Judgment: 2007-03-20 · Court archive

High Court rules landlord could not pursue rent review while seeking lease forfeiture

The court declared an arbitrator’s appointment null and void after finding the landlord could not rely on the lease’s rent review procedure while seeking to enforce forfeiture. A fresh review may be pursued if the tenant is granted relief against forfeiture.

High Court · [2007] IEHC 140

Who, what, where, when and why

Who
  • Andrew Moffat (Plaintiff)
  • Noel Frisby
What

The court declared an arbitrator’s appointment null and void after finding the landlord could not rely on the lease’s rent review procedure while seeking to enforce forfeiture. A fresh review may be pursued if the tenant is granted relief against forfeiture.

Where

Places mentioned in the report

  • Lisduggan
  • Waterford
When

Judgment:

Why

Reasons reported in the judgment

Moffat asked the High Court to set aside the arbitrator’s appointment and restrain further rent review steps while the Circuit Court cases were unresolved. He also objected that documents described the landlord’s interest as belonging to “Frisby Construction”. The High Court found that this misdescription lacked merit because Moffat had known his landlord’s identity.

The High Court declared an arbitrator’s appointment null and void after ruling that a landlord could not pursue a rent review while seeking to enforce the forfeiture of a commercial lease.

The dispute concerned Unit 22C in Waterford Shopping Centre, Lisduggan, leased to Andrew Moffat for 20 years from July 1999. The lease provided for rent reviews every five years. After the parties failed to agree on the first revised rent, the landlord’s agents sought the appointment of an arbitrator in November 2005.

The landlord, Noel Frisby, had already served three forfeiture notices in 2005 and begun Circuit Court ejectment proceedings seeking possession. Although Frisby later waived those notices, he served a further forfeiture notice in February 2006. In separate Circuit Court proceedings, he maintained that the lease had been forfeited and opposed Moffat’s claim for relief against forfeiture. Those proceedings remained pending.

Moffat asked the High Court to set aside the arbitrator’s appointment and restrain further rent review steps while the Circuit Court cases were unresolved. He also objected that documents described the landlord’s interest as belonging to “Frisby Construction”. The High Court found that this misdescription lacked merit because Moffat had known his landlord’s identity.

The central question was whether a landlord seeking to enforce forfeiture could meanwhile invoke the lease’s rent review clause. Justice Laffoy held that once a lessor elects to pursue forfeiture, the lessor cannot treat the lease’s terms as binding the tenant while that claim is unresolved. The rent review therefore could not be used to determine arrears, potential mesne profits or a passing rent during that period.

The judge stressed that the Circuit Court retained authority over all issues in the pending proceedings and expressed no view on their merits. If Moffat is granted relief against forfeiture, Frisby may invoke the rent review provisions afresh.

The High Court declared the arbitrator’s appointment null and void and granted an injunction in the terms sought in the special summons. It did not decide whether the lease had in fact been forfeited or whether Moffat was entitled to relief; those questions remained for the Circuit Court.

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