Termination and Ending leases
Leases may be terminated in many ways and the first thing you must look at is….whether the lease is covered by the Residential tenancies act 2004.
The vast majority of residential leases and tenancies are now governed by this legislation and the landlord and tenant’s rights and obligations in a residential letting are set out here in landlord/tenant
What follows mainly concerns commercial leases.
The most common ways to terminate or end a lease are
1) Notice to quit
2) Forfeiture
Since the Residential Tenancies Act 2004 lays down the procedure for the vast majority of residential tenancies Notice to Quit and Forfeiture now only apply to commercial tenancies.
You only use a Notice to Quit procedure where the tenant remains in possession after the expiry of the agreed term and continues to pay rent. This tenant is said to be overholding.
Where the landlord wishes to end the tenancy prior to the end of the agreed term, the appropriate procedure is Forfeiture.
Notice to Quit
Notice to quit is the most common procedure to recover the premises where the tenant is overholding.
Anybody who has received prior express authorisation may serve the notice to quit.
Where the landlord is not serving the notice to quit himself it is prudent to arrange prior written authority to be given to the server. This authority can not be given retrospectively.
There is no set form for the notice to quit but it must contain a clear and unambiguous intention to end the tenancy.
A description of the premises must be given and it must be addressed to ‘the tenant and all other persons in occupation’.
It need not be signed but it is prudent to do so.
Length of Notice
Firstly check the written agreement to see is there an agreed procedure. If not the statutory minimum is 4 weeks and the notice must end on a gale day(this is the point when one period ends and another begins)
The crucial question is how is the rent reserved in the lease(this is not the same as how is the rent paid)
A monthly tenancy requires one month’s notice expiring on a gale day.
A quarterly tenancy requires 3 months notice and this should expire on a gale day.
A tenancy from year to year requires 183 days notice expiring on the anniversary of the tenancy.
Personal service is best and in the case of a limited company on the registered office of the company.
Waiver of notice
You will be deemed to have waived the notice to quit if you
Serve another notice
Demand the rent
Accept the rent which falls due after the end of the notice period
Landlords are advised therefore not to accept rent after the end of the notice to quit has expired.
Care should be taken to check the lease to see if any provision has been made for a specific method of terminating the tenancy.
Forfeiture
This is only appropriate where the term of the lease is still running. But a landlord has no right to terminate a lease prematurely unless the tenant has been in breach of one or more of it’s terms.
A landlord also loses the right to forfeiture if he does not follow certain statutory procedures which give the tenant a reasonable opportunity to remedy any breach.
It is extremely difficult in practice to forfeit a lease, especially if the parties are in court for the first time.
Grounds for forfeiture
The 3 main grounds for forfeiture are………
1) Disclaimer by the tenant of the landlord’s title
2) Re-entry of ejectment where there has been a breach of a condition in the lease
3) Re-entry of ejectment where there has been a breach of a covenant which provides for re-entry for that breach
Breach of condition of lease
Breach of a condition of a lease gives the landlord an inherent right to re-enter. But the landlord must be careful to distinguish between a condition and a covenant.
Breach of covenant in a lease
A breach of covenant in a lease will only give rise to a right to re-enter if the covenant broken has a proviso for re-entry.
Before forfeiture can take place a ‘section 14’ notice must be served unless forfeiture is occurring for non payment of rent. In this case there is no need for a ‘section 14’ notice.
This notice calls upon the tenant to remedy the breach within a reasonable time.
If the notice is served and the time specified in the notice has elapsed without the remedy of the breach, a demand is again made for possession and the landlord may re-enter if it can be done without the use of force. There is a statutory prohibition on the use of force.
Ejectment civil bill on title
If the landlord can not re-enter peacably the landlord’s remedy is to issue an ejectment civil bill and seek an order for possession in court.
Relief against forfeiture
There are 2 reliefs for the tenant t prevent forfeiture of the lease-statutory and equitable.
Statutory
Section 14(2) Conveyancing Act 1881 allows the tenant to apply to court for relief-it is then at the discretion of the court and there are no fixed rules for the court in exercising its discretion.
