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Leased Business Premises, the right to a new tenancy

28 Oct

 

The Landlord and Tenant (Amendment) Act 1980 (The 1980 Act) as amended by the Landlord and Tenant(Amendment) Act 1994(The 1994 Act) governs the relationship between landlords and tenants of commercial premises. The legislation provides for a number of statutory reliefs particularly the the right of a tenant to renew his/her lease.

The right to a new business tenancy has been further amended by Section 47 of the Civil Law(Miscellaneous Provisions) Act 2008 (The 2008 Act) which provides landlords and tenants the right to opt out of the right to renew a tenancy under statute.

Under Section 16 of the 1980 Act where part II of the Act applies  the right to renew arises subject to proving any one of the following “equities”:

Business Equity under Section 13 1 a as amended by SEction 3 of the 1994 Act -where the tenant has occupied the premises for a minimum of 5 years on a continuous basis.

Long possession equity arises under section 13 1 b when the tenant is in occupation for twenty years.

Improvements Equity unser secction 13 1 c -if the tenant is entitled to compensation for improvements and the said improvements amount to half or morte then half of the letting value of the tenementwhen the notice of intention to claim relief is served, then the tenant has an mprovements equity.

 

The 1994 Act allows for the tenant of an office premises to contract out of his/her right to a new tenancy subject to the following conditions.

 

  • The premises must be a business premises
  • The premises must be wholly and exclusively for office use.
  • The tenant must validly renounce his/her right to a new tenancy before the tenancy commences
  • The tenant must receive independent legal advice in respect of the renunciation

This relief was available only to office tenants and did not apply ot other business tenants.

 

The 2008 Act.

Section 47 of this Act provides that all business tenants who have a tencny pursuant to section 13 1 a of the 1980 Act regardless of user can contract out of the right to a new tenancy.

For this provision to apply the tenant must renounce his/her right to renew in writing and must receive independent legal advice. There is no requirement that the renunciation must be signed before the tenany commences which means that a tenant can renounce during the term of tenancy.

Assuming the landlord wants to avoid the obligation to renew then the landlord should ensure that the tenant signs the renunciation before signing the lease agreement.

 

The information in this article is of a general nature only and cannot be regarded as legal advice. It is general commentary only.You should not rely on the ocntents of this article without consulting a Solicitor in this firm. If you would like advice  regarding how the law applies to your individual circumstances please contact Michelle Gilbourne Solicitor

 

The Criminal Justice (Spent Convictions And Certain Disclosures) Act 2016

28 Jun

This Act commenced on the 29th April 2016.  The Act sets out that where a person aged 18 or older was convicted of a certain minor offence and over 7 years have elapsed since the conviction, then the conviction will be regarded as “spent” and will no longer have to be declared (unless an individual is before the Court). The Act applies to certain offences which are minor in nature. If an individual has more than one conviction they will not have their convictions treated as spent no matter how long ago the offence was committed. Certain offences committed contemporaneously leading to one conviction may be treated as one offence for the purpose of the legislation.

A conviction for a sexual offence, an offence tried in the Central Criminal Court or an offence resulting in a prison sentence greater then 12 months will not be treated as spent convictions.

If you think that this Act may apply to your circumstances it is recommended that you take legal advice based on your personal circumstances. The information n this article is of a general nature only.

 

Security for Costs

4 May

 

 

The issue of security for costs can arise in the course of civil court proceedings. Basically, security for costs is an order of the Court directing one party to provide security (either by lodging money or a bond) to cover the likely costs of the other side defending the case. The theory is that the defendant should not be forced to incur the costs of defending a case if there is a likelihood that the plaintiff will not be in a position to cover the costs of the litigation were the defendant to go on and win the case and receive an award for costs. Before he/she incurs those costs, he/she can apply to the Court to request that the Plaintiff be forced to provide security for costs. Such an order can  be made by the Court only in certain circumstances and the rules differ depending on whether the order is being sought against an individual plaintiff or a corporate plaintiff.

