Recovery of Rent
General
A landlord may seek to recover rent and leave the tenant undisturbed or may seek to recover rent and forfeit the lease.
Generally, the tenant for the time being is liable for the rent. Multiple tenants are usually jointly and severally liable, so that any one of them, can be sued for the whole. As between each other, they are liable proportionately and if one pays more, he is entitled to an adjustment as between each other.
In an action for recovery of rent, sums may also be sought for service charges, insurance contributions and equivalent financial sums. Rent remains due until the lease is forfeited by recovery of possession.
A squatter is not liable for rent unless he impliedly becomes a tenant. Where there is no tenancy (due to expiry or termination, mesne rates may be awarded by way of compensation for the use of land.
The Landlord and Tenant Act applies to tenancy agreements and leases. The landlord, for the time being, is entitled to sue for rent or for breach of covenant.
Third-Party Default
Where a head tenant is in default, the head landlord may serve a notice on the subtenant requiring him to pay the sub rent or that sub-tenant make such payment voluntarily. The receipt by the head landlord is a full discharge to the subtenant as against the head tenant.
If the mortgagee serves notice of its intention to enter into receipt of the rent or profits of the land, then the mortgagor’s power to recover rent is displaced. Similarly, if a receiver is appointed, the mortgagor’s rights as a landlord are displaced. See our section on mortgages and leases in our section on security.
A liquidator has a right to disclaim an onerous lease. In this case, the rent becomes an expense of the liquidation to be met out of the company’s assets to the extent available. Where he does disclaim, the landlord is entitled to claim rent for the period in which the property was retained by the liquidator for the benefit of the creditor.
Action for Rent
An action for rent may be taken in the District Court, Circuit Court or High Court depending on the level of arrears. The general levels for each court apply.
The fact that the landlord has obtained an order for possession in ejectment is s not a defence to the non-payment of rent. The personal action for rent is retained.
Tenant’s Claims
Generally, a tenant cannot defend an action for rent based on the landlord’s breach of the lease, even if the breach is serious. There are exceptions.
Most leases provide that the rent must be paid without deductions for set-off or a counterclaim. If the tenant has the right to deduction or set-off this may reduce the amount payable. There is support for the position that where the tenant expends money on repairs which are the responsibility of the landlord, a set-off might arise. It is not clear if this position is recognised in Ireland.
Repairs & Set-Off
The Landlord and Tenant (Amendment) Act provides that demands by a landlord against a tenant in respect of rent are subject to set-off in respect of sums due by the landlord to the tenant. This provision is much narrower than first appears. It is only applicable to an action for recovery of rent as such and is not available in ejectment proceedings. It can only apply to a liquidated claim and ascertained liability. The claim must be related to the relationship of landlord and tenant.
Under the 1980 Landlord and Tenant Act where the landlord refuses to execute repairs to a tenement (mainly building) which it is obliged to execute and has been called upon to do, the tenant may execute them at his own expense and set off the expenditure against subsequent rent until it is recouped. The landlord must receive evidence of the expenditure and must give a receipt for rent as if he had been paid this sum in money.
Time Limits
As with other claims for a debt, the Statute of Limitations applies a time limit on the recovery of arrears of rent. A six-year period applies in respect of most rental arrears.
The barring of arrears after six years does not affect the landlord’s title. Existing arrears within six years can be recovered. The landlord’s title may be only barred after 12 years’ adverse possession.
See, generally the section on the Statute of Limitations and adverse possession.
If the tenant acknowledges the obligation in writing or makes a payment in respect of rent due, the period begins to run from the date of acknowledgement or payment
No Rent / Mesne Rates
Where a tenant or other person occupies a land with the consent of the owner without any agreement as to rent, it will be generally implied term that a reasonable sum should be paid for the use and occupation of the land.
