Law Society of Ireland Manual Landlord and Tenant Law

by Brennan, Gabriel; Brodie, Sean; Linnane, Michelle; Soden, David

• ISBN13: 9780199280254
• ISBN10: 0199280258
• Edition: 3rd
• Format: Paperback
• Copyright: 2006-06-29
• Publisher: Oxford University Press

Summary

This new edition has been fully revised and updated in the light of new case law and legislation. A number of new precedents have been included, offering a practical approach to the subject, enabling students to familiarize themselves with documentation they will encounter in practice.

Author Biography

Gabriel Brennan is a Solicitor, Lecturer, and course co-ordinator of the Professional Practice Course, the Law Society of Ireland.

Table of Contents

Preface	v
Authors	vii
Acknowledgements	ix
Table of Statutes	xix
Table of Rules and Regulations	xxv
Table of Cases	xxvii
Introduction	1	(11)
General	1	(1)
Definitions	2	(3)
Historical Background and Early Legislation	5	(4)
Historical background
The seventeenth century
The eighteenth century
The nineteenth century
Recent Legislation	9	(2)
The twentieth century
Landlord and Tenant (Amendment) Act, 1980
Landlord and Tenant (Amendment) Act, 1994
The twenty-first century
Creation of Relationship of Landlord and Tenant	11	(1)
Recommended Reading	11	(1)
Categorisation of Tenancies	12	(6)
Introduction	12	(1)
Fixed Term/Term Certain	13	(1)
Periodic Tenancies	13	(1)
Tenancy at Will	14	(1)
Tenancy at Sufferance	15	(1)
Statutory Tenancy	15	(1)
Tenancy by Estoppel	15	(1)
Temporary Convenience Lettings	16	(1)
Conclusion	17	(1)
Licences	18	(15)
Introduction	18	(3)
Bare Licence
Contractual licence
Licence coupled with an interest
Estoppel licences
Characteristics of a Licence	21	(4)
Example Licence	25	(2)
Example of Licence of Concession Area	27	(5)
Conclusion	32	(1)
Other Relationships Involving Land	33	(9)
Introduction	33	(9)
Servant/employee
Lodger/guest
Hirer
Conacre
Agistment holder
Franchise
Rights of Residence
Caretaker
Taking Instructions/Essential Contents of a Lease	42	(14)
Taking Instructions	42	(1)
Instruction Sheet	43	(3)
Pre-lease Enquiries	46	(1)
Covenants and Conditions in a Lease	46	(1)
Essential Contents of a Lease	47	(1)
Date of commencement of the term
Parcels
Habendum
Reddendum
Practical Procedure when Drafting a New Lease	48	(4)
Introduction
What happens in practice
Agreement for Lease	52	(1)
The limitations of an agreement for lease
Residential Tenancy Agreements	53	(3)
The Residential Tenancies Act, 2004	56	(22)
Introduction	56	(1)
Commencement	56	(1)
Application of the Act	57	(1)
Interpretation of the Act	57	(2)
Definition of `dwelling'
Definition of `tenancy'
Definition of `Part 4 tenancy'
Definition of `public authority'
Other section 4 definitions
Definition of `landlord' `tenant' and `lease'
Service of notices	59	(1)
Tenancy Obligations of Landlords and Tenants---Part 2	60	(3)
Part 2, Chapter 1---Landlord's obligations
Part 2, Chapter 2---Tenant's obligations
Offences---Section 9	63	(1)
Redress under Part 6---Section 119	63	(1)
Rent and Rent Reviews---Part 3	64	(1)
Security of Tenure---Part 4	65	(7)
Termination of Part 4 Tenancies
Further Part 4 Tenancies
Overview of Termination Periods
Part 4 and Multiple Occupants
Part 4---Miscellaneous Matters
Termination---Notice Periods and Other Procedural Requirements---Part 5	72	(6)
Scope and interpretation
Contents of the termination notice
Period of notice to be given
Additional requirements and procedures where the tenancy is sub-let
Miscellaneous matters
Time limit for disputing a notice of termination
Prohibitions under section 184
Private Residential Tenancies Board	78	(6)
Introduction	78	(1)
Establishment and Composition of Board	78	(1)
Functions of Board	79	(5)
Resolution of disputes
Registration of particulars
Advice to the Minister on policy
Development and publication of guidelines for good practice
Repairs	84	(14)
Introduction	84	(1)
The Landlord's Position	85	(5)
Common law
Statute
The Tenant's Position	90	(1)
Common law
Statute
The tenant's position generally
Sample Covenants to Repair	90	(3)
Residential
Commercial
Interpretation of covenants to repair
Landlord and Tenant (Amendment) Act 1980, s 65	93	(1)
Practical effect of s 65
Wilful waste
Express Covenants: General Principles	94	(1)
Whelan v Madigan	95	(1)
Remedies	96	(2)
The landlord's position
The tenant's position
Termination	98	(22)
Introduction	98	(1)
Notice to Quit	99	(7)
Situations where a notice is not required
Who may serve the notice?
Form and contents of the notice
Length of notice
Upon whom and how should the notice be served?
Waiver of notice
Sample notices to quit
Forfeiture	106	(6)
General
Basis for forfeiture
Sample proviso for re-entry
Section 14 and statutory restriction on right to forfeit
Forfeiture---the procedure
Relief against forfeiture
Other Forms of Termination	112	(5)
Effluxion of time
Merger
Demand for possession per Deasy's Act, 1860, s 86
Decree or warrant for possession per Deasy's Act, 1860, s 78
Execution of a judgment or decree for possession per Deasy's Act, 1860 ss 52 and 66
Surrender per Deasey's Act 1860, s 7
