied, the Minister shall by order prescribe the area as a rent pressure zone for a specified period not exceeding 3 years.
(6) Where a local electoral area is prescribed by order as a rent pressure zone and, subsequently, any local electoral areas are duly amended in a manner that affects the area of the local electoral area so prescribed, then the order shall continue to have effect as if the local electoral area concerned had not been so amended.
(7) The Minister may, on a recommendation from the Housing Agency, by order revoke an order made under subsection (5) or a deemed order under section 24B and, accordingly, section 8(3) does not apply to any such order or deemed order.
(8) In making a recommendation under subsection (7), the Housing Agency shall consider and provide a report to the Minister, on such matters as may be prescribed having regard to—
(a) the operation of the rental market,
(b) the operation of the housing market, and
(c) changes in rent levels in the period since the area concerned was designated as a rent pressure zone;
and, before making such a recommendation and providing a report under this subsection, the Housing Agency shall consult with the Board and the housing authority concerned on the matter.
(9) The Board shall publish, in such manner as it thinks fit, a notice of the making of an order by the Minister under subsection (5) or (7).
(10) In this section—
“area” means—
(a) the administrative area of a housing authority, or
(b) a local electoral area within the meaning of section 2 of the Local Government Act 2001;
F77[“Dublin Area” means—
(a) the city of Dublin, and
(b) the counties of South Dublin, Fingal and Dún Laoghaire-Rathdown;
“Greater Dublin Area” means—
(a) the Dublin Area, and
(b) the counties of Kildare, Wicklow and Meath;]
“Housing Agency” has the same meaning as it has in the Pyrite Resolution Act 2013;
“Rent Index quarterly reports” has the meaning given in the definition of “Rent Index”;
“Rent Index” means the publication known as the Residential Tenancies Board Rent Index which is published by the Board in respect of each successive period of 3 months in every calendar year (in this section referred to as “Rent Index quarterly reports”) pursuant to its functions under section 151(1)(e) and includes any other publication that it replaced or may replace it for the purposes of those functions.]
Annotations
Amendments:
F75
Inserted (24.12.2016) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 36, commenced as per s. 1(3)(b).
F76
Substituted (4.06.2019) by Residential Tenancies (Amendment) Act 2019 (14/2019), s. 8(1)(a), S.I. No. 236 of 2019.
F77
Inserted (4.06.2019) by Residential Tenancies (Amendment) Act 2019 (14/2019), s. 8(1)(b), S.I. No. 236 of 2019.
Modifications (not altering text):
C25
Application of Part restricted (19.08.2021) by Affordable Housing Act 2021 (25/2021), s. 33(1), S.I. 424 of 2021.
Setting and review of rent in cost rental tenancy
33.(1) Part 3 of the Act of 2004 shall not apply to the payment or setting of rent under a cost rental tenancy.
C26
Application of subs. (5), and orders made under subs. (5), restricted (4.06.2019) by Residential Tenancies (Amendment) Act 2019 (14/2019), s. 8(2), S.I. No. 236 of 2019.
(2) Notwithstanding subsection (5) of section 24A of the Act of 2004 or any order made thereunder, the period specified in any such order to be the period during which an area shall stand prescribed as a rent pressure zone shall expire on 31 December 2021.
Editorial Notes:
E31
Power pursuant to subs. (5) exercised (29.09.2020 to 31.12.2021) by Rent Pressure Zone (Administrative Area of Kildare County Council) Order 2020 (S.I. No. 380 of 2020), in effect as per art. 2.
Setting and review of rent in cost rental tenancy
33.(1) Part 3 of the Act of 2004 shall not apply to the payment or setting of rent under a cost rental tenancy.
F82[Application of section 20 (frequency with which rent reviews may occur) to rent pressure zones
24C. (1) Where a tenancy commenced before the relevant date (within the meaning of section 19(7)) and the area in which the tenancy is situated is in a rent pressure zone (within the meaning of that section), then—
(a) the first rent review after the relevant date shall be carried out in accordance with section 20, and
(b) any subsequent rent review shall be carried out as if subsections (4) to (6) of section 20 had not been enacted.
(2) Where a tenancy commences on or after the relevant date (within the meaning of section 19(7)), and the area in which the tenancy is situated is in a rent pressure zone (within the meaning of that section), then any rent review after that date shall be carried out as if subsections (4) to (6) of section 20 had not been enacted.]
Annotations
Amendments:
F82
Inserted (24.12.2016) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 36, commenced as per s. 1(3)(b).
Modifications (not altering text):
C29
Application of Part restricted (19.08.2021) by Affordable Housing Act 2021 (25/2021), s. 33(1), S.I. 424 of 2021.
Setting and review of rent in cost rental tenancy
33.(1) Part 3 of the Act of 2004 shall not apply to the payment or setting of rent under a cost rental tenancy.
PART 4
Security of Tenure
Preliminary
Non-application of Part.
25.—(1) This Part does not apply to a tenancy of a dwelling where the conditions specified in subsection (2) are satisfied if the landlord of the dwelling opts, in accordance with subsection (3), for this Part not to apply to it.
(2) Those conditions are—
(a) the dwelling concerned is one of 2 dwellings within a building,
(b) that building, as originally constructed, comprised a single dwelling, and
(c) the landlord resides in the other dwelling.
(3) A landlord’s opting as mentioned in subsection (1) shall be signified in writing in a notice served by him or her on the tenant before the commencement of the tenancy.
(4) This Part does not apply to a tenancy of a dwelling—
(a) if the landlord of the dwelling is entitled, in relation to expenditure incurred on the construction of, conversion into, or, as the case may be, refurbishment of, the dwelling, to a deduction of the kind referred to in section 380B(2), 380C(4) or 380D(2) (inserted by the Finance Act 1999) of the Taxes Consolidation Act 1997, or
(b) if the entitlement of the tenant to occupy the dwelling is connected with his or her continuance in any office, appointment or employment.
F83[(5) This Part does not apply to a tenancy of the dwelling referred to in section 3(4) where—
(a) the dwelling concerned is designated by the approved housing body for the use by it as a transitional dwelling, and
(b) the consent of the public authority which—
(i) is, in the case of a dwelling referred to in paragraph (a) of section 3(4), a party to the lease or contract referred to in section 3(2A), or
(ii) provides, in the case of a dwelling referred to in paragraph (b) of section 3(4), the assistance referred to in that paragraph,
has, in respect of the designation referred to in paragraph (a), been obtained by the approved housing body before it makes the designation.