A sub-lessee will get statutory relief and his sub-lease will continue as if the superior landlord was the immediate lessor.
The Landlord and Tenant(Ground Rents) Act 1978 provides that forfeiture can not occur by reason of failure to pay ground rent in the case of a house where the tenant is entitled to buy out the freehold.
In general there is no statutory relief where the landlord forfeits the lease for non-payment of rent.
Equitable
Courts may use its equitable discretion to grant relief to the tenant, even for non-payment of rent, if it would appear to be just to do so.
Courts lean against forfeiture for non payment of rent and tend to give tenant’s plenty of opportunity to pay up. But it will look at the conduct of the parties prior to going to court.
Effluxion of time
Where the term of a lease is up there is no need to serve a notice. A letter prior prior to the end of term pointing up the end of the term and demanding possession will suffice.
Court Order
The court has jurisdiction under certain legislation to terminate a tenancy.
Exercise of an option (break clauses) in a lease
Commercial leases often have break clauses entitling either party to terminate prematurely.
Legal proceedings
It may still prove necessary to go to court,even after ending the lease by one of the methods outlined above.
Ejectment Civil Bill on Title Based on Forfeiture
The landlord’s claim is based on the fact that the tenancy has ended by forfeiture and the tenant has no right to retain possession. This is a very common procedure, especially where non-payment of rent has occurred.
The landlord may need to go to court a number of times to establish a poor track record of the tenant as the court is very reluctant to grant possession first time for non payment of rent.
Ejectment for non payment of rent
This is based on Deasy’s Act,1860. The huge disadavantage is that the landlord must wait until one years rent is due-not very popular method for this reason.
Ejectment Civil Bill for overholding
This is used following service of a notice to quit or where the original lease has ended and the tenant remains in possession.
From the tenant’s perspective under the Landlord and Tenant Act 1980 he must now serve notice to seek relief, that is to seek a renewal of the lease) within a certain period following service of the notice to quit.
Ground Rents
Buying out the ground rent on a leasehold property is an option for many people….either in commercial or residential premises.
What is ground rent?
Ground rent is rent paid on leases which are at least 99 years old.
Features of ground rent are
* Very low rent (ie not market rent)
* No rent reviews
They can apply to both residential and commercial leases.
The Landlord and Tenant Act 1967 gave the tenant the right to buy out the freehold.
I deal elsewhere on this site Right To a New Lease with the right to a new lease and in addition to the right to a new lease the tenant may have the right to buy the freehold.
The differences are that
1. the right to buy the freehold only applies to permanent buildings on the land (the right to a new lease applies to any building, not necessarily of a permanent nature)
2. there is an occupancy requirement re the new lease procedure; there is no occupancy requirement to buy out the freehold
Landlord and Tenant (ground rents ) act, 1978
This act changed the test to establish whether the tenant has the right to buy out the freehold. Essentially it requires that in order to have the right to buy out the ground rent and acquire the freehold then the tenant must comply with all of section 9 of the act and one of the conditions of section 10.
I do not propose to spell these conditions here but they can be accessed at www.irishstatutebook.ie in the act itself.
Yearly tenants
If the tenant is a yearly tenant then section 15 of the act sets out the conditions required to obtain the entitlement to buy the freehold.
Restrictions
Section 16 of the act sets out the restrictions to the entitlement to buy out the ground rent.
Procedure
There are 2 methods to buy out the ground rent and purchase the freehold
1. For a business premises-you must use the procedure under the 1967 act
2. For a residential premises you can use either the 1967 act or the 1978 act
Both of these acts can be viewed on www.irishstatutebook.ie
Essentially there are various forms and notices to be served on the landlord and these forms can be accessed on www.landregistry.ie
If the lessor can not be found then you can make application to the County Registrar for the conveyance to be executed. Consult your solicitor to follow this procedure.
The 1978 act procedure, which applies only to residential premises, is called the Vesting Certificate procedure and these certificates are issued by Land Registry, even where the property is unregistered.
