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Rent Review  - Avoid Taking on old leases! 

A lot of shops are vacant now and will be advertised for letting over the summer.


Many of these stores will have old leases in place and could be offered to a new tenant by  way of Assignment of the lease to the new party. 

This should be avoided at all costs and a prospective tenant should ask for an entirely new lease from the landlord if at all possible. 


Why ? Because an old lease will invariably contain Rent Review clauses under which any review of rent can only be upwards.   Under an old lease, the rent can be reviewed and fixed at the same rate as the old rent and therefore the rent remains static.   However, it cannot be reduced even if market conditions suggest otherwise. 


A store owner who took over an old lease could, all too easily, be paying double the rent than a neighbouring storeowner who was granted a brand new lease with a rent reflecting today’s more challenging conditions. 


These changes came in to effect in February 2010 when “Upwards only” rent review clauses were abolished.  After this date, all new leases must contain the more tenant friendly clauses under which the reviewed rent may  of course be increased but also  under which it be decreased  to reflect market conditions. 

27 Mar, 2024
A case brought to a French court could have implications in Ireland for the payment of royalties for music played at funerals. Music played at public events is collected by collection agencies. In France two of these took a French funeral company to court for the non-payment of royalties due to music composers for music played at funerals they conducted. The French court ordered OGF which is one of France’s largest funeral companies to pay €80,000 to the Society of Authors, Composers and Music Publishers (SACEM) and also €37,500 to another copyright association after a long dispute over the issue. The French company, OGF had in fact paid artists’ royalties until 2019 where they paid €1.93 per ceremony but after a price hike to €3.30 they refused to pay. The company also started a court case against the collection societies claiming that the funerals are private events and not broadcast to the public. The French court ruled ‘the broadcast by the company of musical works during funerals, without prior authorization…constitutes an unauthorized representation of these works and, therefore an infringement of copyright.’ In Ireland, the Irish Music Rights Organisation (IMRO) collects royalties on behalf of artists and music copyright owners. Currently, royalties are not collected by IMRO for music played at funeral services but perhaps they might decide to collect these royalties and follow the example in France.
27 Mar, 2024
A lady who worked for a nursing home took an action in the Circuit Court for an injury she incurred while operating a dishwasher. She claimed that the dishwasher was faulty and that she developed a repetitive strain injury from loading and unloading the dishwasher. Her job was specifically dishwashing duties at a private nursing home in Blackrock, Co. Dublin. She claimed that the machine she had to use was defective and required extra physical strength to load and unload the dishes. This had resulted in her developing a repetitive strain injury to the left side of her body. She claimed that in September 2017, she developed pain symptoms in her neck, ribcage, and groin for which she had to take painkiller and anti-inflammatory medication. She further claimed that three months later her back had ‘given up’ to the extent that she was no longer able to do her job. She attended a medical specialist who diagnosed soft tissue strain. This injury has affected her life, and she can no longer enjoy her pursuits of the gym, cycling and hill walking. The parties reached a settlement of €60,000 which was approved of by the judge. As she left her employment a few weeks after incurring the injury there was no claim for loss of earnings. The defendant nursing home had entered a full defence and made the settlement without admission of liability. Curry v Nursing and Caring Services Ltd Circuit Court (His Hon. Judge Meehan) 14 February 2024.
11 Mar, 2024
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11 Mar, 2024
The landlord of the Barrow Valley Retail Park had two leases with its anchor tenant, Dunnes Stores. In each of the two leases there was a restrictive covenant from the landlord in favour of Dunnes Stores which was binding on every lease the landlord entered into within the retail park. These covenants, in effect, prevented any shop from selling any goods that Dunnes Stores sold in their anchor store. In November 2020, the manager of the Dunnes Stores visited shop unit No. 4 trading under the Mr. Price name and found an array of products for sale which he considered to be ‘food, food products and groceries’ contrary to the restrictive covenants that each of the Retail Park lessees had signed up to. In the initial High Court case, Dunnes Stores applied for an injunction. The injunction was sought to prevent the shop occupying Unit 4 from selling products in breach of the covenants and the court granted the injunction. The appellants had claimed