(6) In subsection (5) “transitional dwelling” means a dwelling that an approved housing body leases for periods not exceeding 18 months for the purposes of the approved housing body concerned.
(7) Where, before the coming into operation of section 3 of the Residential Tenancies (Amendment) Act 2015, an approved housing body had not, for the purposes of subsection (5), made a designation in respect of a dwelling referred to in paragraph (a) or (b) of section 3(4) that it leases to a household referred to in subsection (2A) or (4)(b) of section 3 for a period not exceeding 18 months, the approved housing body concerned—
(a) may designate that dwelling to be a transitional dwelling for the purposes of subsection (5) at any time during the period of 12 months commencing on the day on which section 3 of the Residential Tenancies (Amendment) Act 2015 comes into operation, and
(b) shall notify the Minister of that designation not later than 3 months after it is made.]
Chapter 2
Statement of essential protection enjoyed by tenants
Periods of occupancy before relevant date to be disregarded.
27.—In this Part “continuous period of 6 months” means a continuous period of 6 months that commences on or after the relevant date F84[or, in the case of a dwelling the subject of a tenancy referred to in section 3(4) (inserted by section 3 of the Residential Tenancies (Amendment) Act 2015), shall be construed in accordance with section 3B(a) (inserted by section 4 of the Residential Tenancies (Amendment) Act 2015)].
Annotations
Amendments:
F84
Inserted (7.04.2016) by Residential Tenancies (Amendment) Act 2015 (42/2015), s. 4(4), S.I. No. 151 of 2016.
Statutory protection — “Part 4 tenancy” — after 6 months occupation.
28.—F85[(1) Where a person has been in occupation of a dwelling under a tenancy for a continuous period of 6 months and the condition specified in subsection (3) is satisfied, that tenancy shall, subject to Chapter 3, continue in existence for a period of unlimited duration from the date on which the first-mentioned period expires.]
(2) F86[…]
(3) The condition mentioned in subsection (1) is that no notice of termination (giving the required period of notice) has been served in respect of the tenancy before the expiry of the period of 6 months mentioned in that subsection.
(4) Despite the fact that such a notice of termination has been so served, that condition shall be regarded as satisfied if the notice is subsequently withdrawn.
“Part 4 tenancy”— meaning of that expression.
F87[29. For the purposes of this Act, each of the following is a Part 4 tenancy:
(a) a tenancy that continues in existence by virtue of subsection (1) (inserted by subsection (1) of section 5 of the Residential Tenancies (Amendment) Act 2021) of section 28;
(b) a tenancy that continues in existence in accordance with subsection (3) of section 5 of the Residential Tenancies (Amendment) Act 2021;
(c) a new tenancy referred to in subsection (4) of section 5 of the Residential Tenancies (Amendment) Act 2021.]
Annotations:
Amendments:
F87
Substituted (11.06.2022) by Residential Tenancies (Amendment) Act 2021 (39/2021), s. 6(1)(b), commenced as per subs. (2) and s. 5(5), subject to transitional provisions for existing tenancies in s. 5(2)-(4).
Terms of Part 4 tenancy.
30.—F88[(1) Subject to subsections (2) and (3), the terms of a Part 4 tenancy shall—
(a) in the case of a tenancy that continues in existence by virtue of subsection (1) (inserted by subsection (1) of section 5 of the Residential Tenancies (Amendment) Act 2021) of section 28, be those of the tenancy of which it is a continuation,
(b) in the case of a tenancy that continues in existence in accordance with subsection (3) of section 5 of the Residential Tenancies (Amendment) Act 2021, be those of the tenancy of which it is a continuation, and
(c) in the case of a new tenancy of a dwelling referred to in subsection (4) of section 5 of the Residential Tenancies (Amendment) Act 2021, be those of the tenancy of that dwelling immediately preceding the new tenancy.]
(2) At any time during the period of a Part 4 tenancy, the parties may, by agreement, vary its terms.
(3) Neither—
(a) any term of the tenancy of which the Part 4 tenancy is a continuation, nor
(b) any term purported to be provided for by a variation under subsection (2),
shall be a term of a Part 4 tenancy if the term is inconsistent with this or any other Part of this Act.
Annotations:
Amendments:
F88
Substituted (11.06.2022) by Residential Tenancies (Amendment) Act 2021 (39/2021), s. 6(1)(c), commenced as per subs. (2) and s. 5(5), subject to transitional provisions for existing tenancies in s. 5(2)-(4).
Sections 28 and 30: special cases.
31.—(1) The reference in section 28(1) to a continuous period of occupation under a tenancy includes a reference to a continuous period of occupation under a series of 2 or more tenancies.
(2) Where the continuous occupation referred to in section 28(1) has been under a series of 2 or more tenancies—
(a) in section 28(2), “the tenancy mentioned in subsection (1)” means the last of those tenancies,
(b) in section 28(2)(a)(i), “the commencement of the tenancy” means the commencement of the first of those tenancies, and
(c) in section 28(3), “the tenancy” means the last of those tenancies,
and section 30 shall be construed accordingly.
Further special case (sub-letting of Part 4 tenancy).
32.—(1) F1[Schedule 1] to this Act has effect for the purpose of affording protection in relation to a sub-tenancy created out of a Part 4 tenancy or a further Part 4 tenancy.
(2) The creation of a sub-tenancy in respect of part only of the dwelling, the subject of a Part 4 tenancy or a further Part 4 tenancy, is prohibited.
(3) Any such sub-tenancy purported to be created is void.
Cases
Walsh v Lonsdale
(1882) 21 Ch. D. 9
…
JESSEL MR:
… Now the question at present before us on this appeal is one of some nicety. There is an agreement for a lease under which possession has been given. Nowadays, since the Judicature Act, the possession is held under the agreement. There are not two estates as there were formerly, one estate at common law by reason of the payment of the rent from year to year, and an estate in equity under the agreement. There is only one. There is only one court, and the equity rules prevail. This tenant holds under an agreement.
Phoenix Picture Palace Ltd v Capital and Allied Theatres Ltd
[1951] Ir. Jur. Rep. 55.