Price to buy out the ground rent and acquire the freehold
The price of the freehold is provided for in Landlord and Tenant act 1984 and makes provision for the use of an arbitrator to determine the price. The arbitrator will either be the County Registrar (1967 act) or the Registrar of titles in Land Registry (1978 act).
Generally the value will be approximately one eighth of the market price where the lease has expired.
Where the lease has not expired then Land Registry can advise as to what multiplier they are currently using. It will be approximately 8/10 times the annual rent for residential premises and 18/20 times the annual rent for commercial.
However if you find yourself in this situation it is prudent to engage the services of a professional valuer and your solicitor.
If you are paying ground rent and qualify to buy out the ground rent and acquire the freehold interest, then you would be well advised to do so.
Residential Letting Agreements-Landlord’s Obligations
The obligations of a landlord in a residential letting or tenancy
A landlord’s obligations in a residential tenancy and letting can be very onerous. A good working knowledge of your rights and obligations can be very important.
The governing legislation is the Residential Tenancies Act 2004.
The residential tenancies act 2004
The Residential Tenancies Act 2004 applies to every dwelling which is the subject of a tenancy.
There are some limited exceptions where the residential tenancies act will not apply but this report is intended for the vast majority of residential lettings which have arisen over the last 10 years in Ireland.
Part 4 Tenancy
One of the most important effects of the residential tenancies act is that where a person has been in occupation, under a tenancy, for a continuous period of 6 months then, provided no notice of termination has been served, then the tenancy will continue for 4 years.
This right of the tenant is of huge significance for many landlords and this tenancy is then called a Part 4 tenancy.
Landlord and Tenant’s obligations
All of these obligations are set out in the act and are incorporated in the standard letting agreement which is used by most solicitors in Ireland.
You can see this agreement at www.dsba.ie (Dublin Solicitors Bar Association) so if you are unsure as to your obligations as a landlord or tenant have a look there first or consult your existing agreement if you are currently a landlord/tenant.
Rent/Rent review
Rent may not be set at an amount greater than the market rent for the tenancy in question and any disputes can be referred to the Tenancy Tribunal of the Private Residential Tenancies Board (www.prtb.ie)
Termination of Residential Tenancies
Tenants of fixed term tenancies ie the standard 12 month letting agreement common in Ireland have security of tenure from the word go as a result of their 12 month agreement.
Termination of a residential letting by the Landlord
A landlord can terminate a Part 4 tenancy prematurely on one of 6 grounds laid down by the legislation and only then when he serves a notice of termination stating the ground and has served the notice in accordance with the notice periods laid down by the act.
The 6 grounds for premature termination of a Part 4 tenancy by the landlord are
1.The tenant has failed to comply with their obligations. However the landlord has to notify them of their failure and give them a reasonable time to remedy the failure.
2. The property is no longer suitable for the tenant.
3. The landlord intends entering into an agreement within 3 months to sell the property.
4.The landlord requires the property for his own use or for a family member (but he must specify who he needs it for and for how long)
5. The landlord intends refurbishing or renovating the property.
6. The landlord intends changing the use of the property to some other use.
If the landlord uses one of these grounds dishonestly then the tenant can make a complaint to PRTB and they can award compensation to the tenant.
PRTB awarded over €5,000 to a tenant who had been illegally evicted in Galway in 2006.
Termination of a residential letting by the tenant
The tenant may terminate by giving a notice of termination to the landlord with the required notice period.
Unlike the landlord the tenant can bring a Part 4 tenancy to an end without giving a reason.
The first 6 months
A landlord can terminate a tenancy, provided it is not a fixed term tenancy, within the first 6 months without giving a reason.
However he must give the statutory notice period.
12 month fixed term tenancy
The right to terminate prematurely in this instance is limited to situations where either party is in breach of the agreement or in breach of their statutory obligations.
Landlords need to be careful here as the fixed term tenancy gives more protection to the tenant than they would have if they only had a Part 4 tenancy as this can be terminated in the first 6 months without giving a reason.