that the enforcement of the restrictive covenants would damage their trade to the extent that they would not have a viable business in the shopping center. The High Court judge found no evidence to support this. This decision was appealed to the Appeal Court. The Appeal Court pointed out that the restrictive covenants in the leases were not of a general nature nor vague but in fact, listed out the products which were the subject matter of the covenants. The Court of Appeal dismissed the appeal though it allowed the appeal on a lesser matter where there would be a declaration in the covenant to include the wording ‘provided that such items are non-durable’ for the sake of clarity. As the appeal was dismissed in most parts, the court ordered that 90% of the costs be awarded to Dunnes Stores. Dunnes Stores Unlimited Company & Anor v. Dafora Unlimited & Others [2024] IECA 37.
28 Feb, 2024
It’s important before buying an apartment to investigate how well the complex is run and how much of a contingency fund is in place to pay for repairs to the roof or other areas requiring maintenance. It is doubly important these days to make these enquiries, or more usually for your solicitor to make them on your behalf, as many apartment complexes have in recent years been bedevilled by shortcomings in fire safety provisions which cost a substantial amount to put right. The problem arose due to builders cutting corners and simply not complying with fire safety protocols at the time these complexes were being constructed and this despite a Fire Safety Certificate being issued. The local authority signed off on the Fire Certificate application / drawings, but the build was not carried out in accordance with the drawings / specification filed with the authority. In many cases the Guarantees may have expired, or the developer become insolvent, and all the costs of repair are left with the individual owners of the apartments. Your solicitor will advise you to engage an architect or surveyor to inspect the apartment and complex but as all work is covered over at this stage, it is usually impossible to find any fire safety problems.  So, any purchaser of an older apartment these days should be aware of these fire issues and will be advised by his solicitor: To ask an adjoining owner if there are any current fire safety or remedial issues. To engage an architect or surveyor to inspect the apartment and, if necessary, to liaise with the local authority or fire officer as to any concerns Whether or not the management company has adequate bank reserves to deal with any such fire or other emergencies Most importantly, when replies to the pre- contract queries are received, to advise whether the vendor/ management company are aware of any concerns or issues regarding fire safety / defective workmanship which could lead to a demand for payment from the management reserve funds. An inadequate reserve fund or a non-committal response to pre-contract queries is a red flag and any purchaser should be prepared to walk away in such a case and will be so advised by his solicitor.
28 Feb, 2024
FAMILY LAW: A Divorce Decree Does Not Prohibit the Parties from Continuing to Live Together If They Have Little Other Choice
28 Feb, 2024
If involved in a bicycle accident, which may result in litigation, there are several actions that you can take that will greatly assist. The common injuries to cyclists are: (i) Head and facial injuries. (ii) Dental injuries (iii) bone fractures (iv) soft tissue injuries (v) cuts, bruises, and scarring. The latter might be permanent. Cause of Accident Establishing this is important as the cause may not necessarily be the other road user in which case the cyclist has no claim. However, if others were injured or property damaged, the cyclist might well be the person sued. Accidents between two cyclists are not uncommon. Similar to accidents between motor vehicles, it is important to obtain both the contact information of the other party or parties as well as details of their bike or car. Taking pictures is especially useful. Take pictures of the road scene, road markings, the positions of the bike and other vehicle involved. Make a note of the ground conditions (i.e. wet or dry). Note the time of the accident and whether there was good light. It is always useful to report the accident to An Garda Siochana, even if it is a minor accident, as a record of it is important. So, if it is a minor accident, the gardai may not attend so when reporting the accident give them your notes. If the accident is serious and is attended by the gardai, the garda will take statements from those involved and from any witnesses. As soon as possible have your medical condition examined. For accidents where the parties are not taken to hospital, it is important that you visit your GP as soon as possible. Tell them the details of the accident and any injury or pain you are experiencing which can be traced back to the accident. Preparing Litigation Your solicitor will need all the records on the accident, so that will be: (i) your record of it (ii) your GP or hospital record (iii) photographs you will have taken at the accident scene iv Any garda report if available. Make sure if you receive a hospital report