DIXONJ:
… On 7th December 1949, a notice to quit was served on the defendants
purporting to terminate their tenancy on the 19th day of December, 1949. It is not contested that, if, as the plaintiffs contend, the tenancy had becomea weekly one, this was a valid and effective notice to terminate it. The defendants contend that the tenancy was and is a yearly one and could, accordingly, only be terminated by six months’ notice expiring at the end of the year of the tenancy. It is usually stated to be the law that where a tenant remains in possession after the expiration of his term and rent is paid and accepted without more, the parties are presumed to have agreed to a yearly tenancy, on the original terms and conditions so far as applicable to sucha tenancy.
This is, however, a very general statement. A more precise one will be found in De Moleyns’ Landowners’ Guide … in these words: “No writing is needed to create this tenancy, which arises by implication of law, whenevera person remains, or is placed, in possession of premises, with the understanding, express or implied, of paying an annual rent with reference to a yearly tenancy; but this payment of rent is only evidence of the contract of tenancy and may be rebutted” …. it seems to me, therefore, that the necessary foundation … for presuming an agreement for a yearly tenancy is missing. After the expiration of this lease the rent continued to be paid, as already stated, asa rent fixed by reference to a week as the unit of time. It may be true that some of the terms of the original lease would not be appropriate to a weekly tenancy but I think this consideration begs the question since these terms were inserted in respect of a tenancy which it was contemplated would continue for three years and, in any event, any presumed new tenancy is only subject to the old terms and conditions so far as applicable to the new kind of tenancy.
It seems to me equally irrelevant that some of the terms of the lease might not be appropriate to a yearly tenancy. Precisely the same point as involved in this case seem to have arisen before … I have some doubt on the matter, but incline to the view thata weekly tenancy had subsisted since the expiration of the lease and until the expiry of the notice to quit. It might not be unnecessary to mention s.5 of Deasy’s Act, 1860 … If the reference there to continue in possession “after the expiration or determination of the term agreed upon in any lease or instrument in writing” is sufficiently wide to include a case like the present, the application of the section is excluded by the circumstance that it only gives an option to the landlord, in certain circumstances, to treat the overholding tenant as holding from year to year.
Gowrie Park Utility Society v Fitzgerald
[1963] IR 436
HENCHY J …
The defence is, first, that the plaintiffs are not entitled as judgment mortgagees to maintain an action for possession, and, secondly, that, even if they are, the undated agreement which I have just read out entitles the defendant to possession of the premises pending the specific performance of that agreement.
In reply to the defendant’s first contention, the plaintiffs say that the defendant is estopped from questioning the plaintiffs’ title, having entered into possession under the caretaker’s agreement, dated the 25th November, 1957. I have been referred to the well-known rule of estoppel in relation to the law of landlord and tenant, whereby a tenant is estopped from disputing the title at the time of the demise of the landlord who let him into possession. This rule is not confined to cases where the relationship is one of landlord and tenant. It is equally applicable to the case of a caretaker.
To hold otherwise would be to abrogate the doctrine of estoppel in pais in respect ofa situation for which it is ideally suited so as to prevent injustice. One need only take an example of one of the commoner uses ofa caretaker’s agreement to illustrate this. It is not unusual for a purchaser of premises who is anxious for one reason or another to obtain possession before the completion of the sale to enter into a caretaker’s agreement for that purpose. Should it transpire, upon investigation of the title by the purchaser, that the vendor cannot make out title in accordance with the contract by reason, for example, that the legal estate is outstanding in a mortgagee, the sale will fall through and the vendor will terminate the caretaker’s agreement for the purpose of recovering possession. In such a case, could the person in possession resist ejectment proceedings brought by the vendor by disputing the latter’s title to make the caretaker’s agreement? Clearly not. The person in possession has by his conduct estopped himself from making such a case and, once the caretaker’s agreement is put an end to, he is a trespasser. It would be quite unjust if he were to be allowed to retain possession and thereby, perhaps, acquire a title to the premises by virtue of the Statute of Limitations, while the vendor stood helplessly by …
Bruton v London and Quadrant Housing Trust
[1999] 3 All E.R. 481
LORD HOFFMANN:
My Lords, the question in this appeal is whether Mr Bruton has a tenancy of a flat in Brixton. He occupies the flat under an agreement dated 31 January 1989 with the London and Quadrant Housing Trust (the trust). The trust is a charitable housing trust which, among other things, provides short-term accommodation for the homeless and others in need of housing …
But the trust denies that it granted a tenancy. It says that the agreement created only a licence to use the flat. When Mr Bruton brought proceedings in the Lambeth County Court to enforce the implied covenants, it served a notice to quit and claimed a declaration that Mr Bruton had no statutory security of tenure because he was only a licensee …
The flat is in a block belonging to the London Borough of Lambeth (the council). It acquired the block in 1975 for housing purposes by the use of compulsory powers contained in provisions which have now been consolidated in Pt II (Provision of housing accommodation) of the Housing Act 1985. The council intended to demolish the block and build new houses or flats on the site. But the scheme was delayed. On 27 March 1986 it entered into an agreement with the trust by which it permitted the trust to use the premises in furtherance of its charitable housing objects. The agreement was called a licence and it is agreed that it was not a grant of an estate or other proprietary interest in the premises …
Did this agreement create a ‘lease’ or ‘tenancy’ within the meaning of the Landlord and Tenant Act 1985 or any other legislation which refers to a lease or tenancy? The decision of this House in Streetv Mountford [1985]
2 All ER 289, [1985] AC 809 is authority for the proposition thata ‘lease’ or ‘tenancy’ isa contractually binding agreement, not referable to any other relationship between the parties, by which one person gives another the right to exclusive occupation of land for a fixed or renewable period or periods of time, usually in return for a periodic payment in money. An agreement having these characteristics creates a relationship of landlord and tenant to which
the common law or statute may then attach various incidents. The fact that the parties use language more appropriate to a different kind of agreement, such asa licence, is irrelevant if upon its true construction it has the identifying characteristics ofa lease. The meaning of the agreement, for example, as to the extent of the possession which it grants, depend upon the intention of
the parties, objectively ascertained by reference to the language and relevant background …
In this case, it seems to me that the agreement, construed against the relevant background, plainly gave Mr Bruton a right to exclusive possession. There is nothing to suggest that he was to share possession with the trust, the coundl or anyone else … Nor was t ere any other relationship between the parties to which Mr Bruton’s exclusive possession could be referable …
My Lords, in my opinion, that is the end of the matter. But the Court of Appeal did not stop at that point. In the leading majority judgment, Millett LJ ([1997] 4 All ER 970 at 979, [1998] OB 834 at 845) said that an agreement could not bea lease unless it had a further characteristic, namely that it createda legal estate in the land which ‘binds the whole world’. If, as in this case, the grantor had no legal estate, the agreement could not create one and therefore did not qualify as a lease. The only exception was the case in which the grantor was estopped from denying that he could not createa legal estate. In that case, a ‘tenancy by estoppel’ came into existence. But an estoppel depended upon the grantor having purported to granta lease and in this case the trust had not done so. It had made it clear that it was only purporting to grant a licence.
