Commercial Lease Disputes in Ireland: A Recent History and Overview
By Tom O’Byrne, O’Flynn Exhams LLP
Commercial lettings in Ireland have had a turbulent decade. The financial crisis took its toll on the sector. The National Asset Management Agency (NAMA), founded in 2009, acquired loans valued at EUR 77 billion and broad powers to manage its portfolio. Bailouts, Troika rules, insolvencies, and the blame-game led industry discourse.
The sector has seen a remarkable resurgence. Cranes again dominate city skylines. Record transactions grace the business pages. International investors, funds, and trusts have joined the fray. The success of the FDI sector drives demand.
Juxtaposed against this is the retail sector volatility. The effect of Brexit is uncertain. Rural areas and lowergrade lettings have not recovered. The residential sector is undersupplied. Many continue to struggle.
In these peaks and troughs, commercial landlord and tenant disputes have continued. A two- tier market has emerged. Much of the litigation still concerns onerous pre-2010 leases.
As a common law jurisdiction, the Irish legal system is similar to others of this provenance – notably England and Wales. Many pre-independence statutes continue to affect commercial lettings. A Bill to modernise commercial landlord and tenant law has stagnated since 2011.
Much Irish legislation has been led by EU law, especially in environmental and planning – this is a litigious area.
While facets of Irish law on commercial leases will be familiar to overseas practitioners, a rich body of distinct jurisprudence and legislation exists. The laws on contractual interpretation, equitable reliefs, rent review, dilapidations, break options, consents, and forfeiture, all feature important elements particular to this jurisdiction.
Irish insolvency procedures, such as examinership and liquidation, are a key component.
A recent trend has seen tenants seek to apply insolvency proceedings of other jurisdictions under EU recognition rules to restructure leases. The interplay between this and Irish property / constitutional law has proven contentious.
O’Flynn Exhams has acted in many such cutting-edge commercial lease disputes and is particulary well placed to advise on these matters.
Tom O’ByrneGGI member firm
O’Flynn Exhams LLP
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O’Flynn Exhams LLP is a leading commercial law firm, known for delivering an excellent service and solutionsdriven business law advice. Based in Cork, Ireland, O’Flynn Exhams provides expert legal services to a wide range of domestic and international clients in the corporate, real estate, financial services, tech, retail, utilities, education, insurance, construction, agri-food, public, and energy and natural resources sectors.
Tom O’Byrne is a Partner in the litigation and dispute resolution department of O’Flynn Exhams, focusing on commercial litigation. Tom regularly acts in high-profile commercial lease disputes before the Commercial List of the High Court. Tom also has considerable experience in judicial review, professional negligence actions, company law applications, crossborder insolvency matters, regulatory proceedings, and disputes in the energy and financial services sectors. Tom also supports the firm’s transactional teams in advising on complex landlord and tenant law and planning law matters.
Published: Litigation & Dispute Resolution Newsletter, No. 12, Spring 2020 l Photo: kanuman - stock.adobe.com