that it contains the name of the doctor who examined you on the day of the accident. Expenses incurred. All expenses you incurred arising from the accident should be given to your solicitor so make sure you have all these in receipts, as only documented expenses can be recovered. These can include cost of GP visits, medication, any medical cost directly arising from the accident and reasonable transport costs. Damage or loss of bike. Included in your claim will be the cost of bike replacement if, because of the accident, it is beyond repair. However, if it is repairable then this is a legitimate cost. Loss of Earnings If you have had to take time off work or if self-employed and cannot work, then this will be included in your claim. Evidence will have to be shown of loss of earnings. Personal Injury This would be your main claim if injured by the accident. This involves actual injury caused by the accident, pain and suffering and long term affects from the injuries. This will be established by the records kept at the scene of the accident and receipts evidencing all medical procedures, operations, physiotherapy, walking aids, after care requirements etc. Time Limits This is important. Delay could deny your action. Legislation called The Statute of Limitations requires personal injury actions to be taken within two years of the date of the accident. There are a few exceptions to this rule, e.g. for children, the limitation period does not start until the child reaches the age of 18. Early Action Thanks Contact your solicitor at an early stage if you decide to sue for personal injuries arising from a bicycle accident.
31 Jan, 2024
Self-conveyancing is a direct route to disaster. Property purchasing whether buying a home or a big commercial property is a major purchase and unless it is properly carried out, the cost of remedying any errors will be considerable. Engaging a Solicitor for Conveyancing. Conveyancing can be a complex area and often even a straight-forward looking transaction will sometimes develop issues after initial examination of the title. Here your solicitor, who is trained in property law, will trawl though all the necessary documents to ensure you get proper ownership or good title so that when you go to sell the property, no problems will arise which could well delay or even end your prospects of selling your property. The Process Your solicitor will be responsible for drafting the Contract of Sale. This is a legal document which sets out the terms of the sale/purchase. These are for example: purchase price; date of closing the sale and any other conditions the parties agree to which typically relate to mortgage approval, planning conditions and other more technical clauses which relate to title matters. This type of contract should never be drafted by a lay person and if it may render the contract unenforceable in the courts. Proper Title A vital role your solicitor will play in conveyancing is conducting searches on the property documentation to ensure there are no legal impediments on the property or financial issues that could impact on the ownership and/or value of the property. For instance, if there is a right of way over your property, you need to be aware of this and your solicitor will find this in his/her searches. Judgement mortgages can turn up on searches which means they must be dealt with and paid off or otherwise the new purchaser may be stuck having to pay them himself. If the searches throw up any legal issues, then these have to be considered and agreed upon between the parties before any completion of the sale can take place. Buying or selling a property is not like buying a car and of course the house or property could be extremely valuable. How can a layman draft a purchase deed which may have to recite an 1840s lease or apportion rent? Drafting the deed is a matter for the purchaser but any solicitor is likely to withdraw from a transaction where the buyer is representing himself as the buyer will simply not be able to process the transaction correctly and delay will be the order of the day. Finally, no insurance company will extend cover to a layman carrying out a conveyance and rightly so.
31 Jan, 2024
The plaintiff had a staple removed from her right tibia in December 2013 as she had been suffering from pain and discomfort in trying to align her lower leg. She had claimed that the infection and related symptoms that she suffered in the period from November 2011 to the date of the surgery were attributable to the defendant’s failure to identify the staple as the cause of her symptoms and to remove it at an earlier date. Solicitors acting for her initially had the incorrect defendant but delayed for over a year after being so informed by the defendant’s solicitors. The defendant’s notice for particulars and notice requiring further information went completely ignored by the plaintiff’s solicitors and accordingly, the defendant issued a motion to dismiss the proceedings for want of prosecution on 17 December 2021. However, by this time the plaintiff had appointed new solicitors who served a notice of change of solicitor on 14 March 2022. An affidavit sworn by the plaintiff’s new solicitor almost seven years after the initiation