Leasehold Flashcards
Give background on leasehold
Only other estate recognised in land although rights are significantly less than that of a freehold.
Also another diff to freehold is that wills not usually made cuz person tends to outlive the lease
Land law tried to address imbalance of bargaining power between landlord and tenant so regulates it but also allows for contractual freedom
State 2 legislation that define relationship between landlord and tenant
Section 3 of deasys act
Section 11(3) of LCLRA 2009
Section 3 of deasys act
Relationship between landlord and tenant exists when a contract either expressed or implied has been entered into
Not upon tenure or service
Doesn’t provide for revisionary leases
Section 11(3) LCLRA 2009
Elaborated on defn in deasys act
Lease can be entered into at any time whether present or future
Can be revisionary
Can be entered into even if the term of lease is uncertain
Lessor v lessee
Owner of freehold leasing
Person benefiting from the lead hold estate
Assignor/ assignee
Assignor - person in a lease that assigns it to someone else
Assignee- person being assigned the lease
Assignee pays rent to assignor who then pays it to lessor or pays it to lessor direct depending on circumstance
Sub-lessor/ sub-lessee
Person who is in a lease and leases someone under that- must be for duration less than actual lease
Person being sub-leased to
Headlessor/ headlessee
Freehold estate owner
Leasehold estate possessor- if lease is terminated sublease terminated cuz it’s dependent
Periodic tenancy
Tenancy that lasts for a defined period of time but automatically renews unless either party gives notice to terminate
Fixed term- tenancy
Tenancy for defined amount of time ie 6 months a year etc
No automatic renewal
Lease terminates when that period ends
Implied tenancy
Tenancy will be implied if there’s evidence of continuous possession/ exclusive possession and the payment of rent.
Révisionary lease
Lease made for the future
What legislation concerns the creation of a leasehold estaye in terms of formalities
Section 4 of deasys act
Exemption- section 9 of deasys act
Section 4 of deasys act
Provides that a less or less than a year does not have to be written or executed by deed, it can be oral
A lease that is more than a year or a fixed term lease must be in writing
Section 9 of deasys act
Leases that are assigned must be in writing regardless of whether they’re more than a year or not
Equity and contract for lease
State case
Doctrine of anticipation
Walsh v Lonsdale:
Equity anticipates creation of tenancy after contract has been signed
Not reliant on execution of deeds for equitable rights to be passed
Def cannot complain of agreement that would’ve been the same if deed was executed
What section concerns Walsh v Lonsdale
Section 51 of LCLRA
Section 51 of LCLRA
A contract for sale or purchase cannot be enforced unless in writing and consent by both parties
Distinguish between a lease and license
License: looks like a lease but rights are weaker
License- personal right given for permission to do something
Lease- right of individual over property
Name cases that distinguish between lease and license and explain
Streets v mountford
- will be considered lease if:
Exclusive possession
Possession subject to rent
Irish cases commercial context:
Gaten motor v continental oil-
Lease was about to end and landlord refused to renew until a week after
Griffin j accepts that courts have to look beyond label of agreement.
Need to look at whole transaction as well and in this instance both intended to create a license for a week
Held: license
Irish shell v Costello
Petrol station
For lease:
Had keys
Monthly visits by representative of landlord
Inspection of equipment
All could be considered as restrictions on leasehold
Further:
Denial of Exclusive possession clause taken out
Paying of rent
Maternity hospital v Mc Gorman
Coffee shop in hospital
License
Smirh v Irish rail
Newsagent under Tara street
Lease
ESSO v 911 retail
Deli in garage
Paternalism v contractual freedom
Siadochan v o mahony
Leasehold of farm
Labelled as leasehold but :
No characteristic of leasehold
No paying of rent
Concerns of exercise or undue power over vulnerable party
License and not lease
What’s a covenant?
