Section 28 “Statutory Occupation” Cannot Be Ended by Self‑Help Re‑Entry: Termination Requires a Court Order (Exceptional Circumstances)

Case: Verbenagrove Ltd v Evans and Anor (Approved) [2026] IEHC 124
Court: High Court (Circuit Appeal)  |  Judge: Simons J.  |  Date: 6 March 2026

1. Introduction

This Circuit Court appeal arose from an application by Verbenagrove Ltd (the “Tenant”) for a new tenancy under Part II of the Landlord and Tenant (Amendment) Act 1980 in respect of restaurant premises in Donnybrook, Dublin. The lease term had expired by effluxion of time on 24 July 2020, but the Tenant had initiated the statutory renewal process and remained in occupation under section 28 pending determination (often described as “statutory occupation”).

The defendants (the “Landlords”) sought to defeat the renewal by contending that they had lawfully retaken possession on 17 August 2023 by invoking a contractual proviso for re-entry in the expired lease, without a court order. The appeal was unusual procedurally: the Circuit Court heard the case in two modules. The Landlords appealed only the first module (forfeiture/re-entry) but did not appeal the second module, in which the Circuit Court fixed the terms of a new tenancy.

Key legal issues:

  • Whether a landlord may, without a court order, physically re-enter premises occupied under section 28 pending adjudication of a renewal application, by reliance on a contractual re-entry/forfeiture clause in the expired lease.
  • If statutory occupation could be ended, whether that would disentitle the tenant to a new tenancy.
  • The consequences of the Landlords’ failure to appeal the Circuit Court’s second-module order fixing the new tenancy (res judicata/abuse of process concerns).

2. Summary of the Judgment

  • The High Court held that the Tenant’s section 28 right to remain in occupation pending determination of the renewal application cannot be terminated by unilateral self-help physical re-entry.
  • Consistently with Crofter Properties Ltd v. Genport Ltd [2007] IEHC 80, [2007] 2 ILRM 528, statutory occupation may be terminated only by court order, and only in exceptional circumstances where serious injustice to the landlord would otherwise arise.
  • Accordingly, the Landlords’ purported physical re-entry in August 2023 was unlawful/ineffective to end statutory occupation, and did not undermine the Tenant’s renewal claim.
  • Even if (counterfactually) statutory occupation had been effectively terminated, the Court held this would not automatically preclude the grant of a new tenancy; continuing occupation in the interregnum is not a condition precedent to renewal.
  • The Court emphasised that the Landlords’ failure to appeal the Circuit Court’s second-module order fixing the new tenancy rendered the appeal largely moot and raised res judicata and abuse of process concerns as to any attempt to reopen the second module.
  • The appeal was dismissed; costs were deferred for later submissions and argument.

3. Analysis

3.1 Precedents Cited

(a) Crofter Properties Ltd v. Genport Ltd [2007] IEHC 80, [2007] 2 ILRM 528

Crofter Properties was the decisive authority. There, a tenant in section 28 occupation failed to pay rent; the landlord sought possession relying (among other things) on a contractual re-entry clause. Finlay Geoghegan J. held that not all lease terms map neatly onto statutory occupation; critically, while a “right of re-entry” might remain relevant, the forfeiture consequences (extinguishing a proprietary leasehold interest) are not, because the tenant has only a personal, unassignable statutory right pending the renewal decision.

Simons J. treated Crofter as establishing that:

  • Section 28 occupation does not end automatically upon breach; instead, the court must retain discretion.
  • Termination of section 28 occupation should occur only in exceptional circumstances, to preserve the statutory scheme’s assumption of a generally “seamless transfer” between old and new tenancies.

The present judgment makes the corollary explicit: if termination depends on judicial discretion and an “exceptional circumstances” threshold, then a landlord cannot sidestep judicial scrutiny by unilateral physical re-entry. In that sense, Verbenagrove is a significant operational clarification of Crofter: it converts Crofter’s discretionary model into a clear procedural rule—no self-help repossession during section 28 occupation.

(b) Wintertide Ltd v. Córas Iompair Éireann [2010] IEHC 494 and K.W. Investment Funds v. Lorgan Leisure [2020] IEHC 132

These cases were cited as endorsing Crofter’s approach. Simons J. relied on them to support the proposition that section 28 confers a “bare” right of occupation which simultaneously:

  • subjects the tenant to appropriate lease terms (e.g., rent), but
  • restricts the landlord’s ordinary enforcement options for breach, channeling enforcement into court-controlled remedies.