My Lords, I hope that this summary does justice to the closely reasoned judgment of Millett LJ. But I fear that I must respectfully differ at three critical steps in the argument.
First, the term ‘lease’ or ‘tenancy’ describes a relationship between two parties who are designated landlord and tenant. It is not concerned with the question of whether the agreement creates an estate or other proprietary interest which may be binding upon third parties. A lease may, and usually does, createa proprietary interest called a leasehold estate or, technically,a ‘term of years absolute’. This will depend upon whether the landlord had an interest out of which he could grant it. Nemo dat quad non habet. But it is the fact that the agreement is a lease which creates the proprietary interest. It is
putting the cart before the horse to say that whether the agreement isa lease depends upon whether it creates a proprietary interest …
Secondly, I think that Millett LJ may have been misled by the ancient phrase ‘tenancy by estoppal’ into thinking that it described an agreement which would not otherwise be a lease or tenancy but which was treated as being one by virtue of an estoppel. In fact, as the authorities show, it is not the estoppel which creates the tenancy, but the tenancy which creates the estoppel. The estoppel arises when one or other of the parties wants to deny one of the ordinary incidents or obligations of the tenancy on the ground that the landlord had no legal estate. The basis of the estoppel is that having entered into an agreement which constitutes a lease or tenancy, he cannot repudiate that incident or obligation. So in Morton v Woods (1869) LR 4 OB 293 Kelly CB said (at 304):
‘ it is the creation of the tenancy, or the estoppel, which arises from the
creation of the relation of landlord and tenant by agreement between the parties, that makes the actual legal estate unnecessary to support the distress ‘
Thus it is the fact that the agreement between the parties constitutes a tenancy that gives rise to an estoppel and not the other way round. It therefore seems to me that the question of tenancy by estoppel does not arise in this case. The issue is simply whether the agreement is a tenancy. It is not whether either party is entitled to deny some obligation or incident of the tenancy on the ground that the trust had no title.
Thirdly, I cannot agree that there is no inconsistency between what the trust purported to do and its denial of the existence of a tenancy. This seems to me to fly in the face of Street v Mountford [1985] 2 All ER 289, [1985] AC 809. In my opinion, the trust plainly did purport to grant a tenancy. It entered into an agreement on terms which constituted a tenancy. It may have agreed with Mr Bruton to say that it was not a tenancy. But the parties cannot contract out of the Rent Acts or other landlord and tenant statutes by such devices. Nor in my view can they be used by a landlord to avoid being estopped from denying that he entered into the agreement he actually made.
For these reasons I would allow the appeal and declare that Mr Bruton was a tenant. I should add that I express no view on whether he was a secure tenant or on the rights of the council to recover possession of the flat.
Lyle v Smith
[1909] 2 1.R. 58
LORD O’BRIEN LCJ:
This case brings up again a controversy which has existed for some centuries in our law, namely when, does a covenant run with the land? … The sea-wall which is referred to is not on any part of the demised premises, but is essential to the protection and preservation of the demised premises … The whole of the wall and the wall as a whole is necessary for the protection of the coast. Ifa breach remained unrepaired, the sea would scour behind the remainder, and eventually the entire wall would be swept away. Ultimately the sea would undermine and destroy the roadway and villas beyond … I am of opinion that the defendant, who is assignee of the lessee, is bound to contribute on two grounds: 1st, that the obligation to contribute is not a mere collateral agreement, that it is a covenant which runs with the land; 2nd, on the point secondly, that if the agreement or obligation is not one that can be held, strictly speaking, to run with the land, it is at least a covenant incident to and relating to the tenancy, to the subject-matter demised, and being so binds the
assignee under the provisions of the 12th section of the Landlord and Tenant (Ireland) Act of 1860.
Firstly, then, does the covenant in question run with the land, and bind an assignee? The word “assigns” is used in the covenant, and what is provided for is for the benefit, protection, and indeed I might say for the preservation of the subject-matter demised during t e continuance of the tenancy. Now it is well settled thata covenant to do something on part of the land “the subject matter demised” runs with the land, though assigns are not specifically
named, anda covenant to do something which is intended to become parcel of the land runs with the land if the word “assigns” is used.
But the cases have gone further. It has been held that though the thing to be done is not upon parcel, nor intended to become parcel, of the subject matter demised, yet if the thing to be done is clearly for the benefit, support, and maintenance of the subject-matter demised, the obligation to do it runs with the land … A covenant to repair a sea-wall which so closely affected the quality, value, identity, and even the existence of the subject-matter demised would plainly run with the land; but the question here which was so much pressed by Mr. Harrison in his able argument is more difficult, much more difficult: it is this: Is the obligation created by the deed to contributea proportionate sum an obligation which runs with the land?
It was contemplated that the lessor’s was to be the hand that was to do the entire work “the whole work necessary for the repair of the sea-wall throughout its entire length. Does the obligation on the part of the lessee to pay to the lessora proportionate sum of this entire liability amount to an obligation running with the land? Certainly there is no case precisely in point; but I think that, having regard to the object contemplated and provided for,
the obligation comes within the class of obligations which run with land. It most intimately touches and concerns the land.