A term of leasehold that’s fundamental for it not to be terminated
Types of covenant
Express
Implies
Express covenant
Written in contract
Tenant- obligation to pay rent or utilities
Negotiated between landlord and tenant
Common law; there was absolute power of landlord to withhold consent
Needed to be changed
Which act changed express covenants
Section 66 of landlord tenant amendment act 1980
S66 of landlord and tenant act - applicable to commercial only
Provides that where person is trying to assign/ sublet etc and agreement says landlord has absolute power, it turns it into landlord has power to withhold subject to reasonableness
Also for change of use/ alteration/ improvement to property
Reasonable withholding of consent
State cases and explain
White v carlile trust- tailor wanting to be sweet shop
Held: McWilliam J said onus is on tenant to prove landlord withholding unreasonably and threshjild very high- has to be arbitrary
Green property v Shalaine modes- hardware store turning into pop up shop for Christmas
OSH v green property- unit in shipping centre and dunnes goes there. No longer a lot of customers and wants to assign lease to financial company
Landlord says no: too many already and window blockage ruins business
Dunnes V Irish Life Assurance
Wanted to go from retail to supermarket
Landlord said no doesn’t match the modern changes they want
Held: unreasonable;
Didn’t consider benefits of diversity of stores
Ulterior motive trying to get dunnes out
Which legislation concerns assigning subletting change of use for residential tenancies
Section 16 k- m of residential tenancies act 2004
Section 16 k- m of residential tenancies act 2004
Provides that landlord has an absolute power to withhold consent for assigning and subletting
Power to withhold consent for change of use/ improvements etc subject to reasonableness
Case law on reasonableness can only apply to change of use etc in residential setiring
Implied covenants for landlord
Quiet enjoyment
State of premisis
Quiet enjoyment
Landlord can’t interfere with possession by leaseholder, ie constantly ringing them or coming unannounced
What legislation talks about quiet enjoyment
Section 41 of the deasys act
Section 41 of deasys act and state cases
Prohibits landlords interfering with the peaceable enjoyment of the tenant to the property
O’Donnell v Ryan- not a positive duty but an obligation
Kenny v preen through creation of leasehold right to possession conferred and right to peaceful enjoyment implied
Whelan v Madigan-
Breaching implied right of quiet enjoyment has to be a physical interference
State of premises
Name rule and case
Common law rule states that furnished property has to be havitalble for tenant
Siney v dublin CC
Unit had water leaking and mold so compelled to leave and sued
Held: landlord had an obligation to make sure property was habital for humans
What legislation provides implied covenants of landlords
Section 12 of residential tenancies act
Section 12 of residential tenancies act
Landlord has obligation to :
- A duty to keep premises in good structural repair.
- A duty to deal with any issues like dampness on an ongoing basis whilst the leasehold
endures. - A duty to ensure that there’s a u=lity connec=on for all key u=li=es.
- A duty to keep the property insured- no obligationon to insure contents.
- A duty to pay back any deposit that a tenant provides on a reasonable basis.
What legislation concerns implied rights of tenants
Section 42 of deasys act
Section 16 of residential tenancies act
Section 42 of deasys act
Duty for tentant to:
Pay rent
Maintain stability of property
Leave peacefully when lease ende
Section 16 of residential tenancies act
Expanded deasys act
Duty to:
Not engage in antisocial behaviour
Not damage property except wear and tear
Pay rent
Not assign/ sublease without written consent
Not change use/ alter property without consent
Alert landlord of any faults and allow landlord to fix them
Notify of any change of occupants
Enforceability of leasehold covenants
The common law rule was that even if u assigned the lease, you’d still be bound by the covenants under that lease, ie. The landlord could demand that you pay rent
Ireland was one of the fastest countries to amend this.
What legislation concerned the enforceability of leasehold covenants
Section 12 and 13 of deasys act
Section 16 of deasys act
Section 12 and 13 of deasys act
If party’s to a leasehold estate change, covenants remain enforceable
Section 16 of deasys act
If someone assigns a lease- they are no longer bound/ liable for the lease covenants ie they’re discharging their obligations
What are the remedies for breach of covenant
Damages
Forfeiture- only commercial
Termination
Damages
Name case
Attractive for when you want to address a breach of covenant but do not wish to end the lease.
Parol v Friends pension
Big supermarket in shopping centre wirh ‘stay open’ clause cuz if it was open ppl would come to all the other smaller stores. It closed and as a result all the other stores closed. Sued for loss of rent
Held: claim successful- didn’t want to end lease just wanted to remedy the temporary breach of contract
Forfeiture
When a party breaches covenant, lease can be forfeited and lease ends
Legislation on forfeiture
Section 14(1) of the conveyancing act 1881
Section 14 of conveyancing act 1881
Party complaining of breach must
Give notice of the breach to party in beach
Specify the breach
Request remedy
apply for compensation
This exists to allow party in breach the opportunity to remedy their action without forfeiting the lease
What are reliefs
Discretionary order by courts to deem that nothwithstanding the breach in covenant, forfeiture should still apply
Makes landlords more active in notice period so tenant doesn’t seek relief
Apply under 14(2)
Does not apply to nonpayment of rent
Equitable reliefs
Non-payment of rent
Common law: if non payment of rent and rent demanded and still no avail, apply to courts to get the lease forfeited
Equity- look at fairness of forfeiting lease on basis of non-payment of rent on a case by case basis
Case on equitable relief
Whipp v makey- Equitable relief will usually be granted if the tenant shows that they can pay the overdue rent and pay any interest that is required to reflect the delay in payment. It’s a solu=on for a business that has a temporary cashflow problem and not for a business that has a fundamental inability to make rent.
Recovering possession of leasehold estate
State cases
Sweeny v Powerscourt shopping centre- non-payment of rent and demanded and still no with no judicial order asserted that lease had been forfeited and in the night went and took repossession
Held: okay cuz it was peaceful and notice was given
BOI v Lady Lisa
Same thing but sent letter entitled ‘order of re-entry’ saying that they got possession from that
Courts said no could only happen if:
Physical pwaceulf réoccupation
Court order
Section 2 of non forcible entry
Prohibits non - forcible entry
What about residential tenants in regards to forfeiture
no - residential tenancies act prohibits forfeiture of residential leases
Termination
