The High Court has ruled that Edward Lee and Co. [1974] Limited may pursue statutory relief for a new tenancy after giving notice that it did not want a further 36-year lease on the existing terms, despite sending the notice outside the lease’s specified window.
Mr Justice Charleton said the notice was valid and did not disqualify the tenant from relief under the Landlord and Tenant (Amendment) Act 1980. He said notices under the Act could now be served and declared that, if negotiations over the new tenancy’s duration, rent and conditions failed, an application could be made to the Circuit Court.
The plaintiff is part of the Dunnes Stores group and rented a retail unit in the Northside Shopping Centre in Dublin from N1 Property Developments Limited. The lease, made in 1975 for 36 years, allowed the tenant to give notice of its intention to surrender during a six-month window before expiry. That window ran from 1 February to 31 July 2010. The tenant sent its notice in late January 2011, four days before the original term expired.
The lease said that, if neither party gave notice within the window, it would be extended for another 36 years on the same conditions. The rent had risen to €336,840 at the 2005 review, and the lease provided for rent reviews that could not reduce the rent. The tenant argued that the extension provision unlawfully restricted its statutory rights by forcing a choice between leaving without access to a new tenancy and remaining on the existing terms.
The judge distinguished a contractual notice ending a tenancy at the end of its agreed term from a surrender, which generally ends a tenancy early by agreement with the landlord. He concluded that the notice did not amount to a surrender that would bar statutory relief. He also considered whether equity could excuse the late notice. Applying Irish authority on rent-review notices, he found that the balance of the parties’ rights justified relief in the circumstances.
The court did not set a new rent or other terms, nor did it direct that a new tenancy be granted. It declared that the notice was valid and that the tenant was not thereby deprived of statutory relief. The parties could negotiate; if they could not agree on duration, rent and conditions, the tenant could apply to the Circuit Court for relief ordinarily available on the determination of a business tenancy lasting more than three years.