A sea-wall is obviously necessary for the protection, indeed for the preservation, of the subject-matter demised. It is manifestly for the interest of the lessee or assignee “for the interest of the person for the time being in possession as lessee or assignee” that the sea-wall should be repaired; and though the instrument of demise contemplates that, in the first instance at least, the hand to make the repair is the hand of the lessor, yet he works for
the common benefit of himself and the lessee in a matter that touches and concerns the land …
But now I come to the 12th section of the Landlord and Tenant Act of 1860, and here arises a question of very great general importance … The clauses of that Act to which attention has been directed appear to me to be perfectly clear on the subject … Now what is the interpretation clause with regard to the word ‘landlord’. It is to include the person for the time being entitled in possession to the estate or interest of the original landlord under any lease or other contract of tenancy, whether the interest of such landlord shall have been acquired by lawful assignment, devise, bequest, or operation of law, and whether he has a reversion or not … Thus the 12th section provides that every landlord of any lands holden under any lease or other contract of tenancy shall have the same action and remedy against the tenant and the assignee of his estate or interest, or their respective heirs, executors, or administrators, in respect of the agreements contained or implied in such lease or contract as the original landlord might have had against the original tenant or his heir or personal representative respectively …
The Landlord and Tenant Act of 1860 has reference to “land” and contracts in reference to land, and the contract under consideration is calculated to affect the subject-matter of demise. The relation of landlord and tenant does not, as it did, rest upon tenure; it now rests upon privity of contract, and if the relation of landlord and tenant rests upon privity of contract, why should not an assignee be bound by an instrument in which the word “assigns” is used, when he takes under that instrument, and must be presumed to have known its contents? Is the landlord to do all the work which may be really necessary for the preservation of the subject-matter demised and is the assignee, though specifically named, and enjoying the benefit that has accrued to the lands he occupies by work done in his time, to bear no part of the burthen?
The defendant has entered on the subject-matter of the tenancy under an instrument of contract which uses the word “assigns,” and now endeavours to renounce the contractual obligations which relate to the subject-matter of the contract. This, in my opinion, he cannot do.
Perfect Pies Ltd v Chupn Ltd
[2015] IEHC 692
HAUGHTON J …
The Test of Unreasonableness
Although the law in the UK has changed since 1988 1 and must be approached with some caution, the parties did not disagree that the general principles to be applied in determining unreasonableness are laid down in the current
edition of Woodfall’s Law of Landlord and Tenant, para. 11.140, which states as follows:
• The purpose ofa covenant against assignment without the consent of the landlord, such consent not to be unreasonably withheld, is to protect the
landlord from having his premises used or occupied in an undesirable way, or by an undesirable tenant or assignee;
• Asa corollary to the first proposition, a landlord is not entitled to refuse his consent to an assignment on grounds which have nothing whatever to do
with the relationship of landlord and tenant in regard to the subject matter of the lease;
• The onus of proving that consent has been unreasonably withheld is on the tenant;
• It is not necessary for the landlord to prove that the conclusions which led him to refuse to consent were justified, if they were conclusions which might be reached by a reasonable man in the circumstances;
• It may be reasonable for the landlord to refuse his consent to an assignment on the ground of the purpose to which the proposed assignee intends to use the premises, even though that purpose is not forbidden by the lease;
• While a landlord need usually only consider his own interests there may be cases where there is such a disproportion between the benefit to the landlord and the detriment to the tenant if the landlord withholds his consent to an assignment, that it is unreasonable for the landlord to refuse consent;
• Subject to the proposition set out above, it is, in each case, a question of fact, depending on the circumstances, whether the landlord’s consent to an assignment is being unreasonably withheld.
In addition, the landlord may state the grounds for refusal to the Court even if no reasons had previously been given: Rice v. Dublin Corporation [1947]
I.R. 425, a further authority for this proposition is Irish Glass Bottle Co. Ltd. v. Dublin Port Co. (2005] IEHC 89. Further, if a landlord gives an invalid reason for refusing, he can subsequently amend his hand by giving a valid reason: Boland v. Dublin Corporation (1946] I.R. 88, at 103-104. The essence of the test is that the onus is on the tenant to show that no reasonable landlord would
have refused consent in the circumstances as the landlord apprehended them to be. A landlord does not need to justify the conclusions that led it to refuse consent. Moreover, the landlord is entitled to rely upon the advice of appropriate qualified professional/experts provided that the advice given is reasonable: Blockbuster Entertainment Ltd. v. Leakcliff Properties Ltd. [1997] 1 EGLR 28.
There was no disagreement between counsel that the date on which the reasonableness or otherwise of the landlord’s withholding consent falls to be considered is the date/time at which these proceedings were initiated …
As to breach of covenant on the part of the outgoing tenant, refusing consent on this ground depends upon the seriousness of the breach, and on whether the landlord’s position is prejudiced by the assignment. In Cosh v. Fraser (1964] 108 SJ 116 it was held unreasonable to refuse consent on the basis of breaches of covenant not to make alterations in the premises where the breaches were easily remediable at the end of the term. In Meagher v. Luke J. Healy Pharmacy Ltd. [2005] IEHC 120, Murphy J. held that it was
unreasonable for a landlord to refuse consent on the basis of dilapidations, which the proposed assignee was agreeable to remedy. However, the landlord is entitled to be reasonably satisfied that the proposed assignee will remedy any breaches of covenant to repair that are anything more than minimal: Goldstein v. Sanders [1915] 1 Ch 549. Furthermore, it may be reasonable for a landlord to demand that the assignee and its guarantor covenant to a strict timetable for repairs and to supply a performance bond or deposit: see Orlando Investments v. Grosvenor Estate Belgravia [1989] 2 EGLR 74.
Undoubtedly, the financial position of the proposed assignee is something that may be taken into account by a landlord in considering or refusing consent. As stated by Charleton J, in Cregan and Gray v. Taviri Ltd. (2008] IEHC 159:
“… Consent to assignment of a lease would be unreasonably withheld where the landlord will be receiving from the new assignees the same benefit, in terms financial reward and care of the premises, as from his or her current tenants”.
In Kened Ltd. v. Connie Investments Ltd. [1997] 1 EGLR 21, a landlord company objected to the proposed assignee of a lease for a hotel on the grounds that they were not being offered the guarantee for the remainder of the lease of a surety with adequate assets in the country visibly being of sufficient financial status and standing. The Court of Appeal (Millet L.J.) held that the test to be applied was an objective one, i.e. whether no reasonable landlord would have withheld consent for the reasons stated by the landlord; the Court was not entitled to substitute its own view for that of the landlord, whose only legitimate concern, in relation to the financial status of the proposed assignee, was their ability to pay the rent due under the lease. Millett L.J. stated that “an acceptable replacement surety” means a replacement surety which is objectively suitable for acceptance by a reasonable landlord.
