Landlord & Tenant Law

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What is a lease?

Back 1

- Gives rights over a propert
- Landlord and Tenant Act, 1860 still main body of legislation although drafts have been made
- Relation between LL & T is governed by details of contract
- Payable by rent which is essential for their relationship to exist
- Subject to reversion, land goes back to LL once contract reverts

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Types of leases

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- Periodic tenancy, week to week, year to year, once notice provided, may end

- Lease for a certain term, tend to be business leases, decades long

- Reversionary lease, whether expressly stated or not will revert back to LL. Discretion to renew lease or lease to someone else. All leases tend to fall under this category.

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Formation of a lease

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- All leases over a year must be in writing as per s.4 Deasy' Act, 1860

- Assignment as per s.9, landlord cannot interfere with this right

- Sub-letting, business and residential tenancies, may sublease part of land. original LL and T still exist but creates new LL & T between sub-tenant and tenant

- Implication, s.5, LL & T relationship for a set period, at the end reversion should be alowed. Yet you decide not to, if landlord don't need property. If you hold for longer than a month and LL asks you to leave, he is allowed to assume new tenancy has been agreed.

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Rule in Walsh v Lonsdale

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Note drawn up, money exchange and T possessed property. Note not signed by LL, one term of lease one years lease to be paid in advance. LL sought to enforce. T said no relationship due to lack of signature so didn't meet requirement in Deasy's act. Over a 18 month period T paid in arrears. Equity prepared to treat as lease, as they had performed obligations. Court held that a lease would be recognized. Parties met part performance requirement. LL able to have rent in advance. Issue, is this as good as a lease? Equitable entity discretion of court who could enforce part performance. If any other legal interest over land, would override equitable interest

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Termination of a lease

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Forfeiture (Retaking of the land by the LL. Where tenant disclaimed LL right to land (AP), breach in condition of the lease, if the tenant has breached some leasehold covenant and this covenant expressly stated that LL could retake land (e.g. cannot conduct business on propety)
Merger (the T buys the land)
Surrender (Tenancy can be surrendered to LL in writing by T. Cannot quash LL right to rent)
Ejectment (where the T refuses to give up land, LL can get ejectment civivil bill, legal way of gaining ejectment. In BT, if time has gone over 1 y and a d, LL can get access to back payment of rent, LL can get bailiffs)

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Lease v License

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License (permission to do something which would otherwise be unlawful but doesn't give a property right but rather a personal right. Many LLs argue that what was agreed was simply a license which doesn't create relationship)

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Characteristics of a Lease

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If a person provides a licence to anotherindividual to do something on their land the courts have found this not to bedefinitive.

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Construction of the agreement

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Right to renew lease, were they of one mind?

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Gatien Motor Co v Continental Oil

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IE. Poperating car sell company in D’s premises Tenantamendment act, 1932, if tenant occupying premises under lease for 3years and 3 months, may renew the lease. Business equity. For D to avoid havingto renew lease, asked P to leave promises to avoid having to renew. Wouldhave been disruptive to P business. Therefore agreement entered for Pto be “caretaker” of premises instead for a period and won’t have to paid rent forthat period. Then new lease. Didn’t meet business equity requirements under actto gain the renewal of lease. SC said even if parties enters agreement, non-matterof its label, court can in some circumstances disregard the label. Partiesmay organise their affairs to avoid the renewal, Held license.

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Irish Shell v Costello

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IE. Runningservice station. Change of owners. Made situation morecomplicated. D only person with a key. Accepted that when agreement drafted itwas a license but over time due to conduct of the parties and their intention, agreementmorphed into lease. License/lease: due to nature of transaction, whether orthe agreement in reality seeks to give or provide interest in land or personalright ofland. Held that construction of the agreement had created landlord/tenant relationshipeven though licensee/licensor were used. Look at intention of theparties in every applicable case. Must also consider exclusive possession which couldstrongly indicate lease/license. Held lease here.

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Exclusive possession

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Isn’t determinative, may strongly indicate that it is a lease rather than alicence. In the residential sphere in the UK cases have come up.

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Street v Mountford

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Exclusively.Stated notice 2 weeks and that rent act would not apply whichstated at the time that tenant could go to rental tribunal to have “fair rate” established.This was what the D wanted to avoid. After loads of appeal: HoL, overturned, whereresidential agreement included exclusive possession within room or property, strongpresumption of landlord tenant relationship non-matter language of agreement. Didn’twant court to undermined statutory provisions by phrasing agreements in acertain way.Where no intention by parties, no legal capacity by landlord to grant leasewould rebutpresumption

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Antoniades v Villiers

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AffirmedStreet. Boyfriend and girlfriend, separate license agreement inone bedroom flat. Included clauses that others could move in or the landlordaka not exclusivepossession. Held by court, 2 license agreement in reality on and too small so nointention, real intention to avoid rents act

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The payment of rent

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# Court somewhat cautious in allowing agreements to be lease instead of license and vice versa by disregarding nature of agreement

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Smith v Irish Rail

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Inagreement: No tenant right, no proprietary rights. Phrases such as licensor/licensefee. Exclusive possession, D didn’t have any key. Standard agreement forall kiosks. Purpose of D not to grant tenants/licensees control over theproperty (railstation). Broader policy reasons: differences to street and others, notresidential, commercialbetween businesses instead of business and tenants. Power relations fair, samebargaining position (not equal per se but more so than in Street). Exclusive possessionhere: Confusing cases of Gatien/Irish shell. When Smith signed, energetic youngman took risk, in 10 years, may have to exit business. Not concurrence with previouscases. Judge, looked at the A, considered the bargaining power. Held in favour ofSmith

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The realistic v formalistic position (BT in IE)

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Irish courts had rejected formalistic approach in Gatien in favour for a realistic approach with Irish shell. The two decisions in Kenny Homes and Governors of the national maternity hospital did however cast doubt to which approach was preferred as formalistic approaches followed in these cases. The court did however reverse back to the realistic approach in Smith.

