146Restrictions and relief against forfeiture of leases and under-leases

146 Restrictions and relief against forfeiture of leases and under-leases

S. 146(1) amended by Nos 97/1987 s. 181(11)(b), 74/2000 s. 3(Sch. 1 item 104), 82/2005 s. 51(a)(b).

(1) A right of re-entry or forfeiture under any proviso or stipulation in a lease or otherwise arising by operation of law for a breach of any covenant or condition in the lease, including a breach amounting to repudiation, shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice—

(a) specifying the particular breach complained of; and

(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and

(c) in any case, requiring the lessee to make compensation in money for the breach—

and the lessee fails, within a reasonable time thereafter, or the time not being less than fourteen days fixed by the lease to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.

This subsection shall not extend to a breach of any covenant or condition whereby or by means whereof either alone or with other circumstances any licence or permit under the Liquor Control Reform Act 1998 is or may be endangered or is or may be liable to expire or be forfeited, surrendered, taken away or refused.

S. 146(1A) inserted by No. 82/2005 s. 51(c).

(1A) A notice served under subsection (1) in respect of a breach amounting to repudiation—

(a) does not constitute, and must not be taken to constitute, an affirmation of the lease by the lessor; and

(b) does not affect any right that the lessor may have by reason of the repudiation.

S. 146(2) amended by No. 110/1986 s. 140(2).

(2) Where a lessor is proceeding, by action or otherwise, to enforce or has enforced without the aid of the Court or the County Court such a right of re-entry or forfeiture, the lessee may apply to the Court for relief; and the Court may grant or refuse relief, as the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances thinks fit; and in case of relief may grant it on such terms (if any) as to costs, expenses, damages, compensation, penalty or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court, in the circumstances of each case, thinks fit.

S. 146(3) amended by Nos 110/1986 s. 140(2), 35/1996 s. 453(Sch. 1 item 68.2), 82/2005 s. 51(d).

(3) A lessor shall be entitled to recover as a debt due to him from a lessee, or from the assignee or transferee of a lessee (where the assignment or transfer has been with the express consent of the lessor and the breach of covenant or condition, including any breach amounting to repudiation, has occurred since the assignment or transfer) or partly from the lessee and partly from the assignee or transferee and in addition to damages (if any), all reasonable costs and expenses properly incurred by the lessor in the employment of a legal practitioner and surveyor or valuer, or otherwise, in reference to any breach giving rise to a right of re-entry or forfeiture which, at the request of the lessee, is waived by the lessor, or from which the lessee is relieved, under the provisions of this Part either by the Court or by the operation of subsection (1) of this section. And the lessor shall be so entitled to recover whether the lessee has or has not rendered forfeiture unenforceable against him under that subsection.