A Defendant may apply to the Court to require a Plaintiff to provide security for costs if he/she has a prima facie(on the face) defence on the merits of the case and that the Plaintiff is ordinarily resident outside the EU. If seeking an order for security for costs against a limited company, the rules are slightly different; in addition to showing  that he/she has a prima facie defence to the case, the Defendant must show by credible testimony that the corporate Plaintiff will be unable to pay for his/her costs.

Case law in this area has created uncertainty as to the amount of security of costs that a Court is likely to award if making the order. Irish Courts have tended to award an amount of costs equivalent to on third of the costs which would likely be incurred by the Defendant if required to defend the case. However, in a number of cases, recently Flannery & Anor v Walters & Ors [2015] IECA 147, the Courts have applied a discretion to award not just one third of the Defendants expected costs, but the full amount of the reasonably estimated costs.

Section 390 of the Companies Act 1963 provided that, in relation to a limited company Plaintiff, it should be required to pay “sufficient security” for the Defendants costs. The equivalent section in the new Companies Act 2014, section 52, has now removed the word “sufficient” from the equation.

While generally applying a one-third rule Courts have discretion to depart from that rule in certain circumstances and have on occasion ordered that corporate plaintiffs pay full security for defendants costs.

Cohabitants and the Law

29 Mar

 

 

A recent High Court case DC V DR has provided clarification in regard to the rights of co habitants who seek financial provision from the estate of their predeceased cohabitant. The right to apply for such financial provision is set out in Section 194(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

 

The case was decided upon by Judge Marie Baker in May 2015.

 

The court set out the following useful guidelines;

  1. The claimant had to prove that he had lived together with his cohabitant in an “intimate and committed relationship” as per section 172(1). The court took into account the criteria set out in Section 171(1) which sets out factors such as A) The duration of the relationship B) The degree of financial independence C) Any financial arrangements between them D) If one of the adults cared and supported the children of the other E) The degree which the cohabitants operated as a couple.
  2. In determining the basis upon which a couple lived together she said that this involved a number of “interconnected elements such as the degree of shared activities such as meals, sharing of household chores, holidays etc.”.  Interestingly Judge Baker held that though the couple were not financially dependent for  the  basics  of life the claimant clearly had a degree of financial dependence on his deceased cohabitant.
  3. The Judge went on to say that “any property acquired by the deceased cohabitant before their relationship commenced and independently of any direct or indirect contribution of the claimant had to be treated differently to property acquired in the course of the relationship”. She made clear that this did not  mean that such inherited property acquired prior to the relationship commencing was automatically excluded from the pot but rather that it was not immediately included and it depended on the facts of the case.
  4. The Judge took into account the amount that the Claimant might have obtained if the couple had been married or in a civil partnership and had died without making a will i.e. the maximum the Claimant could get was 50%.
  5. The Court also considered  the extent to which any claim or any amount which the Claimant would receive would displace the interest of any other beneficiary.

 

In making the decision the Judge took into account that the  Claimant did not have sufficient financial resources for his own needs and that there were no other persons in respect to whom the deceased had any obligations to provide financially i.e. children.

The Claimant owned a small farm which was not a residential holding. The Court felt it was unreasonable to direct that the farm be sold.

The Court directed that the surviving cohabitant be granted  approximately 45% of the deceased cohabitant’s estate. The Court held that “the percentage arose more from the value of the separate assets and that it was possible to make proper provision by a distribution of property”. Judge Baker went on to say that she did not regard that the legislation mandated or permitted a rule or even a rule of thumb that directed a particular percentage split i.e. she felt that she had discretion to decide what was fair in the circumstances of the case.

This case demonstrates the degree to which a Claimant must prove that there was an intimate and committed relationship, that the parties enjoyed activities together, that they presented as a couple and that there was some financial dependency and interdependence between them.