Further Part 4 tenancies
Where a tenancy continues to the end of the 4 years of the part 4 tenancy and neither party serves notice of termination then a further Part 4 tenancy will arise and will last for 4 more years.
Multiple Occupants
Security of tenure applies to any premises occupied by multiple tenants from the earliest date at which any of them has 6 months occupation clocked up.
Contracting out
You can not contract out of Part 4 of the act which means no matter what you want to agree with the tenant he has his statutory entitlement to a Part 4 tenancy.
Notices
Notice must be served to terminate in all cases. The periods are different for tenants and landlords.
Termination notice
This must
Be written
Signed by the landlord/tenant
Specify the date of service
If the tenancy is for more than 6 months state the reason
The date of termination
Notice Periods
Where the landlord wants to terminate where the tenant is in breach the period depends on the default-anti social behaviour requires only 7 days notice.
For any other reason the period is 28 days and if it is non payment of rent then the landlord must first notify the tenant in writing that the rent is overdue. He must wait 14 days and then serve the notice of termination of 28 days.
Termination by landlord
Length of tenancy Notice period
Less than 6 months 28 days
>6 months and <12 months 35 days Between 1 and 2 years 42 days Termination by tenant Length of tenancy Notice period Less than 6 months 28 days >6 months and <12 months 35 days
Between 1 and 2 years 42 days
Time limit for disputing a notice of termination
Must be referred to PRTB within 28 days of receipt of the notice.
Residential Letting Agreement Template
New Leases-How To Claim A New Lease
The Landlord and Tenant Act 1980 which was amended by Landlord and Tenant Act 1994 provide statutory entitlements to tenants in a landlord/tenant relationship.
The reliefs apply where the property that is the subject of the agreement is a tenement which is a legal description but has been interpreted fairly generously. It includes buildings which are not permanent and can include sheds erected without planning permission.
To qualify for the statutory entitlements the main purpose/use must attach to the buildings. If there is land involved then the land must be subsidiary and ancillary to the main use of the buildings.
Section 16 of Landlord and Tenant Act 1980 provides that a tenant will be entitled to a new tenancy at the expiry of his existing lease if he can prove one of the following equities
* Business equity-if the tenant was in occupation for 5 years continously and was using the premises/tenement for business purposes (this period used to be 3 years); temporary breaks can be disregarded by the courts. The five year period only applies to tenancies/leases which commence after 10 August 1994 and the tenant must occupy the tenement for the entire period
* Long possession equity-this applies to both residential and business property and states that if the person was in occupation for 20 years then he/she was entitled to a new lease
* Improvements equity-this also applies to both residential and commercial property and states that if the tenant would be entitled to compensation for improvements and they accounted for half or more than half of the letting value of the tenement when the notice of intention to claim statutory relief, then the tenant has an improvements equity
Terms of a new tenancy
These terms are to be agreed between landlord and tenant and failing that will be fixed by the court. If the tenant is entitled to a new lease based on business equity the new term shall be fixed at 20 years or such time as the tenant may nominate, provided it is over 5 years.
If the right to a new tenancy is based on long possession or improvements the term of the new tenancy will be 35 years or a lesser term that the tenant can nominate.
Rent
This will be fixed by the court at open market value if the landlord and tenant can not agree on a new rent.
Restrictions on a right to a new tenancy
Section 85 of the act prevented any provision contracting out of the Act. However this was changed re the tenant of an office premises who could contract out of his right if he took independent legal advice and signed a renunciation under sect 4of his right and this had to be done before the commencement of the tenancy.
Other restrictions include the situation where the tenant is in breach of the lease in respect of payment of rent.
Furthermore where the landlord intends to pull the building down in order to redevelop the building/site then he can refuse to grant a new tenancy. However if this occurs and the tenant would have been entitled to a new tenancy otherwise, then the tenant is entitled to disturbance compensation which is a right of both residential and commercial tenants.