Occurrence of a stated event
Court order
Premises being used as a brothel
Derelict sites and dangerous premises
Exercise of an option
Liquidator's disclaimer per the Companies Act, 1963, s 290
Legal Proceedings	117	(1)
Ejectment civil bill on title based on forfeiture
Ejectment for non-payment of rent
Ejectment civil bill for overholding
Ejectment for deserted premises
Summary of Practical Steps	118	(2)
Statutory Reliefs	120	(37)
Introduction	120	(3)
Tenements: s 5
Right to a New Tenancy	123	(12)
Business equity
Long possession equity
Improvements equity
Terms of a new tenancy
Restrictions on right to a new tenancy
Procedure for claiming a new tenancy
Compensation for Improvements	135	(2)
General principles
Improvement notice
Compensation for Disturbance	137	(1)
Practical Steps	138	(1)
Provisions Relating to Covenants in Leases	138	(2)
Covenants against alienation: s 66
Covenants restrictive of user: s 67
Covenants against making improvements: s 68
Prescribed Forms	140	(17)
Form No 1
Form No 2
Form No 3
Form No 4
Form No 5
Form No 6
Form No 7
Form No 8
Form No 9
Form No 10
Form No 11
Form No 12
Form No 13
Form No 14
Ground Rents	157	(49)
Historical Background	157	(1)
Right to Buy Out Freehold	158	(9)
Introduction
Test under the 1967 Act
Test Under the 1978 Act
Restrictions on the right
Right to a Reversionary Lease	167	(2)
What is a reversionary lease?
Application to obtain a reversionary lease
Restrictions on right to a reversionary lease?
Why claim the right to a reversionary lease?
Procedure for Purchasing Fee Simple	169	(9)
1967 Act procedure
1978 Act procedure
Registration
Merger
Practical Steps	178	(1)
1967 Act procedure
1978 Act procedure
Vesting Certificate Applied for but not yet issued	179	(1)
Calculation of Purchase Price on Arbitration	179	(3)
Expired Lease
Yearly tenancy or lease with more than fifteen years to run of residential premises less than one acre
Lease with less than fifteen years to run or rent subject to review within the fifteen years of residential premises less than one acre
General
Abolition of Ground Rents: No 1 Act of 1978	182	(2)
Prescribed Forms	184	(16)
1967 Act procedure
1978 Act procedure
Sample Notice of Application for Arbitration to the County Registrar	200	(2)
Ground Rents Purchase Scheme Land Registry Explanatory Leaflet	202	(4)
Commercial Leases	206	(22)
Introduction	206	(2)
`FRI' Lease
Shopping centres
Procedure
Service Charge Clauses in Commercial Leases	208	(4)
General
Determining the amount of the service charge
Services to be included in the lease
Potential areas of dispute
Certification of the charge
Apportionment of charge among tenants
Service charge components
Rent Review Clauses in Commercial Leases	212	(5)
General
Time is not of the essence
Provision for independent review
Basis for reviewing rent
Interpretation of rent review clause
Sample clause re basis for review
Recording the revised rent
Alienation (Assignment and Sub-letting)	217	(5)
General
Restrictions
Statutory/common law
Assignment
Sub-letting
Partial assignment or sub-letting
Matters to be dealt with in relation to assignment proposed assignments
Change of User	222	(2)
General
Statute/common law
Insurance	224	(2)
Who effects the insurance---and why?
What is the amount of the insurance and the rate?
What are the insured risks?
General checklist for insurance clause
Subrogation
Repair	226	(2)
Advising the client
Value Added Tax	228	(17)
General	228	(5)
Background
How VAT operates
Accounting for VAT: s 19
Who must Register for VAT?
Taxable supplies of goods and services
Input credit: s 12
Rates of VAT
Records and invoices
Basis of accounting for output tax
Property	233	(12)
When property is liable to VAT
Sale of freehold interest
Creation of a new lease of ten years or greater (long-term lease)
Capitalised value and economic value
`Reverse charge mechanism'
`Two supplies'
Reversionary interest
Short-term lettings
Self-supplies of property
Assignments and surrenders
`Subsequent' supplies
Building sites
`Interest' in the context of VAT on property
VAT requisitions on title and standard VAT clause
Housing (Private Rented Dwellings) Act, 1982	245	(5)
Housing (Private Rented Dwellings) Act, 1982	245	(5)
`Controlled dwellings'
Housing (Private Rented Dwellings) Act, 1982
Role of the rent tribunal
Statutory protection
Practical concerns
Entitlement under the 1980 Act (as amended)
Entitlement under the ground rents legislation
Implications
Appendices	250	(91)
Pre-lease Enquiries or Checklist	250	(7)
Form PRTB1 Tenancy Registration	257	(4)
Registration of Tenancies	261	(3)
Notes on Service Charge Clauses in Commercial Lease	264	(6)
Standard Rent Review Clauses	270	(7)
Agreement for Lease of an Entire Building in Course of or about to be Constructed with Guarantee	277	(10)
Short Term Lease for Letting of an Entire Building at Fixed Rent with Guarantee	287	(21)
Long Term Lease for Letting of an Entire Building with Five Yearly Rent Reviews, Guarantee and Break Option	308	(22)
New VAT Clause in Contract for Sale	330	(3)
Requisitions on Title---VAT Explanatory Memorandum	333	(5)
VAT Requisitions	338	(3)
Index	341