Landlords are not entitled to seEjk security beyond what a reasonable landlord in their position would require. Thus in Re: Greater London Properties’ Leases [1959] 1 WLR 503, involving an·assignment to a subsidiary, the landlord was held to have unreasonably withheld consent where it was refused unless the parent company guaranteed performance of the subsidiary’s obligations
As to financial standing the defendant also relied on the following passage from Woodfall, at para. 11.143:
“A reasonable landlord is concerned with the tenant’s ability to meet the obligations under the lease as those obligations fall due. Accordingly, where the assignee’s references cast doubt on his ability to pay the rent and perform the covenants, the landlord will normally be entitled to withhold consent … Where the proposed assignee offers guarantors to guarantee performance of his obligations, the landlord must have regard to the financial position of the guarantors as well as that of the assignee. If, however, the financial situation of the assignee and guarantor, taken together, is such that the landlord cannot be satisfied that the rent will be paid and the obligations performed, the landlord will be reasonable in refusing consent. In addition, it has been held that if there is grave doubt about the ability of the assignee to pay the rent, the offer of a guarantor will not necessarily cure the problem since the offer of a guarantor may not be a satisfactory substitute for a satisfactory and responsible tenant.”
However, in assessing reasonableness it is clear that the Courts will not permit a landlord to use the opportunity of a request for consent to assignment to secure a collateral advantage or benefit over and above what the existing lease offers.
Of particular relevance to this case, because it is at the heart of the plaintiffs’ contentions, is that a landlord is not entitled to use the opportunity of an application for consent to assignment to pursue any “ulterior motives”. This principle was affirmed by Clarke J. in the context of an application for consent to change of use in Dunnes Stores (//ac Centre) Ltd. v. Irish Life Assurance Pie. [2008] IEHC 114. Dunnes Stores was the lessee undera long lease and desired change of user for part of a unit in the llac Centre which they planned to use asa high-quality food hall. All parties agreed that sucha change was inconsistent with the pre-existing leasehold clause as to user and that the consent of the landlord to the proposed change of user was required.
Dunnes Stores claimed that the landlord had unreasonably withheld
consent of the application for change of user contrary to s. 67 of the Landlord and Tenant (Amendment) Act 1980, a sister section to s. 66 quoted above, which provides that a landlord may not unreasonably withhold consent toa change of user. The landlord in the case had refused consent on “good estate management” grounds but had not elaborated on those grounds either in the original refusal of consent or in response to subsequent request for clarification from Dunnes Stores. In the course of exchanging documents relating to the litigation, the respondent landlord expanded on the refusal as follows:
“The exact basis of the defendants (sic) plea is the defendants (sic) opinion that the plaintiff’s proposed use would not be consistent with the defendants’ vision and image for that part of the !lac Shopping Centre, namely as a primary retail fashion area”.
Dunnes Stores challenged the refusal on three grounds:
1. That this was not the real reason for the refusal, rather the landlord was attempting to use this situation to place pressure on Dunnes Stores to give up possession of this unit in the llac Centre (which was one of three held by
the company);
2. That the reason given was not the bona fide reason for refusal; and
3. Even if this where the bona fide reason for the refusal it was incompatible with the change of user clause in the lease.
Clarke J. held that it was well established that landlords are not entitled to use the opportunity of applications for consent to pursue any “ulterior motives”; rather, consent can reasonably be refused only for purposes reasonably contemplated by the lease itself. At para. 6.5 Clarke J. summarised this
principle thus:
“[W]hat is spoken of in the authorities as an “ulterior motive” does not necessarily (or indeed frequently) refer to a motive which might be inappropriate in itself. There might well be very good and sensible commercial reasons for the landlord seeking to achieve the end concerned. However, the landlord is not free to act without regard to his obligations under the lease which are already in being. However sensible, from the landlord’s point of view, a particular position may be, it cannot amount to a proper reason for refusing a consent to change of use or assignment unless It Is a reason contemplated by the lease.”
On the basis of the facts presented to the Court Clarke J. held that he was satisfied that at least part of the motivation for the refusal of consent was an attempt to exert some kind of leverage on Dunnes Stores to give up the unit, this being further reinforced by the fact that the second defendant (co landlord with the first defendant) had been holding negotiations with Dunnes Stores while the decision on consent was pending about Dunnes Stores giving up possession of the unit. As this was an improper purpose in refusing consent it caused the refusal to be unreasonable. As Clarke J. stated at para. 6.3:
“[the landlord] is obliged to act reasonably in respect of an application for a change of use or assignment. He is not entitled to use such an application to obtain leverage in a strategy to regain possession of the property, even though he would be perfectly entitled to pursue any legitimate negotiation strategy to seek to achieve the same end. The reason why he cannot do this is that he is already bound by covenant only to refuse consent where it is reasonable so to do. The reason for his refusal must be reasonable, independent of his strategy to regain the property.”
In coming to this conclusion Clarke J. relied inter alia on the decision of Peter Smith J. in Design Progression Ltd. v. Thurloe Properties Ltd. [2005] 1 WLR 1 where the Court was satisfied on the evidence that a landlord’s refusal of consent to an assignment was based not on a bona fide reason but was designed for the purpose of getting back possession of the property concerned and, in effect, motivateq by a desire to obtain the commercial benefit of the value of the lease for itself … Accordingly, one of the Court’s tasks in this case is to assess on the evidence what the true motivation of the defendant was in withholding consent to assignment.
Like It Love It Productions v Dun Laoghaire/Rathdown County Council
[2008] IEHC 26
MURPHY J:
By Landlord and Tenant Civil Bill dated 22nd May, 2007 the appellant gave notice of an application for a new tenancy of the premises known as Blackrock Town Hall (excluding the library and rates office), relying on evidence relating to the premises being a tenement held on a weekly tenancy from 26th January, 1998, varied by subsequent agreement in writing. The application was refused by the Circuit Court and comes by way of appeal to this Court of the whole of the judgment of that court, of 2nd July, 1997.The respondent claimed that the tenancy had terminated on 31st August, 2006 by means of a notice in writing dated 23rd June, 2006. The appellant claimed that that notice was not a valid notice to quit.
In the event that the notice in writing was a valid notice to quit and that the tenancy determined on 31st August, the appellant claimed a new tenancy pursuant to Part II of the Landlord and Tenant (Amendment) Act, 1980. As, in the whole of the five years preceding that date, the premises was bona fide used by the appellant as tenant for the time being wholly for the purposes of carrying on a business. On 30th August, 2006 the appellant… duly served on the respondent a notice of intention to claim the relief sought, and claimed a new tenancy and compensation for improvements and/or compensation for disturbance. The parties failed to agree on the terms of a new tenancy.