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Kenny Homes v Leonard

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Court prioritized contract over the realistic position

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Governors of the national Maternity Hospital v McGouran

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The High Court focused on the terms of the agreement and said there was not exclusive possession due to the control retained by the hospital and therefore not a lease

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Arguments for the realistic approach

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# In practice, both parties may not stand on equal ground, e.g. one party stronger than the other

# Specific wordings a disquise used to degrade what in practice is a lease to a license

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Arguments for formal approach

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# In theory, two (business) parties with the same bargaining power who should be able to 'contract out' as they wish

# Should take into account the reality of business, not concerning a residency tenancy here but rather a commercial venture which could not enter into a lease due to a number of reasons, Smith had agreed on the terms and should therefore be bound to them

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Landlord and Tenant Act, 2015

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New act changing some of the previous law

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Residential Tenancies (Amendment) Act, 2015

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s.23 - proposed deposit retention scheme

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Part II RTA, 2004

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Rights and obligations

Obligations of the LL:

- Keep the dwelling in a habitable state
- Give the resident exclusive possession
Obligations of the T:
- Pay rent
- Notice before making changes

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Part III RTA, 2004

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Rent and rent review
# Rent cannot be above market price

# Not more often than every 12 months BUT:
s.24 of RTA, 2015: No rent increase under first 2 years, then no more often than every 12 months, this section has been commenced

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Part IV RTA, 2004

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Part 4 tenancy
# If in occupation for more than 6 months, right to reside for another 3 1/2 years
# LL can prevent this if he gives notice before 6 months unless lease for specified time longer than 6 months

# Multi-tenants
- One tenant cannot be removed due to actions of another
- If entering into tenancy where someone has part 4 tenancy, that person will also be included (for remaining time of tenancy)
- Part 4 still in place even though original tenant left

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Right to assign

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Transfer of rights and obligations to third person
- Written consent from LL crucial but if refusing, tenant can terminate lease which applies regardless of lenght of it
- Legislation does not include any exceptions to this
- Not determined but serious reasons could probably allow landlord to refuse

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Rigth to sub-let

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Similar to assignment but the tenant still retains rights and obligations in the property

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Notice of termination

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A distinction needs to be drawn between 'normal' tenancies (termination governed by part V) and part IV tenancies

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Termination of tenancies that are not part IV tenancies

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# Notice of forfeiture or re-entry does no longer terminate a residential tenancy (s.58(1)
# Notice of termination must be delivered in writing and signed by that party (s.62)
# Notice must specify date of notice and date of termination, LL must also provide explanation for termination in cases where tenancy has lasted for more than 6 months (s.62)

# However this type of termination does not apply to tenancies of fixed term unless break clause in contract
- Still option to sub-let/assign, if LL refuse, may terminate the lease anyways

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Period of notice (non part IV tenancies)

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Unless otherwise specified in the contract or if any parties have failed to comply with obligations of the contract:

Duration of Tenancy LL T
<6 months 28 28

6 months-1 year 35 35

1-2 years 42 42

2-3 years 56 56

3-4 years 84 56

4 years> 112 56

(all the above refers to days of notice)

# Note that LL & T can of course contact for a longer period of notice than the minimum requirement set out by statute

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Termination of lease due to anti-social behavior or causes damage to property

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- If T engages in anti-social behavior as per s.17(1)(a&b) or damage the property, the LL must only provide 7 days notice as per s.67(1)(a)
- If a T wishes to terminate lease on the grounds that LL poses an imminent danger of death or serious injury or imminent danger to property, must only provide 7 days notice as per s.68(2)(a)

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Termination of lease due to breach of contract

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LL - 28 days of notice required as per s.67(1)(b)

T - 28 days of notice required as per s.68(2)(b) (LL must be given a notice of this breach in writing first and be given a reasonable chance to rectify this)

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Termination of lease due to failure to pay rent

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- LL must first provide a preliminary written notice to T that an amount of rent is due
- Allow 14 days from the date of the preliminary notice for the remaining amount of rent to be paid
- If rent still not paid, may issue 28 days notice of termination as per s.67(2)(b)

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Termination of a part IV tenancies

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s.34 LL may only terminate tenancy due to structural issues, conveyance of property, leasing the property to family, breach of obligation by tenant
s.28 of 2015 act, req of LL to enclose info about selling and construction to T to protect T from LLs using this as an excuse to get rid of T

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PRTB

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Private Residential Tenancies Board
# Mediation and adjudication
# Tenancy tribunal
# Enforcement mechanisms (on paper...)

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Right of a new tenancy (BT)

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Part II
s.13 LLTAA, 1980 - If continuous occupation for 5 years (amended from 3 to 5 in 1994 act) , automatic entitlement for new lease under business equity
- T must claim relief before end of the 5 years, with court unless agreement between parties. Meanwhile dispute, allowed to remain as personal right rather than proprietary right
- Previously no possibility to contract out, changed with Gatien(?)
- With 1994 act, those with office leases could contract out of the right to equity provided that independent legal advice had been sought

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BOI v Fitzmaurice

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Different approach than Gatien. Renton premises to increasebut a particular percentage calculated by the cost of living index(CSO). Post 1980 act. Lease also included clause from June 1986(when T would gain tenancy) until 1988, increase would insteadby calculated by the index times 4. Purpose of act, prevent clauseslike this which forced tenants to surrender their lease (dueto unreasonable rent increase) before business equity was met (s.85)

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3 types of equity

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- Business equity
- Long possession equity
- Improvement equity