(c) Bank of Ireland v. Lady Lisa Ireland Ltd [1992] 1 IR 404

Cited for the orthodox rule that re-entry/forfeiture may be effected by only two routes: physical re-entry or possession proceedings. Simons J. used this as a baseline to explain why, under section 28, that “two-route” model is modified: the physical re-entry route is unavailable because the tenant’s continued occupation rests on statute and must be displaced by court order.

(d) Wallace v. Davey [2022] IEHC 120

This authority was applied by the Circuit Court in module one to hold the re-entry was not peaceable due to cutting locks. Simons J., having decided the appeal on the broader section 28 point, expressly avoided determining peaceable/forcible re-entry issues as unnecessary.

(e) Verbenagrove Ltd v. Evans [2025] IEHC 151 (Barry O'Donnell J.)

This earlier High Court judgment refused a stay that would have stopped the Circuit Court hearing module two while the module-one appeal was pending. It framed the procedural posture that later caused difficulty for the Landlords: module two proceeded, fixed the new tenancy, and went unappealed.

(f) Heather Hill Management Company v. An Bord Pleanála [2022] IESC 43, [2024] 2 IR 222

The Landlords invoked section 5 of the Interpretation Act 2005 (“absurdity” and “plain intention”) to argue it would be “absurd” to afford tenants greater protection during section 28 occupation than during the contractual term. Simons J. used Heather Hill to restate the modern approach: text remains central, but context and legislative purpose matter; “absurdity” is a controlled concept, not a label for an unfavourable policy outcome. He rejected the Landlords’ “absurdity” claim as inconsistent with Crofter’s analysis of the statutory scheme and its “seamless transfer” objective.

(g) Re Worldport Ireland Ltd (in liquidation) [2005] IEHC 189 and A. v. Minister for Justice and Equality [2020] IESC 70, [2021] 3 IR 140

These were cited for the principles governing when a High Court judge may depart from a reasoned decision of co-ordinate jurisdiction. Simons J. treated Crofter as presumptively binding and found no basis to depart from it.

(h) Croke v. Waterford Crystal Ltd [2005] 2 IR 383, [2005] 1 ILRM 321 and Stafford v. Rice [2022] IECA 47

These authorities guided the Court’s decision to permit a late amendment to the defence (deleting an incorrect plea that re-entry had “forfeited” and “terminated” an already expired lease). The Court allowed the amendment but indicated costs consequences might follow—highlighting the litigation discipline imposed by modern pleading rules even in de novo appeals.

(i) In re Greendale Developments Ltd [2000] 2 IR 514

Cited for the exceptional nature of the jurisdiction to set aside a final order. It supported the Court’s scepticism about the Landlords’ apparent strategy: obtain a module-one finding in the High Court and then attempt to reopen the unappealed module-two order fixing the new tenancy.

(j) Jones v. Foley [1891] 1 Q.B. 730

Mentioned in the Landlords’ submissions as illustrative of robust historic “self-help” attitudes. Simons J. rejected that tenor as incompatible with “modern law of landlord and tenant”, reinforcing the normative shift away from self-help towards supervised legal process—especially where the legislature has created an interim statutory regime.

3.2 Legal Reasoning

(1) The nature of section 28 “statutory occupation”

The Court reaffirmed the established characterisation: section 28 occupation is a personal, unassignable right pending the renewal decision; it confers no proprietary estate. Nonetheless, if a new tenancy is granted, it is deemed a continuation—a “graft” on the prior tenancy—so the statutory scheme is designed to avoid disruption.

(2) Why forfeiture logic cannot be transplanted to an expired lease + section 28 occupation

The Landlords’ original pleading asserted that their re-entry “forfeited” and “terminated” the lease/tenancy in August 2023. The Court treated this as legally incoherent: a lease that expired in July 2020 cannot be ended a second time; an “expired lease cannot be forfeit”. This supported (and necessitated) the Landlords’ late amendment.

(3) The core holding: no unilateral physical re-entry during section 28 occupation

The Court’s key move is the “corollary” drawn from Crofter:

  • Crofter requires judicial discretion and an “exceptional circumstances” threshold to end statutory occupation.
  • A unilateral self-help right to re-enter would defeat that safeguard.
  • Therefore, the landlord’s remedy is to apply to court (within the renewal proceedings or separately) for an order terminating statutory occupation.

