Landlord + Tenant Law Flashcards
Lease/tenancy:
The landlord is the person who leases the property and the tenant is the person who rents the property, their agreement called a tenancy or a lease. A tenancy/lease is therefore an arrangement whereby the tenant receives a proprietary interest in the prop and exclusive possession thereof. The tenant receives leasehold as opposed to freehold title of the property.
Types of lease/tenancy:
a tenancy can be oral or written.
Section 4 Deasys Act (1860 Act), an oral tenancy for less than a year is enforceable, longer than that, it must be in writing. You can also have an equitable lease when there is sufficient compliance with the Statute of Frauds 1695 or where there is evidence of part performance which may support an application for specific performance (these concepts are covered in Chapter 1).
A tenancy can be for a fixed term or roll from year to year (unless terminated).
A tenancy can arise under the Landlord and Tenant (Amendment) Act 1980 (1980 Act) for commercial leases, and under Part 4 Residential Tenancies Act 2004 (RTA 2004 as amended, most recently in June 2019). The main legal rights and responsibilities as a tenant come from landlord and tenant law (statute law), and the lease.
Leases or other tenancy agreements cannot take away from your statutory rights under the legislation but can of course go further than the legislation.
Commercial leases
Distinction to residential leases:
commercial lease is entering into a lease for a commercial property with longer terms and more responsibilities for tenants. These leases are not standard like residential leases i.e. they are bespoke depending on the situation. There will also be service charges, insurance and commercial rates which are not applicable in a residential scenario. This lease will include a rent review clause (which may not be upwards only since Section 132 LCLRA09, this applies to both residential and commercial leases). There will usually be a clause which restricts assignments, subletting, and transfer of the lease to another party which consent cannot be unreasonably withheld (i.e. without good reason). Subletting is where the tenancy is made to another party than that to the lease. Assignment is where a tenant transfers the entire tenancy to a third party. Both can only take place with the consent of the landlord.
Commercial leases TOPICS
Distinction to residential leases:
Alienation
Common reasons for alienation:
Reasonableness:
Alienation
Section 66 1980 Act regardless of what prohibitions are in a lease in respect of assignment or sub-letting (alienation), the landlord is bound by these provisions. A landlord cannot unreasonably (explained below) withhold his consent when his tenant seeks to create a sublease or assignment. Irish Glass Bottle: onus is on the lessee to provide the premises is a tenement and that the consent was unreasonably withheld, the lessor must consider the change of use on its merits and cannot impose a blanket refusal, but they can consider their own interest in deciding whether or not to give consent (Murphy v O’Neill). Just because the lessee is not trading well, does not mean consent (OHS v Green). Rice v Dublin Corp: landlord may state grounds of refusal to cts even if none previously given to the tenant.
• Common reasons for alienation:
(i) retain control over occupier of property (protect investment); prevents fragmentation;
(ii) due to management and administration problems;
(iii) control tenants in shopping centre;
(iv) ensure that the new tenant is as “sufficient” as the assignor.
• Reasonableness:
no statutory definition of reasonableness in this context, the onus lies on the tenant to bring an application to ct and prove that consent has been unreasonably withheld. It would be extremely foolish to execute an assignment in the absence of consent or a court order. Not only will the assignor remain liable under the lease, they could be sued separately for breach of covenant not to assign without consent. This could lead to forfeiture. Conversely, bringing an action to get consent will be both costly will create large delays.
Burns v Morelli: reasonable to withhold consent in the absence of evidence of solvency of proposed tenants and guarantors.
International Drilling test is: (i) purpose is to protect landlord from having premise used or occupied in an undesirable way or by an undesirable tenant; (ii) landlord cannot refuse on grounds that have nothing to do with the lease, i.e. to gain a collateral advantage; (iii) onus of proving consent is unreasonably withheld lies on tenant; and (iv) landlord does not have to prove that reasons are justified, just that they reasonable.
Burns v Morelli:
reasonable to withhold consent in the absence of evidence of solvency of proposed tenants and guarantors.