By defence and counterclaim delivered 18th June, 2007 the respondent denied the plaintiff’s entitlement. The agreement of 26th January, 1998, extended by letter of 22nd July, 1998 was for a temporary convenience letting of the premises for the purposes of s. 75(4) of the Local Government (Planning and Development) Act, 1963. Accordingly, the said agreement is excluded from the provisions of the Landlord and Tenant (Amendment) Act, 1980.
Moreover, in the alternative the respondent requires vacant possession thereof for the purpose of carrying out a scheme of development which includes the said premises and in respect of which planning permission exists. Accordingly, the appellant is not entitled to a new tenancy.
Furthermore, the creation of a new tenancy would not be consistent with good estate management. A notice to quit is not required in respect of the temporary agreement letting. The appellant is estopped and precluded from saying that a notice in writing dated 23rd June, 2006 is not a valid notice of termination. The appellant was at all material times fully aware of the nature of the temporary convenience letting as entitlement to occupy the premises. It was denied it made improvements or was entitled to a new tenancy or to compensation for improvements or compensation for disturbance.
By way of counterclaim the respondent sought a declaration that the appellant was not entitled to a new tenancy in the premises orto compensation for improvements or compensation for disturbance under the provisions of the 1980 Act. The temporary convenience was the letting of the premises for
such period until the respondent Council required possession of the premises for the purposes of its statutory powers, functions and duties and that the grounds thereof were stated in the agreement of 26th January, 1998. The Vocational Education Committee of the Council had obtained permission on 18th December, 2003 for the refurbishment, alterations and extension of the premises …
The plaintiff/appellant, having appealed the order of the Circuit Court, submitted that the question as to whether the letting under which the premises was held as a temporary convenience letting was a matter to be determined under s. 5(1)(a)(iv) of the 1980 Act which states:
“(iv) Such contract or tenancy is not a letting which is made and expressed to be made for the temporary convenience of the lessor or lessee and, (if made after the passing of the Act of 1931) stating the nature of the temporary convenience … ”
Such temporary convenience must be stated in the agreement and must actually be made for a temporary convanience … The plaintiff says that the temporary convenience was not identified …
The issue in this appeal involves a determination of a net point of law as to whether the premises in question constitutes a tenement within the meaning of s. 5 of the Landlord and Tenant (Amendment) Act, 1980 …
The agreement of 26th January, 1998seems to the court to be unambiguous.
It recites: ·
“The Council is prepared to extend your Temporary Convenience Letting of Blackrock Town Hall on a month to month basis with it being renewed each month.”
It seems to me that the unambiguous intention of the parties may be gleaned from the agreement (including that letter) ultimately concluded by them the
premises are not a tenement within the meaning of s. 5 of the Landlord and Tenant (Amendment) Act, 1980.
In the circumstances the court affirms the decision of the Circuit Court
dated 2nd July, 2007.
Cosmoline Trading Ltd v Burke & Son Ltd
[2006] IEHC 38
FINNEGAN P:
… In its Counterclaim the Defendants seek a declaration that the Plaintiff
surrendered its interest in the old AT. premises demised by the lease. Deasy’s Act section7 provides … It is not alleged that the Plaintiff executeda deed or signeda note in writing. It therefore remains only to ascertain if there was a surrender by act and operation of law. In Lynch v Lynch (1843)6 IR.L.R 131
Brady C.B. said –
“A surrender by act and operation of law I think may properly be stated to bea surrender effected by the construction put by the courts on the acts of the parties, in order to give to those acts the effect substantially intended by them; and when the courts see that the acts of the parties cannot have any operation, except by holding that a surrender has taken place, they hold it to have taken place accordingly.”
An example of surrender by act and operation of law is what transpired in relation to several other premises comprised in the lease- the vacation of the premises and the handing over of keys. Again should the tenant abandon the premises and the landlord resume possession this also constitutes sucha surrender. I am satisfied in construing the acts of the parties here that insofar as the Plaintiff removed from the entire of its take under the lease to the rear of the premises and later removed from the rear of the premises to the Bontex premises there was no intention by it to surrender its lease. In each of these cases the Defendants did not at the time understand that it was the Plaintiff’s intention to surrender its lease.
Bank of Ireland v Lady Lisa Ireland Ltd
[1992] 1 I.R. 404
O’HANLON J
The plaintiff is the landlord of business premises at No 44 Henry Street, Dublin 1, which were demised to the defendant (then named Poltobe Services Limited) for a term of 35 years from the 14th November, 1986.
The plaintiff contends that the defendant has been very remiss in payment of the rent reserved by the lease, and has consistently been late in making payment of the quarterly instalments of rent, so that proceedings have had to be instituted in times past on a number of occasions to compel payment of the amounts due.
Ultimately, the plaintiff grew tired of allowing time, and causeda notice of
re-entry for non-payment of rent to be served on the defendant on the 12th December, 1991. It was headed “Notice of Re-Entry and Forfeiture”; it recited that the quarter’s rent due on the 1st October, 1991, had not been paid, and
it concluded:-
AND NOW TAKE NOTICE that pursuant to the terms ofz the said lease and the proviso for re-entry therein contained, as agent for the lessor we give notice that the lessor hereby exercises its right to determine the lease for failure to pay the said rent and requires you to yield up possession of the said premises this 11th day of December, 1991.
The notice was signed by the solicitors for the plaintiff.
The rent was payable quarterly in advance. I understand that the arrears of rent up to the date of the service of the notice of re-entry have since been paid up and accepted by the plaintiff, and that the balance of the quarterly rent for the quarter in question has been tendered and accepted by the plaintiff as mesne rates. Nevertheless, the plaintiff has elected to continue with the proceedings for possession commenced by summary summons issued on the 19th December, 1990, in accordance with O 1, r 3 of the Rules ofthe Superior Courts.
While the facts of the case, as alleged by the plaintiff, are not in dispute, the defendant contends that the procedure adopted by the plaintiff was ineffectual to achieve a re-entry on the part of the landlord, in accordance with the terms of the lease …
I have considered the helpful submissions of counsel on both sides of the case and I have come to the conclusion that I should hold in favour of the defendant on both issues of law which arise for consideration.
Wherea landlord proposes to forfeit a lease in reliance ona proviso in the lease giving a right of re-entry for non-payment of rent or breach of other covenant in the lease, it has been held that the “re-entry” involved may only be effected in one of two ways either by physical re-entry, or by the issue and service of proceedings for recovery of possession of the premises.