This is distinct from a mesne rates claim, which lies against the trespasser. This is a restitution right to the payment for the use and occupation of land. It is confirmed by Deasy’s Act which provides that every person entitled to land or who allows lands to be held or occupied by a person under an agreement not specifying the rent shall be entitled to recover a reasonable sum for the use and occupation of the premises
Scope of Distress
Distress is not available in relation to arrears of rent of a dwelling house. It may be available in respect of commercial premises. Certain aspects may be held unconstitutional.
Distress is the right at common law of a landlord to enter the demised premises and take goods in satisfaction of rent overdue.
At common law, even the goods of the stranger could be taken unless certain statutory protection exists. There are probably severe doubts as to the constitutionality of this provision.
Distress may be levied on goods at the property itself. However, if the tenant has fraudulently and clandestinely removed the goods from the premises in order to prevent distress, the landlord may distrain the removed goods wherever found within 20 days of the removal unless they have been sold to a bona fide purchaser who is not aware of the fraud in the meantime.
Exclusions
There have been various limitations on the right to distress by legislation over the last 170 years. Distress is not allowed for rent due for more than a year under Deasy’s Act (Landlord and Tenant Amendment Act). Where a company is being wound up or in bankruptcy, distress is prohibited after the date of adjudication. Distress is not available for arrears over six months old.
Common law excluded distress against certain categories of goods, including perishable goods, tenant’s fixtures, things in actual use, wild animals. If sufficient distress could be otherwise found, tools and implements of trade were exempted
Legislation has prohibited distress against particular categories of items, including railway, stock, gas company meters, electric supplier apparatus and equipment let on hire.
Wearing apparel, bedding and tools were exempted unless the tenancy had expired, the possession had been demanded and distress was made not earlier than the seventh day after demand. Growing crops could not be distrained.
Goods of third parties, including lodgers and subtenants, could be protected by serving notice on to landlord or making a declaration of interest in the goods, and in the case of subtenants and lodgers undertaking to pay their rent to the head tenant until the head rent is paid off. The exemption only applies to goods of the tenant itself, but not spouses and others.
Exercise of Right
There are technical limitations and procedural provisions applicable to the exercise of the remedy of distress.
Distress cannot be levied on Sundays or at night. It must be made during the continuance of the tenancy.
It must be levied by the landlord or his agent or a person acting on his behalf under a warrant of distress. Written details of the rent must be handed to the person in possession of the property or if no person is found affixed to a conspicuous part of the property.
Force may not be used to gain entry. A door may not be broken. Entry may be made by opening an unlocked door or turning a key left in the lock, or through an open window.
Originally the goods were impounded until the rent was paid. Livestock could be removed to a pound within the county. Distrained goods could be sold if not redeemed within eight days.
Thereafter a sale could be made to the highest bidder. The surplus belonged to the tenant. If a tenant commits a so-called pound breach, he is liable in action for damages.
Unlawful Distress
Where an illegal or an irregular distress is undertaken, the tenant may have legal action. Illegal distress would occur where there is no rent due or exempted goods are taken. The landlord is liable for damages for trespass and unlawful distress may be restrained by injunction.
The tenant may rescue the goods provided they have not been impounded.
Where distress is lawful, but if an irregularity occurs in the procedure, the tenant has a right to damages.
Deasy’s Act
Action for rent in arrear.
45. Every person entitled to any rent in arrear, whether in his own right or in right of his see, dignity, benefice, or corporation, or in right of his wife, or as executor or administrator of any party deceased, under any lease or other contract of tenancy, whether of freehold or for years or both, and whether the estate or interest in such lease or contract shall be continuing or not, shall be entitled to recover such arrear from the tenant of such lands at the time of the accruing of the said rent, or his exeutors or administrators, by an action in any of the Superior Courts of Law at Dublin, or, where the amount shall not exceed the sum of one hundred pounds, by civil bill action in the court of the chairman of the county or riding in which the lands or any part of them shall be situate.
Action for use and occupation.
46. Every person entitled to any lands, and who shall suffer the said lands to be holden or occupied by any person under an agreement not specifying or determining the amount of rent, shall be entitled to recover a reasonable satisfaction for the use and occupation of the said premises holden or occupied by the said person in an action in any of the Superior Courts of Law at Dublin, or, where the amount shall not exceed the sum of one hundred pounds, by civil bill action in the court of the chairman of the county in which the lands or any part of them shall be situate.