How to claim a new tenancy
The forms required are set out in Landlord and Tenant Regulations, 1980. This notice must be served before the end of the tenancy or within 3 months of the end. (The courts have discretion to extend these time limits in limited circumstances)
Compensation for improvements
This is available to both residential and business premises. Where a tenant quits a tenement because of the termination of the tenancy he is entitled to be paid compensation for every improvement by him or any predecessors in title which adds to the letting value of the premises.
However he will not be entitled to compensation if he has surrendered the lease or the termination is for non-payment of rent.
Improvement noticeWhere a tenant proposes to make improvements to the tenement he may serve an improvement notice on his landlord.
If the latter ignores it then the tenant can go ahead with the works and is entitled to compensation. However the landlord can then himself serve an improvement undertaking notice on the tenant and execute the works himself. Or he can object to the improvement notice and the tenant can then withdraw his notice or apply to court which can allow the tenant to make the improvement or reject his claim based on the fact that he has not been in occupation for 5 years and is consequently not entitled to a new lease.
Any covenants in the lease which prohibit the selling of the building or the change of use of the building will be interpreted as only prohibiting this to occur without the landlord’s consent, and this consent must not be unreasonably witheld.
A similar interpretation will apply to any covenant in the lease prohibiting the making of improvements.
Update
The Civil Law Act 2008 has made some changes to Landlord and Tenant legislation. Previously only the occupier of an office lease could contract out of his right to a new lease as outlined above.
The Civil Law Act 2008 now allows any business user to renounce his right and furthermore allows him to renounce not just prior to the commencement of the lease but at any time. He must still receive independent legal advice.
The Private Residential Tenancies Board-PRTB
What is the tenancy registration system?
It is a requirement on all landlords to register details of their tenancies within one month of their commencement on form PRTB1 available from this website.
The information on the register will be used to provide aggregate data on the private rented sector. Personal details such as the tenant name, landlord name, rent, etc. will not be made public.
Tenancy Registration Fees
Fee Payable
€70 Per tenancy being registered on time i.e. within 1 month after the commencement of the tenancy.
€300
For multiple tenancies in the one building being registered at the same time and all on time (i.e. within one month of the commencement of the respective tenancies) by the one landlord (please staple the multiple forms together).
€140
(Late Fee)*
In all circumstances where the tenancy is being registered more than 1 month after the commencement of the tenancy, an additional fee of €70 is payable for these late registrations (i.e. the total fee is €140 per tenancy). There are no exceptions to the late fee and the composite fee is not available to late registrations of multiple tenancies within the one building.
No Fee
Where 2 payments in respect of the dwelling have been made to the Private Residential Tenancies Board in the previous 12 months.
No Fee
* The Residential Tenancies Act 2004 does not allow for any exemptions from the requirement to pay the late fee in any case. As such the PRTB has no power to waive the late fee in any case regardless of the circumstances or the reasons for the delay.
Why does the form ask for the PPS numbers and other details?
The PPSN is the State identification number for dealings with public sector bodies. It will act as the unique tenant and landlord identification number on the registration record. Most of the other details are required as a record of the tenancy in case disputes arise or so as to gather aggregated data on the sector. Certain contact details are also requested. This is necessary as the registration application must be made within one month of the commencement of the tenancy and, if later, the landlord will have to pay a double fee (currently €140).
What dwellings are exempt from the tenancy registration system?
Business premises, even where partly residential
A dwelling to which Part II of the Housing (Private Rented Dwellings) Act 1982 applies (i.e. formerly rent controlled dwelling occupied by the “original tenant” or his/her spouse) or to which Part II of the Landlord and Tenant (Amendment) Act 1980 applies (i.e. long occupation equity lease tenancies)
A dwelling let by a local authority or voluntary housing body
A dwelling occupied under a shared ownership lease
A holiday let
A dwelling in which the landlord is also resident
A dwelling in which the spouse, parent or child of the landlord is resident and there is no written lease or tenancy agreement
A dwelling that is occupied rent free
If a dwelling is available for renting but has not yet been let, there is no requirement to register.
Will the PRTB provide confirmation of exemption from the tenancy registration system ?
