Landlord and Tenant Law
The Residential Tenancies Acts 2004-2016 are intended to ensure the regulation of residential tenancies. Under the Acts, where a tenant has enjoyed at least six months’ continuous occupation, he or she will be entitled to a six-year tenancy which can only be terminated by the landlord for specific limited reasons and in accordance with procedures set out in the Act. This tenancy is known as a Part 4 tenancy. Section 11(3) of the Land and Conveyancing Law Reform Act, 2009 provides for a leasehold as a form of legal estate.
Termination of Tenancy by the Landlord
A tenancy can be terminated, for any reason, by the landlord subject to giving the required period of notice as required by statute, provided that notice is served in a specified time period. Otherwise a tenancy can only be terminated, for specific reasons which are stated in the legislation. As per the table included in section 34(a) of the Residential Tenancies Act, 2004, these reasons include:
- Failure by the tenant to comply with his or her obligations under the tenancy.
- The dwelling is no longer suitable for occupation by reason of ‘the size and composition of the occupying household’.
- The landlord intends, within three months after the termination of the tenancy, to execute a contract for sale of his entire interest, ‘for full consideration’, in the dwelling or in the property that contains the dwelling.
- The landlord requires the dwelling, or the property that contains it, either for his own occupation, or occupation by a member of his family.
- The landlord intends substantially to refurbish or renovate the dwelling, or the property that contains it, in a way that requires it to be vacated.
- The landlord intends to change the use of the dwelling, or of the property.
We can advise you, as a tenant or a landlord, about the rights conferred and the obligations imposed on you by statute. We have a wealth of experience and knowledge in advising both landlords and tenants. Practical and expert advice is essential prior to entering into any leasehold or tenancy agreement to ensure that you are fully aware of the consequences of your prospective legal agreement. In the case of a dispute or disagreement, it is important that we consider the distinction between a lease and a licence. We must then assess the type of lease created and explore other relevant aspects in order to determine your rights. We will provide you with a professional, thorough service in order to ensure we achieve the most successful outcome for you.
The Landlord and Tenant (Amendment) Act, 1980, applies to ‘tenements’- lands wholly or partially covered by buildings. Section 3 of the 1980 Act defines a Business as “any trade, profession or business, whether or not it is carried on for gain or reward.”
Part II of the Landlord and Tenant (Amendment) Act 1980 provides for a right to a new tenancy on the termination of an earlier one, provided the claimant satisfies certain conditions.
The business tenant must show one of the following:
- business equity
- long occupation equity
- improvements equity
Business equity requires the tenant to have been in business for a required number of consecutive years. Long occupation equity is provided for in Section 13(1)(b) of the 1980 Act, which requires that where a tenement has been in occupation for 20 years or more by the tenant or his predecessors-in-title, the tenant is entitled to a new tenancy. Under section 13(1)(c) of the Act, where a tenant has carried out improvements for which he is entitled to compensation under Part IV of the Landlord and Tenant (Amendment) Act 1980 and those improvements account for not less than one-half of the letting value of the tenement, then the tenant is entitled to a new tenancy. While the terms of a new tenancy under the aforementioned headings should be agreed by the tenant and landlord, if the parties cannot agree, the Circuit Court will be responsible for fixing the tenancy period. The maximum period that the Circuit Court can fix a tenancy for is thirty five years.
Commercial Tenancies have evolved over time from what was a simple document to what is now a much more complex document, known as a ‘FRI’ lease- a full repairing and insuring lease. In addition to leases being much more complex, it is now common practice for your solicitor to issue side letters in order to vary the terms of the standard lease. It is important for you to consider various terms some of which may include:
- The type of letting- with a single letting of an entire building the tenant can be liable for all repairs and outgoings. With a letting of part of a building, it is common practice for the landlord to maintain the structure as well as the common areas, however the tenants cover this cost by way of payment of a service charge.
- Insurance- it is vital that the landlord retains control of the insurance of the building in order to protect his/her investment.
- The amount of the Service Charge- this must be fair and reasonable.
- The Services to be included in the Lease- these should be clearly laid out in the Lease in order to avoid a future dispute.
- Rent Review Clauses – due regard must be given to the wording to ensure that the rent review in operable.
- Restrictions on Assignment and Sub-letting.
- Break Options.
- Repair Obligations.
It is important that both landlords and tenants obtain specific and distinct legal advice to ensure both parties are fully aware of the legal rights and obligations that may arise by the creation of commercial leases. Commercial leases can be lengthy, complex documents. At Rolleston McElwee, we have experience advising both landlord and tenants. We can advise you in relation to the most appropriate clauses and terms to be included in order to best protect your interests.