In order for any contract to be enforceable you need 5 things:
The parties must have the legal capacity to enter into a contract
They must intend creating legal relations
The contractual terms must be certain
There must be offer and acceptance
There must be consideration.
For the sale of land or real property it was the case that a written note or memorandum was made which was signed by the person to be charged with the contract. Although this requirement was relaxed by reason of the equitable doctrine of part performance.
Doctrine of part performance
This doctrine held that an oral contract for the sale of land, where no note or memorandum existed, could be enforced by the party seeking to enforce the contract has partly performed his actions under the contract and the other party has acquiesced in those acts of part performance.
Land and Conveyancing Law Reform Act 2009
This Act changed the law by repealing the old Statute of Frauds (Ireland) Act, 1695 as follows:
Section 51.— (1) Subject to subsection (2), no action shall be brought to enforce any contract for the sale or other disposition of land unless the agreement on which such action is brought, or some memorandum or note of it, is in writing and signed by the person against whom the action is brought or that person’s authorised agent.
[SF 1695, s. 2]
(2) Subsection (1) does not affect the law relating to part performance or other equitable doctrines.
(3) For the avoidance of doubt, but subject to an express provision in the contract to the contrary, payment of a deposit in money or money’s worth is not necessary for an enforceable contract.
Memorandum/Note of Agreement
The following matters should be included in the memorandum
Any other provisions agreed between the parties
Where the conditions of common law and the Land and Conveyancing Law Reform Act 2009 are satisfied an enforceable contract for the sale of land (real property) comes into being. This type of contract is known as an ‘open contract’ because all the terms of the contract are not set out in the memorandum.
A closed contract, by contrast, is one in which the parties set out all the terms of the agreement in a formal agreement. It is the practice in Ireland that the standard form Contract for Sale produced by the Law Society of Ireland is used.
The stamp that is put on your passport by an immigration officer will determine:
What you can and cannot do in Ireland
How long you can stay
The amount of time you accumulate on a stamp is important when you apply for citizenship by naturalisation as it will indicate ‘reckonable service’ for the purpose of the necessary calculation.
This is the lowest level stamp and you must be fully self sufficient from a financial perspective. You must have private medical insurance and cannot receive any public services-for example hospital treatment.
You cannot work or engage in business.
This Stamp is used if you are a visiting academic at an Irish university or college, live in Ireland as the elderly dependent of a non EU/EEA citizen, retire to Ireland as a person of independent means, work in Ireland for an overseas company for a limited time.
This stamp indicates permission to work or operate a business in Ireland, subject to conditions.
The conditions? You or your employer must have first obtained an employment permit for you or a letter of permission from INIS.
Stamp 1 is typically used when you have permission to work in Ireland based on an employment permit, work in Ireland on a working holiday authorisation, or operate a business in Ireland.
Stamp 1A is used for paid accountancy training situations, subject to certain permissions, and for a specified period of time. Therefore you will be a trainee accountant.
This stamp indicates you have finished your studies in Ireland and wish to seek employment under the third level graduate programme. It allows you to work for 40 hours per week.
You cannot receive any benefits or use publicly funded services
You can work in casual employment for 20 hours per week during school term, 40 hours per week outside school term.
Stamp 2 is typically used when you have permission to study the English language or a higher national diploma or a degree or a PhD.
Stamp 2A is used for those who have permission to study in Ireland on a non ILEP programme.
You must not engage in a profession, trade or business; nor can you avail of any public funded services or receive benefits and you must have private medical insurance.
Typically this stamp is used to allow you study in Ireland for a semester or to study at a private secondary school in Ireland.
Stamp 3 allows you to stay in Ireland for a specified period of time.
The conditions are that you cannot work or engage in a business, trade, or profession.
Examples of this type of stamp would be for volunteers, ministers of religion, joining your non EU/EEA spouse who is in Ireland on a work permit.
Stamp 4 is permission to stay in Ireland for a specified period of time.
You may take up employment, establish and operate a business, access state funds and services, work in a profession.