Receipts to specify gale, and, if not, to be deemed to apply to last gale.
47. Every receipt or acknowledgment for rent or for money paid on account thereof, and given on or after the first day of January one thousand eight hundred and sixty-one, shall specify the gale for or on account of which the same was accepted and paid; and in default thereof such money shall, in any action, suit, or proceeding whatsoever, be deemed to have been paid and accepted for and on account of the gale of rent which became due upon the gale day immediately preceding the date of such payment, and shall be primâ facie evidence that all previously accrued gales have been satisfied.
Set-off against rent.
48. All claims and demands by any landlord against his tenant in respect of rent shall be subject to deduction or set-off in respect of all just debts due by the landlord to the tenant.
[S. 49 rep. 56 & 57 Vict. c. 14. (S.L.R.)]
Provision for cases not coming within the provisions of clause 34.
50. In every case not coming within the provisions of clause thirty-four, when the tenancy determines, otherwise than by the act of the landlord, at any time before the day on which the rent would become payable, the landlord at the time of such determination (unless it is otherwise agreed) shall be entitled to a reasonable proportion of the rent according to the time that has elapsed from the commencement of the tenancy, or the last gale day, to the day of the determination of such tenancy, including such day.
No distress for more than one year’s rent.
51. From and after the commencement of this Act, it shall not be lawful for any landlord, or any one on his behalf, to take or seize any distress for rent which became due more than one year before the making of such distress.
Ejectment for year’s rent unpaid.
52. Whenever a year’s rent shall be in arrear in respect of lands held under any fee farm, grant, lease, or other contract of tenancy, or from year to year, and whether by writing or otherwise, it shall be lawful for the landlord immediately thereon, and before the expiration of the time, if any, limited for re-entry thereupon in any lease or agreement, to proceed by ejectment for the recovery of the possession of the said lands in any of the Superior Courts of Law at Dublin, or, where the rent shall not exceed one hundred pounds by the year, in the court of the chairman of the county in which the lands or any part thereof is situated; and the plaintiff’s right to sue as such landlord shall not be defeated by proof merely that the legal estate in the rent or lands is vested in any other person not a party to such suit or proceeding, but who would be a trustee for the plaintiff, provided that the plaintiff was at the time of the institution of such suit or other proceeding the person substantially and beneficially entitled to the said rent.
Proof of demand, &c. and of legal reversion unnecessary.
53. In any ejectment under this Act it shall not be necessary to allege or prove the making of any demand or re-entry, or the existence of any clause or condition of re-entry in the lease or other contract, or of any legal reversion expectant on the determination of the same, and subsisting in the landlord, provided a tenancy between the parties shall appear to exist, whether by original contract, or by lawful assignment, devise, bequest, or act and operation of law.
Form of civil bill for non-payment of rent as in sched. (A.)
54. [Provision as to form of civil bill of ejectment for non-payment of rent.] It shall be lawful for the chairman, on proof of the service of such civil bill in one manner herein-after directed, and that a sum equal to one full year’s rent, not exceeding the rate of one hundred pounds by the year after all just and fair allowances, was due when such proceeding by civil bill was commenced, and still remains due to the landlord, to decree the said landlord to be put into possession of the said premises, and to ascertain the amount of the rent then due.
Who to be served with summons and process in ejectment.
55. In any ejectment for nonpayment of rent brought by any landlord under this Act, it shall not be necessary to serve . . . with civil bill process any person other than the person or persons in the actual possession of the lands as tenant or under-tenant.
Service on persons in possession.
56. Service of the . . . civil bill process in ejectment for nonpayment of rent on any person in the actual possession as tenant or under-tenant of the premises sought to be recovered, or any part of them, shall be effected either by personal service of the . . . civil bill process on such tenant or under-tenant at any place in Ireland, or by leaving a copy thereof with the wife, child, father, mother, brother, or sister of the party, or with any servant or clerk of the said party, at his dwelling house or office or place of business (the person with whom such copy shall be left being of the age of sixteen years or upwards), or in such other manner as shall appear to the court to be sufficient.