of the proceedings revealed that the original ‘childhood’ surgery was carried out in the year 2000, and that the plaintiff’s previous solicitors had not obtained any expert report supporting her allegations of clinical negligence by the time the matter came before the High Court. The High Court judge was critical of the plaintiff’s original solicitors for failing to obtain a medical opinion to ascertain that there are reasonable grounds for issuing proceedings. The High Court found that at least moderate prejudice, sufficient to dismiss the case under the Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 principles had arisen, and that the O’Domhnaill v Merrick [1984] IR 151 test was met in that there was a serious risk that a fair trial would no longer be possible and dismissed the case. The plaintiff appealed.  The Court of Appeal found that the lack of information contained in the originating summons was ‘immediately striking’ and stated it was ‘entirely silent as to when the alleged failure is said to have occurred, where it occurred and who was responsible for that alleged failure”. The court observed, disapprovingly, of the absence of an expert medical report and stated its absence amounted to an abuse of process. The Court of Appeal further observed. ‘It really beggars’ belief that after five years of inactivity, the first firm, when threatened with a motion to dismiss, did not even reply… the plaintiff’s current firm came on record in March 2022 having been instructed the previous month. At this juncture, the file was in crisis and required urgent attention. The court found there was a litany of errors by the plaintiff which prevented the court from attaching any merit to the plaintiff’s case and accordingly upheld the High Court decision and dismissed the appeal. Aine O’Neill v Lorcan Birthisle [2024] IECA 17
31 Jan, 2024
A hotel lost an appeal against an award of €91,000 made against them following a claim by a wedding guest who slipped and sustained injuries on their wet dance floor. In May 2015, the respondent was a guest at a wedding in a hotel in Charleville, Co. Cork when she slipped and fractured a heel dancing on the dance floor. The respondent claimed that she was not under the influence of alcohol at the time of her fall and that she had changed from her high heels’ shoes into flip flops. She claimed that the dance floor, unknown to her, was wet which caused her to slip. She further claimed that no staff member cleared up spills on the floor and there was a shortage of hotel staff on the night. The hotel claimed that the floor was in fact dry, that the respondent was intoxicated and was wearing high heels at the time of the accident. While the area of the accident was covered by CCTV, the hotel had not retained footage as it found it to be ‘grainy.’ The action commenced in the High Court which found that the injured lady’s action was grounded upon the duty owed to her pursuant to the Occupiers Liability Act 1995 and s.4 of the Hotel Proprietors Act 1963 which provides: ‘’Where a person is received as a guest at a hotel, whether or not under special contract, the proprietor of the hotel is under a duty to take reasonable care of the person of the guest and to ensure that, for the purpose of personal use by the guest, the premises are as safe as reasonable care and skill can make them.” The High Court judge was not satisfied with the witness for the hotel claiming the plaintiff was intoxicated as the witness had based it on the behaviour of people at similar events. Neither was the judge satisfied with the same witness's account that the dance floor was not wet because evidence suggested the hotel was not monitoring it nor had a system in place for monitoring it. Regarding damages, the injured plaintiff/respondent submitted two medical reports while the hotel offered no medical evidence. The injured plaintiff/respondent required surgery on her foot and was out of work for 14 weeks. She required physiotherapy and walked with a limp. The parties agreed that the injury fell with what is called Category 5 of the scale of damages and the High Court awarded her €91,000 in damages. The hotel appealed this to the Court of Appeal. The Appeal court was surprised at the manner in which the High Court judge reasoned his finding of negligence, but the court did not disturb it. The Court of Appeal did comment on whether the High Court judge had considered contributory negligence by the plaintiff. On balance, while the High Court judge did not specifically mention contributory negligence, it believed that the judge had taken that into consideration in his decision. The hotel submitted in its appeal that the award of €91,000 was disproportionate to the injury caused but the Court of Appeal was reluctant to change that as it had been ruled in Rossiter v Dun Laoghaire County Council [2001] 3 IR 578 that ‘’ an appellate court must not interfere with an award unless satisfied that it was so disproportionate as to amount to an error of law’’. Therefore, the Court of Appeal was reluctant to alter the award made in the High Court and dismissed the appeal of the hotel.  Sweeney v Atlantic Troy Limited [2023] IECA 268.
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