For further information contact Michelle Gilbourne on 069 77583 or email info@mcgsolicitors.ie

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Capital Gains Tax update

12 Feb

 

 

 

An increased CGT clearance threshold of €1,000,000.00 was introduced under section 42 of the Finance Act 2015 and came into effect on the 1st January 2016.

 

The increased threshold applies solely to disposals of residential houses/apartments, being defined as “including any building or part of a building used or suitable for use as a dwelling and any out office, yard, garden or other land appurtenant to or usually enjoyed with that building or part of a building”.

 

The €5000,000.00 threshold remains in place for all other Irish land and buildings (including commercial property).

Recent Changes in Family Law

12 Feb

 

 

On the 18th of January 2016 Frances Fitzgerald, Minister for Justice and Equality signed into law the Children and Family Relationships Act 2015 (Commencement of Certain Provisions) Order 2016

The key provisions enacted by the order include:

Non marital fathers will, in certain circumstances, have automatic guardianship rights in respect of their children.

It is possible for the Court to appoint a person as a child’s guardian if that person has been responsible for the child’s day to day care for over one year.

A parent’s spouse, civil partner or cohabitant will be able to apply for custody in certain circumstances.

A grandparent or other relative can apply for custody of a child in certain circumstances. Relatives of a child, or those acting in loco parentis can apply to have access in certain circumstances.

A person other than a parent can become the child’s guardian in certain circumstances.

It is possible for a parent to appoint a temporary guardian for his/her child through the courts if the parent is suffering from serious illness or injury and is unable to care of his/her child.

A child co-parented by civil partners has the same protections as are enjoyed by a child of a family based on marriage. A cohabiting partner has a maintenance responsibility where the cohabitee is a guardian of the child.

The court can impose “enforcement orders” where a parent or guardian has been denied custody or access. These may include requiring that he or she get compensatory time with the child, both parties attend parenting programmes, family counselling or receive information on mediation etc..

Now is the time to make your will

3 Sep

 

 

A will is a legal document which sets out how your assets are to be distributed after your death. The importance of making a will cannot be over emphasised. Difficulties arise where there is no will due to the fact that in the absence of having  written a will the law decides how your estate will be distributed.

 

By writing a valid will you can appoint an individual or individuals to act as your executor(s). An executor’s role is to ensure that your estate is distributed according to the terms of your will and the rules of law. Generally your executor will collect your assets, pay your debts and distribute your estate. One has liberty to make provision as one sees fit in their will with the exception that there are certain rules governing the entitlements of a surviving spouse. By virtue of the Succession Act 1965 a surviving spouse has an entitlement to a certain portion of their husband’s/wife’s estate and the size of the legal entitlement depends on whether or not there are any children. These legal rights must be borne in mind when making a will. If they are ignored when making a will it can lead to disputes in regard to your estate.

 

On the other hand if you have not made a will then there is no executor. In this case no one with an immediate right to deal with your affairs on your passing and until a personal representative comes forth and takes on this role your assets are effectively frozen. The person who  has entitlement to act as personal representative is again determined by the law. In cases where there is no will the law sets out the share that your surviving family members inherit. In the event that you have no surviving relatives the State will inherit your assets.

 

For those who have children it is particularly important to write a will appointing guardians who will step into the role of parent and look after raising your children. In this case trustees must also be nominated to deal with your children’s inheritance until they reach the age at which they inherit their portion of your estate.

 

In writing your will it is also important that you take inheritance tax into account. Writing a will allows you to plan for tax purposes to a certain extent. The law sets out certain tax free thresholds for certain groups of beneficiaries and if the amount of the inheritance exceeds the threshold then there can be a liability on the beneficiary to pay  inheritance tax at the rate of 33% on the amount exceeding the threshold. (current tax rate for CAT). There are also certain reliefs and exemptions available including Business Relief, Agricultural Relief, dwellinghouse Relief, Favourite nephew/niece relief, minor child of a predeceased child to name some of the more prevalent reliefs. All of these reliefs are subject to specific conditions and therefore it is important to review such matters thoroughly before you write your will.