No, the PRTB will not routinely provide for individuals confirmation of exemptions from the tenancy registration system.
What happens if I don’t register?
Until such time as a tenancy has been entered onto the PRTB’s register of tenancies, the PRTB is precluded from dealing with any dispute relating to the tenancy that may be referred to it by the landlord. The registration requirement applies only to ongoing tenancies so it is important that the registration process be completed as quickly as possible in case any difficulties arise in relation to the tenancy.
What is the PRTB doing about unregistered landlords?
The steps being taken by the PRTB to pursue compliance with the registration requirement are in accordance with the provisions of the Residential Tenancies Act 2004 and, in particular, sections 144 and 145. They include the issue of notices to landlords and/or occupiers of the dwellings in question, and the prosecution of offenders for non-compliance with the registration requirement. Details of these notices are set out below.
Landlord 1st Notice – section 144(2)
Where the landlord’s address is available to the PRTB, a notice is served on the landlord stating that in the PRTB’s opinion there is a tenancy in the dwelling in question that requires to be registered and that an application for registration must be made. The notice requests the landlord to furnish within 14 days the reasons why the landlord may consider that they do not have to register.
Landlord 2nd Notice – section 144(3)
Where the landlord fails to respond to the 1st notice, within the 14 day period or a response was received within the 14 day period which did not result in the PRTB changing their opinion on the registration requirement applying, a notice is served on the landlord stating that the landlord is required to register within 14 days and failure to register within this timeframe will result in the landlord being guilty of an offence under the Residential Tenancies Act 2004.
Occupier’s Notice – section 145(4)
Where the landlord’s name or address is not supplied, a notice is served on the occupiers requiring them to supply within 14 days any information in their possession that could lead to the PRTB ascertaining the identity of the landlord or of his/her address. That notice also states that failure to respond within the 14 days will result in the occupier being guilty of an offence under the Residential Tenancies Act.
What happens if a landlord or occupier does not comply with the PRTB’s notices about not registering?
If the landlords and occupiers fail to comply with the provisions of the Residential Tenancies Act 2004 as outlined above, the PRTB will exercise the power open to it under the Act in relation to prosecutions. However this process may take time as in order to maximise success and effective enforcement, it is essential that the information available to the PRTB is accurate and that the PRTB operates in accordance with the appropriate procedures. This is because the successful conviction of the landlord or tenants of criminal offences under sections 144 or 145 respectively requires a high standard of proof and a correct name and address is vital to this process.
Are landlords eligible for tax relief on interest paid on borrowing to purchase investment properties?
Landlords should be aware that the Finance Acts have been amended to explicitly provide that compliance with the registration provisions contained in the Residential Tenancies Act registration provisions is a condition of eligibility for mortgage interest relief on residential properties. It is a matter for individuals to satisfy themselves that they are in compliance with the Residential Tenancies Act.
The PRTB will not routinely provide letters confirming exemption from the Act. The PRTB propose to supply the Revenue Commissioners with information on unregistered tenancies of which it becomes aware so that, as well as facing criminal prosecution, the landlords in question will lose any mortgage interest relief relating to the dwelling.
What do I do if my tenant leaves my rented property?
If your tenant(s) leaves the rented property then it is deemed to be the end of the tenancy. You will need to register with the PRTB the new tenancy within one month of the new tenants moving in.
If at least one of the tenants remain in the rented property and the other tenants are replaced by new tenants, then this would be considered an update of the tenancy details. If there is a change of rent you are required to notify the PRTB and when doing so, you are required to advise of any other change of the tenancy details that have arisen in the interim – no fee is payable when providing an update of tenancy details. The tenancy registration form, which is downloadable from this website, can be used for this purpose also.
I lease my property to a management company who in turn rent out the property to individual tenants; I have no relationship with the tenants of the management company. Do I need to register?
In the above scenario there are two actual tenancies and they both need to be registered. Under the RTA, the landlord is legally obliged to register the tenancy where the dwelling is leased to the management company and the management company is legally obliged to register the tenancy with the individual tenant(s). Each tenancy will then have a unique RT number assigned to it.
