Termination
Periodic Tenancies
Generally a periodic tenancy can be terminated by either landlord or tenant, by giving notice of termination to the other. In the case of a weekly tenant, the notice to quit period is generally a week. In the case of a monthly tenant, a month. In the case of a yearly tenancy, common law required a six months’ notice.
In the case of agricultural lettings, one years’ notice is required in the absence of an agreement to the contrary.
In each case, the notice must terminate on a so-called gale day. This is the last day of the period and is generally the day on which, or before, the rent is payable.
.The 1992 Housing (Miscellaneous Provisions) Act required one months’ notice for residential tenancies. This has been superseded by the Residential Tenancies Act.A Residential tenancy may not be terminated by any means other than those prescribed by the 2004 legislations
Re-entry for Breach
The lease may contain or provide for re-entry for breach of condition. This is what is commonly referred to as the forfeiture clause termination. Breach gives the landlord the option to seek termination of the lease.
A right to re-entry may be exercised by entry or by legal action. Legal action is necessary unless a peaceful re-entry is possible. Peaceable re-entry is permitted in the case of residential property. The Constitutional right to the inviolability of the dwellinghouse arises.
In order to give effect to a right of entry, there must be an actual re-entry or steps setting in motion an action for possession.
Relief Against Forfeiture
The Courts may grant relief against forfeiture. The Courts will lean towards awarding compensation in lieu of giving landlords a windfall by retaking the entire premises.
Where a right of re-entry arises for a breach of condition for non-payment of rent, there is an equitable jurisdiction to grant relief against forfeiture.
In the case of breach for anything other than rent, there is a requirement to serve notice under the Conveyancing Act specifying the breach and requiring remedy if possible or monetary compensation. The tenant must be given reasonable time to rectify the alleged breach before a step is taken to seek forfeiture.
The Conveyancing Act does not allow for relief against forfeiture on the basis of non-payment of rent. Courts of equity grant relief against forfeiture even where payment of rent was involved.
Where a lease is forfeited, sub-lessees have a right to apply to the court for relief against forfeiture. The tenant himself may seek relief against forfeiture under the Conveyancing Act for breach of re-entry or forfeiture for breach of covenant. The court has a discretion. It may refuse relief if it decides having regard to the conduct of the parties and all the circumstances.
Exercise of Discretion
It may grant relief on such terms as to cost, expenses, damages, compensation and penalty, including the grant of injunction to restrain breach in the future as the court in the circumstances sees fit.
The relief is discretionary and is a matter for the court to consider in the circumstances. The court will take account of the conduct of the parties, the seriousness of the breach, the circumstances, nature of the transaction, the subject matter of lease, value of the property, equality of bargaining, future prospects of the relationship.
General equitable considerations apply. Relief may be granted even though the breach is willful. The courts will be more rigorous in the case of a commercial relationship whether there is greater equality between the parties.
Terminating Leases and Tenancies
The rules in relation to the termination of tenancies and leases are strict and may appear overly technical. There will often be an obligation to give notice to the tenant prior to termination, depending on the nature of the lease or tenancy and the grounds of termination.
No notice is usually required when the term of the lease expires. In the case of a breach of a lease other than for non-payment of rent, an advance notice must be given, granting the opportunity to rectify the breach.
Statutory Renewal Rights
There are various scenarios in which a landlord may be unable to recover possession at the expiry or earlier termination of a tenancy. There may be a statutory rights of renewal. Where such rights exist, then the tenant may be entitled to retain possession (subject to complying with conditions), notwithstanding the termination of the tenancy.
Where, however, a tenant is in serious breach of lease, particularly by way of rental arrears, the right to a new tenancy will not be available or will be available at the discretion of the court, and only on payment of the rental shortfall.
In the case of long leases with rights to acquire the fee simple or an extended lease, the rights apply even where there are arrears of rent and substantial breaches of the lease. In the case of a long lease of a dwelling house which qualifies to acquire the fee simple, ejectment may not be brought for non-payment of rent.
Taking Possession
A peaceful taking of possession may be possible in some cases. However, the landlord must be confident that the tenancy or lease has been validly terminated and that the possession may be taken peaceably.
If possession of a leased property is not surrendered by the tenant on expiry of the term or its earlier termination, then the landlord may require a court order for possession.