A re-entry that involves force, by virtue of numbers or the physical breaking of the doors, locks et cetera, may be an unlawful forcible entry. Some forcible entries may constitute a criminal offence.
Considerations of the Constitutional protection of the inviolability of the dwelling-house arise in residential cases. Almost all such cases are subject to the mandatory terms of the Residential Tenancies Act.
In non-residential cases, a court order will be required, unless a peaceable repossession is a practical option. The courts have leaned increasingly against self-help remedies.
An order for ejectment is a court order ordering a tenant to give vacant possession of the property. A court order also has the benefit of declaring whether the lease has been validly terminated. Indeed, even if the lease has been terminated for breach, the tenant may be up able to apply to the court for relief against the forfeiture, on such terms as the court declares.
An action for ejectment is taken against persons in possession of the property. There are a number of different types of ejectment. An action of a trespass is not appropriate because the former has entered with consent. Court ejectment procedures do not apply to residential tenancies. There is an entirely standalone scheme for obtaining possession through the Residential Tenancies Board.
Deasy’s Act provides a remedy of ejectment for the landlord. Ejectment may be brought after one year rent is in arrears, even if the tenancy does not include a clause for forfeiture. It’s sufficient that there is a year of arrears.
Ejectment is no longer possible in relation to dwelling houses held under a ground rent type lease.
Residential Tenancies have their own mandatory provisions for termination and the grant of possession.
In the case of a dwelling house, there is a provision by which the court may adjourn an application to give the spouse, the non-tenant spouse, the opportunity to rectify and pay the rent.
Ejectment Civil Bills
An ejectment civil bill can be taken in the Circuit Court where the rateable valuation of land is less than €3,000,000. It is presumed that this is the case until the contrary is shown. Most properties will qualify.
An ejectment on the title is taken where the person in occupation of the property has no title as against the claimant, landlord. It may be used against a person with a defective title or generally where a person has a better title than the person in occupation so that its use is not limited to landlord and tenant cases. An ejectment for over-holding is brought where a tenancy ends by notice to quit or where the term of a lease expires. It need only be served on the persons in possession.
The ejectment civil bill must contain certain details including a description of the property. It must be served on every person in possession of the property or of its rent unless the court otherwise directs.
If no person is in possession, it may be sufficient to affix a copy to the door or other conspicuous parts of the premises. Where a tenancy has been terminated, the facts and means of termination must be specified.
Once ejectment proceedings have been served, an order may be sought for summary judgment, even where an appearance or defence is entered. Notice of the application must be served at least four days in advance on the persons in occupation/defendant and be supported by an affidavit confirming asserting that there is no defence and that the appearance is entered solely for delay.
Upon the hearing of the application, possession may be ordered unless the defendant satisfies the judge that he has a good defence. He may be obliged to pay into court, such sums as the judge may direct. This may include costs.
Where the Circuit Court jurisdiction is not available, ejectment proceedings may be brought in the High Court. An ejectment on the title is by way of a plenary (full) proceedings in the High Court. A defendant in possession need not prove his title unless he relies on an equitable estate or seeks an equitable remedy.
The proceedings are served on all persons in possession of the property and other persons concerned as well as a person in possession of the rent unless the Court otherwise directs. If no appearance is entered, judgment may be applied for in the Central Office or by application to Court.
An ejectment for overholding may be brought in the High Court against a tenant whose tenancy has terminated or by notice to quit. A procedure by way of summary summons is available. Once an appearance is entered, the matter may be brought before the Master of the High Court for liberty to enter final judgement. In uncontested cases, the Master may deal with the matter summarily. If it is contested, he may transfer it to the court list for the hearing.
Where the annual rent is less than €15,000, there is a District Court procedure for ejectment for overholding. This is initiated by way of a special form of civil process.
It must be served on every person in occupation of the premises at least 15 days before the sitting. It must describe the premises, give details of the nature of the tenancy and the facts and means of determination of the tenancy.
Ejectment Seeking Rent
There is a provision in the Landlord and Tenant Amendment Ireland Act 1860 which provides that where a tenant wilfully overholds after the end of his tenancy after a demand for possession in writing, may be ordered to pay double the rent for the period of over holding. The procedure is rarely used in modern times.
A claim for ejectment may include a claim for so-called mesne rates. Mesne rates are effectively compensation for the use of the land from the date from which the possession has been demanded until it is given. It is generally at the same rate as the pre-existing rent or at a fair rent.
There is a special form of ejectment proceeding for non-payment of rent. There must be at least one year’s rent in arrears. This may include where rent is payable for a future period, which is overdue. The period need not be an unbroken period.
Ejectment for non-payment of rent is primarily directed at the recovery of rent, rather than possession.
Ejectments Seeking Rent- Courts
The procedure is available in the High Court, Circuit Court and District Court. A landlord is entitled to arrears of rent up to the date of delivery of possession. He will generally be entitled to costs.
The District Court process applies to leases and tenancies with annual rent below €15,000
The Circuit Court procedure applies to property with a value over €3,000,000. It is broadly similar in procedure to an ejectment civil bill for overholding.
The High Court procedure is by summary summons. The details of the tenancy and the rent due can be proved by affidavit, where the defendant has not entered an appearance.
A stay of proceedings may be obtained by tendering the rent due and expenses incurred, within 10 days of service of the process. After that, the rent can be paid into court with an undertaking to pay costs, which will prevent the success of the proceedings. Where judgement is given against the defendant a stay of execution of the order may be given by tendering the rent due and expenses incurred, to the plaintiff court or sheriff.
The legislation allows the tenant to obtain an order restoring him to possession if he tenders arrears of rent plus costs within six months of execution. The court may give relief on such terms as it sees fit. The tenant may be restored to possession only if he accounts the landlord for the cost and rent. This only applies to this particular procedure and does not apply to ejectment on the title and ejectment for overholding.
District Court and Licence Agreement
There is a special form of District Court procedure to obtain possession from a licencee / caretaker. It is a summary method of obtaining possession where a caretaker overholds. A caretaker is a person put into possession by permission of the owner, other than as tenant. He is effectively a licencee.
A demand must be made for possession first. A prescribed civil process format is used. There is a similar summary form of possession application in the district court in relation to recovery of possession of Council tenancies.
Once proceedings are served, the district court has limited discretion to refuse possession. The court may stay or postpone possession if the tenant undertakes to give up peaceable possession within 14days and pay up arrears of rent.
Public Sector Materials; Statutes and Cases in italics are reproduced as public sector material. See the Legal Materials link in the footer.