International Drilling test is:
(i) purpose is to protect landlord from having premise used or occupied in an undesirable way or by an undesirable tenant;
(ii) landlord cannot refuse on grounds that have nothing to do with the lease, i.e. to gain a collateral advantage;
(iii) onus of proving consent is unreasonably withheld lies on tenant;
(iv) landlord does not have to prove that reasons are justified, just that they reasonable.
Residential leases TOPICS
- Applicability of 2004 Act (as amended):
- Section 12 2004 Act obligations of a landlord (among others):
- Section 128 2004 Act obligation of landlord to register with RTB:
- Section 16 2004 Act obligations of a tenant
- Section 28 2004 Act Statutory protection Part 4 tenancy after 6 months tenancy:
- Applicability of 2004 Act (as amended):
make sure the 2004 Act applies i.e. Section 3 2004 Act applies to every dwelling, the subject of a tenancy. Section 4 2004 Act defines a dwelling as a “property for rent or valuable consideration as a self-contained residential unit […]”. A tenancy is defined at Section 5 2004 Act as a “periodic tenancy and a tenancy for a fixed term, whether oral or in writing or implied, and where the context so admits, includes a sub-tenancy and a tenancy or sub-tenancy that has been terminated”.
- Section 12 2004 Act obligations of a landlord (among others):
- tenant is to have peaceable and exclusive occupation of the dwelling;
- landlord must carry out all structural repairs that are needed-does not apply if the repair was necessitated by a breach of the tenant’s duties under Section 16 (tenants obligations- see below);
- carry out all repairs and replacements of the interior of the building to maintain them to the standard they were at the commencement of the tenancy;
- have insurance against damage to and loss and destruction of the dwelling;
- return or repay the deposit promptly;
- notify the tenant of any authorised agent acting on behalf of the landlord
- reimburse the tenant for all reasonable and vouched expenses incurred by carrying out repairs that are the responsibility of the landlord.
- Section 128 2004 Act obligation of landlord to register with RTB:
there are 2 registers, a full register and a published register, which does not disclose identities or rent details.
- Section 16 2004 Act obligations of a tenant
- pay the rent on the date due and any taxes or charges;
- ensure that no act/omission leads to a breach of the landlord’s obligations;
- allow inspections are reasonable intervals;
- notify the landlord/agent of any defect that requires repairing;
- allow reasonable access for the carrying out of works for which the landlord is responsible ;
- do not do any act that would cause a deterioration in the condition of the dwelling, save for normal wear and tear;
- not to behave anti-socially;
- do not behave, or allow visitors to behave in a way that would result in an invalidation of the insurance;
- not to assign or sub-let the tenancy without written consent of the landlord (which may be withheld);
- not to improve the dwelling without written consent of the landlord. If this goes to repairing, painting or decorating, such consent may not be unreasonably withheld. If it goes to any other matter, the landlord has full discretion including changing the locks and making structural additions; and
- not to use the dwelling other than as a dwelling, save with written consent of landlord notifying the landlord in writing.
- Section 28 2004 Act Statutory protection Part 4 tenancy after 6 months tenancy:
For tenancies that began before the 24 December 2016, after the first 6 month probationary period of the tenancy the tenant secures the right to remain in the property for a further 3 and ½ years and the tenancy is referred to as a ‘Part 4 tenancy’. For tenancies that began after the 24 December 2016, after the first 6 month probationary period of the tenancy, the tenant secures the right to remain in the property for a further five and a half years and the tenancy is referred to as a ‘Part 4 tenancy.’ A ‘further Part 4 tenancy’ begins once the initial ‘Part 4 tenancy’ has finished. From the 24 December 2016, when a ‘further Part 4 tenancy’ commences, it lasts for 6 years for all tenancies. A fixed term tenancy is a tenancy that lasts for a specific amount of time. A ‘Part 4’ tenancy runs alongside a fixed term tenancy, which means the tenant shall, after a period of 6 months and as in the normal course, become entitled to the provisions of a ‘Part 4’ tenancy (i.e. they can stay in the property for 6 years). This simply means that irrespective of the length of the fixed term lease, a tenant has an entitlement to remain in the dwelling for up to 6 years and the landlord can only terminate the tenancy on limited grounds (see below Section 34 2004 Act reasons for termination).