 

Recent changes in the law  regarding Succession Rights have been enacted with the passing of the Civil Partnership and Certain  Rights and Obligations of Cohabitants Act 2010. The Act introduced inheritance rights for civil partners and it also made provision for cohabitants who fulfil certain conditions. Cohabitees under the Act do not have the same rights as married couples or civil partners. Cohabitees do not have an automatic right to inherit from their partner’s estate but they now have the right to apply to Court requesting that provision is made for them from their deceased cohabitee’s estate. The application can only be brought if you fall within the legal definition of cohabitant and provided the application is made within the time frame allowed in the legislation.

 

Remember your will should be reviewed on a regular basis and especially if any major life changes occur including marriage, the birth of children, separation or divorce, the sale or acquisition of new assets. Your will does not have any effect until your death. If you make a will today and leave your estate to a certain individual that individual has no legal right to that property while you are alive.

 

For further information please contact 069 77583 for a consultation.

 

 

Judicial Separation

27 Apr

A Judicial Separation is a Court Order that provides for the breakdown of a marriage. The Court has the power to grant orders dealing with the division of property, extinguishing of succession rights, addressing guardianship, custody and access in respect of children, division of pensions. A Judicial Separation however does not grant the right to remarry.

Before applying for a Judicial Separation it is advisable to endeavour to resolve matters by attending counselling and mediation and signing a separation agreement. In the event that these options do not prove successful  then an application may be made for a Judicial Separation. The application is brought in the Circuit Court or in the High Court depending on the couple’s financial circumstances.

There are six grounds which allow one to bring an application for Judicial Separation as set out in Section 2 of the Judicial Separation and Law Reform Act,1989. Briefly the grounds are as follows:

  1.  Where the respondent has committed adultery.
  2. Where the respondent has behaved in such a way that the applicant cannot be expected to live with the respondent.
  3. Where the respondent has deserted the applicant for one year.
  4. Where the spouses have lived apart from eachother for a period of one year and the respondent consents.
  5. Where the spouses have lived apart for 3 years.
  6. Where the marriage is broken down such that no normal marital relationship has existed between the parties for a period of one year immediately prior to the application.

On hearing the matter the Court will review each spouse’s financial affairs and will also review provisions made to ensure that the welfare of the children is given due regard. The Court has the jurisdiction to grant a variety of orders including pension adjustment orders, property adjustment orders, orders affecting the succession rights of the spouses, periodical payments orders, lump sum adjustment orders and orders regarding children.

In deciding on each case the Court will take into account the best interests of the children and will endeavour to make proper provision for all family members.

If you have any queries regarding marriage breakdown contact 069-77583.

Enforcement of Judgments in EU Member States in Ireland

5 Mar

 

The enforcement of judgments between EU Member states is regulated by certain Regulations including the Brussels I Regulation which was implemented into Irish Law by Statutory Instrument 52 of 2002,European Communities (Civil and Commercial Judgments)Regulations 2002 which came into force on the 1st March 2002.The Brussels Convention applies between EU Member states and Denmark. The Lugano Convention applies between EU member states and members of EFTA, Switzerland, Iceland and Norway. Both conventions were implemented into Irish Law by The Jurisdiction of the Courts and Enforcement of Judgments Act 1993. The Regulations do not apply to judgments emanating from outside the non convention states such as the United States. Continue Reading »

Teacher awarded €54,000.00 compensation for discrimnation

9 Feb

A primary school teacher has recently been awarded €54,000.00 in compensation by the Equality Tribunal. The school teacher who qualified in 1987 had been employed in the school as deputy principal since 2003. She applied for the position of principal and lost out to a less qualified , less experienced, younger candidate. The teacher who held a Master’s Degree was recognised by the Tribunal as being better qualified than the successful candidate.Because both candidates were marked the same on experience and qualifications the Tribunal found that there was discrimination on the grounds of age. Continue Reading »