The above applies in all arrangements where the dwelling is sublet and is ultimately a residential dwelling other than for those dwellings excluded in Article 3 of the RTA (a list of excluded dwellings)
What happens if I change the Rent?
The landlord must inform the Board of a change in the rent payable in respect of a dwelling within one month of the change occurring.
What happens if one of the tenants moves out and is replaced by a new tenant?
Landlords should at the same time notify the Board of any other change to the registered tenancy details e.g. a replacement tenant. No fee is payable for informing the Board of these changes.
What is duration of the registration?
Once a tenancy is registered it remains a registered tenancy for as long as the tenancy remains in existence. Once the tenancy is terminated, any new tenancy created in respect of the dwelling must be registered with the Board.
Why am I being asked to Re-register my tenancy?
Under the provisions of Part 4 of the Act if the tenancy has not previously been terminated it will be deemed to be terminated when it has lasted 4 years and a new tenancy will then commence between the parties. This new tenancy must be registered with the Board and the registration fee paid.
What do I do if the dwelling ceases to be let?
If the dwelling ceases to be let, the Board should be notified so that the record can be removed from the register – no refund of the registration fee is payable in such circumstances.
Enforcement of registration requirements.
The registration of a tenancy is a legal requirement on the landlord. Landlords failing to register a tenancy may be guilty of an offence and upon conviction shall be liable for a fine of up to €3,000 and/or up to 6 months in prison, along with a daily fine of €250 for a continuing offence.
What is the published register?
The Board maintains a published register, which is available for public inspection at the Board’s office. However, the published register will not contain any information that could lead to the disclosure of the identity of the landlord or tenant(s) or the rent payable.
Repairs in a Landlord/Tenant Agreement/lease
Generally the tenant will usually be liable for repairs. With residential tenancies the obligation to repair is set out in the Residential Tenancies Act 2004.
However these obligations are in addition to any other statutory obligation such as The Landlord and Tenant Act 1980 and the Housing Regulations 1993.
Housing Regulations 1993
These regulations require landlords to maintain certain minimum standards and Article 5 requires the landlord to keep such houses in a proper state of structural repair.
These regulations have been poorly enforced and have been superseded to a great extent by Residential Tenancies Act 2004 which has increased the penalties for breach of Housing (Miscellaneous Provisions) Act, 1992 which was the forerunner of Housing Regulations 1993.
Landlord and Tenant (Amendment) Act 1980.
This act limited the landlord’s remedy when the tenant was in breach of a covenant concerning repairs.
Section 65 essentially limits the tenant’s liability to the landlord’s loss in value of the building e.g. if a premises is worth €750,000 and the building was damaged to the extent that it is now worth €600,000 the tenant will be liable for €150,000 even though it may cost the landlord €200,000 to repair.
Section 87 also allows the tenant to carry out repairs which the landlord was bound by covenant to do and then deduct the cost of those repairs from the rent.
The Housing Act, 1966 states that in relation to a house a condition shall be implied into the lease that at the commencement of the lease the house is reasonably fit for human habitation and the landlord will keep it so.
Regardless it is necessary for the tenant to serve a notice on the landlord setting out the disrepair complained of and requesting the landlord to sort it out.
In Conclusion
There is nothing to stop both parties at the outset concluding their own agreement and providing for liability in most situations.
As noted at the outset it will generally be the tenant who will be liable for repairs. It must be noted however that sect. 12 and 16 of Residential Tenancies Act 2004 places specific obligations on both landlord and tenant re tenancies to which the act applies and sect. 18 provides that these obligations can not be varies or contracted out of by any lease or agreement.
In commercial leases it is more common for the tenant to be responsible for both interior and exterior repairs. One important point here is the phrase ‘to put and keep in repair’ in a covenant.
This has been held to mean that the tenant must put the premises in repair, not just keep so it is crucial that commercial leases are scrutinised closely.