Service where no person is in possession.
57. In case there shall be no person in the actual possession of the premises as tenant or under-tenant on whom service of such . . . civil bill process in ejectment can be effected, it shall be lawful instead thereof to affix a copy of such . . . civil bill process on some conspicuous part of the premises, and also on the usual place for affixing notices in the nearest market town to the said lands: Provided, however, that in such case, before any decree or judgment by default shall be given, the court shall be satisfied that there was no person in actual possession on whom other service might have been effected: Provided also, that in case of an ejectment for nonpayment of rent reserved upon any lease of tithes, tithe rentcharge, or other ecclesiastical dues, the court in which the ejectment is brought may order service to be made by posting the ejectment upon the church door of the parish or union of parishes wherein such tithe, tithe rentcharge, or ecclesiastical dues are payable, and, if there be no such church in the parish, or union of parishes, upon some public and conspicuous place in the said parish or union.
Judgment by default.
58. In any ejectment for nonpayment of rent brought in any of the Superior Courts of Law, when the tenant shall not take defence to the ejectment, the affidavit of the landlord, his agent, receiver, or clerk, stating the amount of rent due at the time of the bringing of the ejectment, over and above all just and fair allowances, shall be sufficient evidence of the amount due, and shall, when the same amounts to or exceeds one year’s rent, entitle the landlord to judgment for the possession of the premises; provided an affidavit of the service of the summons and plaint in such ejectment shall have been duly filed according to the practice of such Court.
Defence to civil bill.
59. Every defendant in a civil bill ejectment under this Act shall be entitled to every defence at the hearing of such civil bill which he might have had at law or in equity.
Civil bill process to state amount of rent claimed.
Stay of proceedings on payment or tender.
60. Every . . . civil bill process in ejectment in the court of the chairman, for nonpayment of rent, shall contain or have endorsed thereon a statement of the amount claimed to be due by the landlord for rent after all just and fair allowances up to the time of bringing of such ejectment and the times at which such rent accrued due, and that if the amouut thereof, together with a sum for costs, not exceeding . . . ten shillings, be paid to the plaintiff or his attorney or known agent or receiver within ten days from the service of such . . . process, all further proceedings will be stayed; and upon payment or tender within the time so mentioned of the sum so claimed, and costs, to the plaintiff or his attorney or known agent or receiver, all further proceedings in respect of the rent then claimed shall cease and be stayed accordingly.
Where amount is disputed,
lodgment may be made with clerk of the peace, &c.
61. It shall be lawful for any defendant in a civil bill ejectment for nonpayment of rent disputing the amount of rent claimed to be due, at any time not later than three days before the day on which he is required to appear, to deposit with the clerk of the peace of the county a sum of money for rent, together with the sum mentioned in said civil bill process for costs; for which deposit on payment of the fee of one shilling and sixpence, the clerk of the peace shall give the defendant a certificate of the lodgment and duplicate, which duplicate shall be delivered to or left at the abode of the plaintiff, his agent, receiver, or attorney in the cause, not later than the second day before the day on which the defendant is required to appear; and in case the said plaintiff, or his attorney in the cause, shall receive such deposit from the clerk of the peace (which the clerk of the peace is hereby required to pay over to the plaintiff or his attorney, on demand), such payment shall be in full discharge of the rent and costs claimed by the said civil bill; but in case the said plaintiff, after delivery of such certificate, shall not accept of the said deposit on or before the day next previous to the day on which the defendant is required to appear, exclusive of any Sunday, and it shall appear at the hearing of such civil bill that no greater sum was due for rent at the time of the service of such process than the sum so deposited as aforesaid, and that such duplicate was delivered as aforesaid, it shall be lawful for the chairman to dismiss the said civil bill, with costs of the proceedings subsequent to the delivery of the said duplicate, and the plaintiff shall be entitled to the amount so deposited, reduced by the amount of such costs; and if it shall appear that any greater sum was due than the sum deposited, it shall be lawful for the said chairman to ascertain the amount of rent actually due at the time of the service of the summons in ejectment, and the sum so deposited shall be returned to the defendant, unless the plaintiff shall elect to take the same in lieu of the possession, in which case the plaintiff shall be entitled to receive the same in payment of his rent, and to have a decree for his costs or for the balance of his rent and costs.