You may be given a Stamp 4 permission if you are joining your family member who is a refugee, to join your Irish spouse, civil partner or de-facto partner, to join your EU/EEA family member based on EU Treaty rights, to remain with a child who is a family citizen, under the Investor and Entrepreneur Programme, for long term residence.
You may also be given Stamp 4 permission if you have a valid critical skills employment permit for 2 years, with a valid employment permit for 5 years, and as a researcher for 2 years.
This stamp is a permission to stay in Ireland without any limit as to time.
Stamp 6 means you are a dual citizen with Irish citizenship and you will be given a stamp 6 in your non-Irish passport if you have applied to remain in Ireland without permission.
You should apply for immigration permission before you come to Ireland. If you are successful you must then register your permission to stay in Ireland. You do not need to register if you do not stay in Ireland for less than 90 days.
If your permission to stay in Ireland is granted a stamp will be put in your passport which will indicate the type of permission you have been granted; the various stamp types indicate
What you can and cannot do in Ireland
How long you are permitted to stay
Stamp 0 is a low level permission which allows a person to stay in Ireland for a specific and limited period of time.
You must be financially self sufficient and you cannot avail of any State benefits on this permission.
There are 3 types of persons who may qualify for stamp 0:
Elderly dependent relatives
Persons of independent financial means (threshold is generally €50,000 per person per year)
Visiting academics-they must be paid from outside the state and work here for less than 9 months
Excluded categories of persons are:
Individuals who are unlawfully present in the State
Individuals who are the subject of a deportation order
Individuals who have been served with a Notification to Deport (15 day letter)
If you are a visa required person you must make an entry visa application.
How to obtain Stamp 0 and register as a non-EEA national
Firstly, you must apply for permission in writing to
Residence Division (Unit 2) Irish Naturalisation & Immigration Service Department of Justice and Equality 13-14 Burgh Quay Dublin 2
You will need certain documents to go with your application-for example, reason for the request, any Irish connections, copy of your passport, etc.
If you are successful you will receive a letter of permission from the INIS (Irish Naturalisation and Immigration Service) and this letter will indicate whether your permission is renewable or not.
You must also register at your local immigration office and if your permission is renewed you must renew your registration.
Live with your spouse, family member, partner, or child
Marriage to an Irish spouse does not confer an automatic right to live in Ireland. You must apply and fulfill the criteria set out in the policy document.
Having an Irish civil partner does not confer an automatic right either; you can learn more about civil partnership and immigration to Ireland here.
How to apply
There are 2 possible circumstances:
You are a non EEA national who is already legally in the State. If this is your situation you must attend at Garda National Immigration Bureau Registration office with the following documentation:
Your original marriage/civil partnership certificate Your original passport Your Irish spouse’s/civil partner’s original passport Evidence of your joint address
You are a non EEA national, living in Ireland but who is not legally in the State; in this situation you must apply to Spouse of Irish National Unit Residence Division Irish Naturalisation & Immigration Service PO Box 12695 Dublin 2
You will also need other documentation such as
Completed, signed and dated (by applicant and Irish National) Application Form
Your original marriage/civil partnership certificate
Your original passport(s) and birth certificate
Your Irish spouse’s/civil partner’s original passport and birth certificate (Passport Cards are not acceptable)
Divorce papers from applicant and/or spouse (if applicable)
Evidence of Private Medical Insurance in respect of non EEA national
Evidence showing that Irish spouse/civil partner (sponsor) meets the published financial criteria set out at 17.2 of Policy Document on Non-EEA Family Reunification (e.g. P60s for last 3 years, bank statements for previous 6 months, P21 Revenue Commissioner statements, recent pay slips, financial accounts, etc – this list is not exhaustive)
If you have an existing deportation order your application will not be considered. You must apply to have the deportation order revoked to this office:
Acknowledgement Unit, Repatriation Section, Irish Naturalisation and Immigration Service, 13-14 Burgh Quay, Dublin 2
During the application process you cannot take up employment unless you are on a work permit.
If your application is successful you will be permitted to live in Ireland for 36 months and you may be granted a Stamp 4 status which will allow you to reside and work in the State without the requirement of a Work Permit.