In Serjeant v Nash, Field & Co [1903] 2 KB 304, Collins MR observed as follows at pp 310-311:
“There is a final determination of a tenancy under a lease when the lessor, by some final and positive act which cannot be retracted, treats a breach of covenant by the lessee as constituting a forfeiture … only question is whether the lessor had availed herself of the breach of covenant in a final manner. I think that she had done so, for, except by taking physical possession of the premises, she had done the only thing that she could do to indicate her intention to put an end to the lease … [It] is clear that the writ in the action to recover possession was a conclusive election to treat the act of the lessee … as creating a forfeiture.”
In the present case it was submitted that the notice served on behalf of the lessor was a “final and positive act treating a breach of covenant by the lessee as constituting a forfeiture” within the meaning of the expression as used by Collins MR in that judgment, but this contention is inconsistent with the decision of Warrington J in Moore y Ullcoats Mining Co Ltd [1908] 1 Ch 575,
where notice in writing had been given purporting to determine the lease, and a further notice was served demanding possession of the mines.
Warrington J said at pp 587-588:
“Then the plaintiffs contend that if the writ was not an unequivocal demand there was a previous expression of their election contained in the two notices of April 29 and May 3, to which I have already referred. I am of opinion upon the authorities … that where the condition in the lease is that the landlord may re-enter he must actually, re-enter, or he must do that which is in law equivalent to re-entry, namely, commence an action for the purpose of obtaining possession.”
The statement of the law in modern times is repeated in similar terms in Halsbury, Laws of England, 4th ed, Vol 27, paragraph 428:
“The terms of a proviso for re-entry require that if the landlord elects to determine the lease for a forfeiture he must do so by re-entry, which the landlord may effect by physically entering upon the premises with the intention of determining the tenancy or by the issue and service of proceedings for the recovery of possession of the premises … ”
I conclude that the notice served on the lessee in the present case was not an effective exercise of the power of re-entry for non-payment of rent referred to in the lease … I have to dismiss the present claim of the plaintiff.
Foley v Mangan
[2009] IEHC 404
LAFFOY J:
… forfeiture for non-payment of rent is expressly excluded from the operation of s. 14 of the Act of 1881 … As is pointed out in Wylie on Landlord and Tenant Law (2nd Ed.) at para. 24.09, at common law the rule was that a landlord had to make a formal demand for the rent before he could invoke a right of re entry. However, this was usually dispensed with, as a matter of contract, by an express provision in the re-entry clause – by words such as “whether formally demanded or not”. As will be clear from clause 10 of the lease, the relevant portion of which I have quoted earlier, it contained no such express provision which would have excluded the necessity for a formal demand. Not only was there no formal demand by the plaintiffs on the defendant, but at no stage, either before these proceedings were initiated or in the course of the proceedings, were the alleged arrears of rent for the second and subsequent years of the term at any time quantified in money terms by the plaintiffs … Accordingly, the plaintiffs’ claim that they have forfeited the lease for non payment of rent fails.
. having found that the plaintiffs are entitled to forfeit the lease for breach of the covenant by the defendant in clause 7 of the lease, such entitlement as the defendant has to seek relief against forfeiture is a statutory entitlement under s. 14(2) of the Act of 1881. That sub-section, which entitles a lessee to apply to Court for relief against forfeiture where the lessor is seeking to enforce his right of re-entry or forfeiture by action or otherwise, gives the Court a broad discretion when dealing with that application. The Court may grant or refuse relief as it thinks fit “having regard to the proceedings and the conduct of the parties under the foregoing provisions of this section, and to all other circumstances”. Further, the Court may grant relief “on such terms, if any, as to costs, expenses, damages, compensation, penalty or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court, in the circumstances of each case, thinks fit”. It is suggested in Wylie … that, although the relief is granted under statutory powers, it seems clear from the wording of the sub-section that the jurisdiction is discretionary and is to be exercised largely on the same principles as the general equitable jurisdiction to afford relief which may be invoked in cases of forfeiture for non payment of rent …
More recently in the Campus and Stadium Ireland case Gilligan J. considered the nature of the discretion in the context of an occupation lease of the National Aquatic Centre at Abbotstown, County Dublin. In his judgment, Gilligan J., having stated that from his perusal of the authorities he was of the view that the Courts in general strive not to place rules or restrictions on the exercise of judicial discretion in relation to relief against forfeiture, quoted from the judgment of Earl Loreburn LC. in Hyman & Anor. v. Rose (1912] AC 623 (at p. 630) in which it was stated appropos of relief under s. 14(2):
“I desire in the first instance to point that the discretion given by the section is very wide. The Court is to consider all the circumstances and the conduct of the parties. Now it seems to me that when the Act is so express to provide a wide discretion, meaning, no doubt, to prevent one man from forfeiting what in fair dealing belongs to someone else, by taking advantage of a breach from which he is not commensurately and irreparably damaged, it is not advisable to lay down any rigid rules for guiding that discretion.”
Gilligan J. set out his approach to dealing with the issue before him as follows:
“I take the overall view that in order to exercise my discretion fairly, I must take into account the condu/::t of the parties, the wilfulness of any breach by the tenant, the general circumstances particular to the issue, the nature of the commercial transaction the subject matter of the lease, whether the essentials of the bargain can be secured, the value of the property, the extent of equality between the parties, the future prospects of their relationship, the fact that even in cases of wilful breaches it is not necessary to find an exceptio’nal case before granting relief against
forfeiture and then apply general equitable principles in reaching a conclusion.”
… The lease at issue in the Campus and Stadium Ireland case wasa lease of a major national sports facility, which had been sponsored by the State. While a lease ofa farm and farm buildings in North County Dublin on its own might be regarded as in a different category, nonetheless, the position here is that
the lease is only part of the composite transaction which, in reality, must be considered to be a major commercial transaction …
A relevant issue in considering how the Court’s discretion should be granted is whether, as the defendant contended, the plaintiffs in seeking to forfeit the lease were not motivated by any bona fide desire to ensure compliance with the covenants in the lease, but sought to contrive a forfeiture of the lease in the hope of forfeiting the defendant’s rights under the option agreement …
In assessing the conduct of the parties … I am satisfied that they also had genuine concerns about the effects of the failure of the defendant to deal with slurry and waste in accordance with his obligations under the lease and in accordance with the law and about the implications of that failure for them …
I consider that the defendant took a cavalier attitude to his obligations, which cannot be ignored
“