(4) Statutory interpretation arguments rejected

The Landlords argued that requiring a court order was “absurd” and a “radical” interference with property rights. The Court rejected this on two related grounds:

  • No absurdity: section 28 exists only where litigation is pending; it is rational for the Oireachtas to require that changes in occupation during that interregnum occur only under court supervision.
  • No impermissible “radical change” inference: the landlord-and-tenant code (tracing back to the Landlord and Tenant Act 1931) was itself a deliberate, significant regulation of landlord property rights in the common good; treating the “loss” of self-help re-entry in section 28 occupation as an unacceptable radical change misunderstands the statutory project.

(5) Even if statutory occupation ended, renewal is not automatically barred

Simons J. added an important clarification: continuing occupation through the interregnum is not an absolute condition precedent to renewal. Even if statutory occupation were terminated (for example, by court order for non-payment), that fact alone does not map onto the disqualifying grounds in section 17(1) directed at termination of the tenancy for non-payment of rent.

(6) Non-payment of rent and “good and sufficient reason”

The Court accepted, in principle, that non-payment of rent during statutory occupation may support refusal of renewal as a “good and sufficient reason” under section 17(1)(a)(v), depending on the facts. But it rejected any such defence here because:

  • it was not pleaded as an independent ground (the pleaded case hinged on re-entry),
  • module two proceeded without contesting entitlement to a new tenancy, and
  • factually, the Tenant promptly placed the arrears in escrow and sought VAT invoices; the Landlords’ conduct (including delayed invoicing and contrived service) made it unreasonable to treat the late payment as a tenant-default justifying refusal.

(7) Procedural finality: modular trials, res judicata, and abuse of process risk

The Court was notably critical of the practical utility of the appeal given the unappealed module-two order fixing the new tenancy. It flagged that attempting to reopen module two via a “set aside” application would likely be impermissible: final orders are only set aside in exceptional circumstances, and not to run arguments that “could have—and should have—been advanced” earlier.

3.3 Impact

  • Clear prohibition on self-help re-entry during section 28 occupation: landlords cannot physically repossess without a court order once section 28 is engaged. This reduces the scope for lock-changes and confrontational repossession attempts in renewal disputes.
  • Practical roadmap for landlords: the correct remedy for breach during statutory occupation is an application to the relevant court to terminate occupation (with the “exceptional circumstances/serious injustice” threshold).
  • Tenant-side clarity: statutory occupation is robust in the sense that it cannot be displaced unilaterally, but tenants remain exposed to court-controlled termination and to refusal of renewal where their conduct (including rent default) amounts to “good and sufficient reason”.
  • Litigation strategy discipline: parties using modular trials must appeal adverse determinations that matter to outcome; otherwise, res judicata will block later attempts to relitigate entitlement or core defences.

4. Complex Concepts Simplified

  • Statutory occupation (section 28): a temporary right to stay in the premises after the lease ends, while the court decides if the tenant gets a new tenancy.
  • Re-entry / forfeiture: a lease clause allowing a landlord to end a lease early for breach (often rent arrears) by retaking possession (physically or through court). Once the lease has expired, it cannot be “forfeited” because there is nothing left to terminate.
  • Relief against forfeiture: a discretionary court remedy that can reinstate a tenant after forfeiture where it is just to do so (commonly where arrears are paid).
  • “Graft” upon the old tenancy: if renewal is granted, the new tenancy is treated as seamlessly attached to the old relationship for statutory purposes, reducing disruption.
  • De novo appeal: on a Circuit Court appeal, the High Court rehears the matter afresh rather than merely reviewing for error.
  • Res judicata: once a final order is made and not appealed in time, the same issue cannot generally be litigated again between the same parties.
  • Modular trial: the court splits a case into separate phases (modules). A party must appeal the module that finally determines a critical issue; winning a later appeal on an earlier module may not undo an unappealed final order in a later module.

5. Conclusion

Verbenagrove Ltd v Evans and Anor (Approved) [2026] IEHC 124 consolidates and operationalises the Crofter framework by holding that, once a tenant is in section 28 statutory occupation pending a renewal application, the landlord cannot use contractual self-help physical re-entry to end that occupation. Termination requires a court order, and only in exceptional circumstances to avert serious injustice. The judgment also underscores procedural finality: where modular proceedings culminate in an unappealed order granting and fixing a new tenancy, later attempts to re-open the outcome by relying on a separate module’s appeal face formidable res judicata and abuse of process barriers.