The Law In Relation To Forfeiture

Author:Ms Linda Conway
Profession:Dillon Eustace
 
FREE EXCERPT
  1. Introduction

    Landlords often experience difficulties with a tenant during

    the term of a lease. Such difficulties can arise as a result of

    breach of a covenant or condition in a lease, such as failure

    to pay rent or to keep the property in good repair. The most

    appropriate remedy in this situation is forfeiture.

    'Forfeiture' literally means the deprivation of a

    person of his or her property as a penalty for some act or

    omission. This update outlines the current position in Ireland

    in relation to forfeiture from the perspective of both landlord

    and tenant, paying particular attention to the grounds for

    forfeiture, the enforcement of forfeiture and the reliefs

    available.

  2. Grounds

    Forfeiture arises in one of three ways:

    By disclaimer, which arises where a tenant disputes the

    landlord's title. This generally arises only during

    ejectment proceedings where in its defence the tenant denies

    the landlord's title;

    By re-entry or ejectment for breach of a condition in the

    lease. Forfeiture can be affected in this situation even if

    there is no provision made for re-entry in the lease itself;

    and

    By re-entry or ejectment where there has been a breach of

    a covenant in the lease. This may be distinguished from

    forfeiture for breach of condition, as a lease may be

    forfeited for breach of a covenant only where a re-entry

    proviso is included in the lease. Most modern leases should

    contain comprehensive re-entry provisos to ensure this option

    is available to the landlords.

  3. Procedure

    Where a landlord believes that the tenant is in breach of a

    covenant or condition in the lease, it must notify the tenant

    of this and give the tenant a reasonable opportunity to remedy

    the breach before the right to forfeiture will arise. The form

    of notice which must be served on the tenant is set out in

    Section 14(1) of the Conveyancing Act 1881, as amended by

    Section 35 of the Landlord and Tenant (Ground Rents) Act 1967.

    This section states:

    "A right of re-entry or forfeiture under any provisions

    or stipulation in a lease, for a breach of any covenant or

    condition in the lease, shall not be enforceable, by action or

    otherwise, unless and until the lessor serves on the lessee a

    notice specifying the particular breach complained of and, if

    the breach is capable of remedy, requiring the lessee to remedy

    the breach, and, in any case, requiring the lessee to make

    compensation in money for the breach, and the lessee fails,

    within a reasonable time thereafter, to remedy the breach...

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