Lodgment in Court of rent, and undertaking to pay costs.
62. It shall be lawful for any defendant in any action of ejectment for nonpayment of rent in any of the Superior Courts of Law, at any time before judgment or service of a notice of trial, to pay into Court a sum of money for rent, with an undertaking to pay the costs then incurred when taxed and ascertained, and in case of nonpayment to suffer final judgment to be marked, or an attachment to be issued against him; and thereupon the plaintiff, if he shall not accept of the said sum in full discharge of the action, with costs to be taxed by the proper officer, may proceed in the said action at his peril; and if upon the trial of the issue it shall appear that no greater sum was due for rent at the time of the service of the summons in ejectment than the sum paid into Court, the verdict shall be entered for the defendant.
Tender before civil bill decree executed.
63. It shall be lawful for the defendant in any civil bill ejectment for nonpayment of rent or any other person having a specific interest in the lease or other contract of tenancy, at any time before the decree for possession shall have been executed, to pay to the plaintiff, or his executor or administrator, or agent or attorney, in the said civil bill, all rent and arrear due at the time of the service of the ejectment, together with the cost incurred, or a sum sufficient to cover such costs, or to tender the same, and, in case such tender shall be refused, to deposit the money with the clerk of the peace of the county, for which lodgment a certificate and duplicate shall be granted in manner aforesaid; and thereupon it shall be lawful for the chairman to order all further proceedings to be stayed and to cease, upon payment of such costs incurred up to the date of such tender as he shall deem reasonable; and the money so lodged with the clerk of the peace shall be paid over to the plaintiff, or his executor or administrator or attorney, on demand: Provided, that the decision of the chairman shall be subject to appeal in like manner as if it were a decree or dismiss on a civil bill ejectment for nonpayment of rent.
Tender before writ of habere executed.
64. It shall be lawful for the defendant in any ejectment for nonpayment of rent in any of the Superior Courts, or any other person having a specific interest in the lease or other contract of tenancy, at any time before the writ of habere facias possessionem shall be executed, to pay to the plaintiff, his executors or administrators, or his known agent or receiver, or to the attorney in the cause, all the rent and arrears due at the time of the service of the ejectment, together with the costs, or a sum sufficient to cover such costs, or to tender the same, and, in case such tender shall be refused, to lodge the money in Court; and thereupon it shall be lawful for the Court, or a judge thereof, to order all further proceedings to be stayed and to cease, upon payment of such costs incurred up to the date of such tender as the Court or a judge shall deem to be reasonable; and the money so lodged in Court shall be paid to the plaintiff, or his executor or administrator or attorney, on demand; and the defendant shall, notwithstanding any such payment, be at liberty to have the costs taxed and paid back, if disallowed, with the costs of the taxation, in case more than one sixth shall be disallowed.
Amount of rent to be stated on writ, &c.
Stay of execution on payment.
65. Upon every writ of habere facias possessionem and warrant under a decree for possession in any ejectment for nonpayment of rent, there shall be a statement of the amount of rent then due; and if at any time before execution executed the defendant shall pay to the sheriff the sum so marked for rent and costs, such sheriff shall stay such execution, and shall endorse on such writ, as a return thereto, the receipt of such rent and costs.
Remedy for rent not to be prejudiced by recovery of possession.
66. Every landlord recovering possession by such judgment or decree in any ejectment for nonpayment of rent shall have the same remedy for all arrears of rent to the time of the execution of such judgment or decree as such landlord might have had if possession had not been obtained under such judgment or decree.