Generally if a dispute goes to court which turns on the repairing covenant the court will consider a number of factors including location, age of building and the kind of tenant likely to rent the building when deciding the extent of the tenant’s liability under an ordinary repairing covenant.
Remedies
I have dealt elsewhere on this site with residential tenancies and the Residential Tenancies Act 2004 and the termination procedures.
From the landlord’s perspective
Forfeiture (only applies to premises outside the scope of Residential Tenancies Act 2004) This can occur where the written lease contains a provision for re-entry
Damages (most leases nowadays include a covenant by the tenant to make good all loss sustained by the landlord as a result of a breach by the tenant on any covenant/condition contained in the lease.
From the tenant’s perspective
Damages ( a tenant can carry out the necessary repairs when the landlord is in breach of the covenant to repair and can then sue for damages)
Set off against rent (a tenant can set off the cost of repairs against rent due)
Injunction/specific performance (this is available to the tenant where the landlord is in breach of the covenant to repair)
Termination (landlord’s failure can be taken as a breach of contract)
Tenancy Disputes in Residential Letting Agreements
The tenancy tribunal plays an important role in the resolution of tenancy disputes.
The resolution of tenancy disputes in residential letting agreements is governed by Part 6 of the Residential Tenancies Act 2004. The dispute resolution committee of the PRTB replaces the courts.
The main areas of dispute
are
* deposit retention
* illegal evictions
* invalid notices of termination
* over-holding
* rent arrears
* breaches of obligations
* anti-social behaviour
A dispute may be referred for Mediation, Adjudication, Tribunal Hearing.
If the dispute is not resolved by mediation or adjudication then it will be referred to a Tenancy Tribunal. The PRTB can refer directly to a tribunal if it chooses.
If mediation takes place and is unsuccessful then it must be referred to a tribunal. A party to a determination can also appeal a decision of an adjudicator to a tenancy tribunal.
Time limits
Generally a tenancy dispute must be referred within 28 days of notice being given which gives rise to the dispute or for example the termination of the tenancy.
The PRTB can refuse to deal with a complaint if it is
1. frivolous/vexatious
2. statute barred in the context of court proceedings
3. concerns a dwelling to which the Residential Tenancies act does not apply.
The PRTB will not deal with a reference to it by an unregistered landlord. However if the landlord registers the tenancy within a reasonable time it may then deal with it (if it chooses)
A tenant can always refer a dispute as the obligation to register the tenancy is the landlord’s.
2 stage procedure
PRTB uses a 2 stage procedure to resolve disputes. The first stage is mediation or adjudication.
The second stage is a public hearing by a tenancy tribunal if not resolved at the first stage.
Mediation
A mediator prepares a report and the PRTB makes a determination order within 7 days which contains the terms of the agreement reached by the parties.
If there is no agreement then the tenancy dispute goes to a tenancy tribunal.
Adjudication
An adjudicator reaches a decision him/herself. The adjudicator prepares a report for PRTB and they then issue a determination order.
This order is binding unless appealed by one or both of the parties to a tenanct tribunal within 21 days. There is a form of cross examination in an adjudication but the adjudicator controls the process.
Tenancy tribunal
A tenancy tribunal deals with
1. disputes referred directly by the PRTB
2. disputes where mediation has not worked
3. where the tenancy dispute is the subject of an appeal from a determination of an adjudicator.
Each party is entitled to be heard, be represented, give evidence and call witnesses at the hearing. Costs of witnesses or professional representation will not generally be awarded.
Determination Order
PRTB makes this order after receiving a report from
1. a mediator
2. an adjudicator
3. a tenancy tribunal
It is binding when issued. A determination order from a tenancy tribunal determination may be appealed to the High Court within 21 days on a point of law only.
Failure to comply is an offence and the PRTB can prosecute people for failing to comply with a determination order or it can apply to the Circuit court for an order forcing compliance.
If the PRTB prosecutes instead for failur to comply with a determination order the penalties possible are up to 6 monhts in jail or a fine up to €3,000 or both.
The resolution of tenancy disputes is an important skill for anybody letting residential property.