You must also attend, with your spouse, at your local Garda National Immigration Bureau Registration office to be registered as resident in the State on the basis of being the Spouse of an Irish National or the Civil Partner of an Irish national.
If your circumstances change-for example separation or divorce-you must notify your Garda National Immigration Bureau Registration Officer within 7 days.
Live with your de facto long term partner
If your partner is a long term de facto partner, but not a Civil Partner or spouse, the application is slightly different as there is a scheme, De Facto Partnership Immigration Permission (DFPIP) to allow genuine long-term schemes to continue.
What is a de facto partner for the purposes of immigration in Ireland?
For immigration purposes a person may be considered the De Facto Partner, opposite or same sex, of another person if:
they have a mutual commitment to a shared life to the exclusion of all others akin to a marriage or civil partnership in practice though not in law and the relationship between them is genuine and continuing
and they live together or do not live separately and apart on a permanent basis and they are not related by family.
A de facto partner can be same sex or opposite sex.
The permission to reside in Ireland on this basis is dependent on the relationship continuing; if it ends, the permission also ends.
You need to note that applications from persons with an existing Deportation Order or a Notification of Intention to Deport under Section 3 of the 1999 Immigration Act will not be considered.
Live with your child
Applications for permission to remain in the State on the basis of parentage of an Irish Citizen Child from a Non-EEA parent who does not have an existing immigration permission must be submitted on the Irish Citizen Child Application Form to Residence Unit 4, INIS, 13/14 Burgh Quay, Dublin 2.
If you are a parent with an existing right of residency (stamp 1 or stamp 2 or stamp 3) can go to your local immigration office to apply to have your stamp upgraded to a stamp 4 which would allow you to take up employment.
You will need
your own Passport,
your current Irish Residence Permit (IRP) or GNIB Card,
your child’s Irish Passport,
your child’s Birth Certificate documentary evidence of your address in the State documentary evidence of your child’s address in the State (eg doctor’s letter or school letter)
If you do not currently have permission to live in the State you must apply for a right to reside and work in Ireland. Applications will be examined on case by case basis having regard to the individual circumstances and information set out in the application form.
Firstly, your application must be in accordance with the criteria and policy set out in the Non EEA family reunification document. If your application is successful you will receive a letter setting out the details of your permission and you must then register at your local immigration office.
If you are leasing a commercial property you may encounter a ‘side letter’ in addition to the lease itself.
A side letter in such a situation is used by a landlord and tenant-as it is signed by both parties-to modify the terms of the lease itself, generally on a temporary basis. This would be done to confidentially vary the terms of the lease and prevent any knock on comparable consequences for the landlord from other tenants in a development.
An example of this would be a concession in relation to rent for a temporary period of time.
This concession would not be in the public domain as the rent might be if the lease was lodged in the Registry of Deeds or details registered with the Commercial Lease Register of the Property Services Regulatory Authority.
Some points to consider
The time period or special event which is to be covered by the side letter should be clear if the concession is to be temporary and for the particular lessee
If the lease itself contains an ‘entire agreement’ clause then the side letter should be mentioned in the entire agreement statement
If the side letter is agreed and granted at a different time from the lease itself then there should be some consideration given for the side letter, even a nominal sum
The landlord needs to be careful that the granting of the side letter will not inadvertently let a guarantor off the hook
Is this side letter to be binding on a future landlord if the sells the building? Is the side letter to be personal to the existing lessee and not assignable to a new tenant?
The side letter will be terminated if any provisions of the lease are breached-for example, late payment of rent
A problem may arise if the breach of the lease leads to the side letter being set aside as this may amount to a penalty for the tenant which is disproportionate to the loss suffered by the landlord for the breach. If that is the case the side letter may be unenforceable if challenged.
Provided the penalty is proportionate the side letter is likely to be enforceable, however.
Side letters will usually bind a landlord’s successor in title and should, therefore, be disclosed to a any future purchaser. For this reason any side letter should be kept with the lease so that it is disclosed on sale. If it is not disclosed a future purchaser will probably succeed in a claim for misrepresentation and the cost of complying with what has been agreed in the letter.