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Verbenagrove Ltd v Evans and Anor (Approved)
Smart Summary
Factual and Procedural Background
The Plaintiff applied under Part II of the Landlord and Tenant (Amendment) Act 1980 for a new tenancy in respect of commercial premises in The City that had operated as a restaurant. The contractual lease expired on 24 July 2020. The Plaintiff served a notice of intention to claim a new tenancy on 3 June 2020 and instituted Circuit Court proceedings on 1 October 2020. The Defendants delayed delivering a formal defence until 30 January 2023. The Plaintiff stopped paying rent in February 2023 amid a dispute about VAT invoices. The Defendants served a forfeiture notice dated 1 August 2023 and attempted physical re-entry on 17 August 2023; the Plaintiff re-entered on 25 August 2023 and remained in occupation.
The Circuit Court conducted a modular trial. Module 1 addressed whether the Defendants had validly effected forfeiture/re-entry; Module 2 addressed the remaining issues and fixed the terms of a new tenancy on 12 May 2025. The Defendants appealed only Module 1 to the High Court. The High Court (Judge Simons) heard the appeal and delivered judgment dismissing the appeal.
Legal Issues Presented
- Whether a landlord can, during a period of statutory occupation under section 28 of the Landlord and Tenant (Amendment) Act 1980, lawfully take possession of premises by physical re-entry or forfeiture under an expired lease without a court order.
- If physical re-entry were effective, whether the landlord's taking of possession or termination of statutory occupation would disentitle the tenant to a new tenancy.
- Consequences of the landlord's failure to appeal or otherwise challenge the Circuit Court's order fixing the terms of the new tenancy.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff (referred to in the judgment as the Tenant) relied on section 28 and on Crofter Properties Ltd v. Genport Ltd to argue that statutory occupation is a personal, non-proprietary right and can be terminated only by the court in exceptional circumstances; a unilateral physical re-entry by the landlord was ineffective.
- The Plaintiff relied on the factual record to show that the Defendants' forfeiture notice/service and post-service conduct indicated an intention to contrive a forfeiture rather than to secure payment; the Plaintiff offered to pay arrears into escrow subject to issue of VAT invoices.
- The Plaintiff relied on the Circuit Court's Module 2 order fixing the new tenancy terms, and on the Defendants' failure to appeal that order, as dispositive.
Defendants' Arguments
- The Defendants contended that their contractual right of re-entry under the expired lease remained available in August 2023 and could terminate statutory occupation prospectively without a court order; the tenant remained subject to the lease terms including payment of rent.
- The Defendants submitted that Crofter Properties did not decide the specific question of physical re-entry after lease expiry and argued that a landlord should not be deprived of a contractual self-help remedy absent explicit statutory prohibition.
- The Defendants advanced statutory-interpretation submissions that prohibiting physical re-entry during statutory occupation would be absurd or constitute an unintended radical change to landlords' rights.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Wallace v. Davey [2022] IEHC 120 |
Use of force (cutting locks) renders a re-entry non-peaceable. |
Applied by the Circuit Court (as noted) to support a finding that the re-entry was not peaceable; referred to in assessing re-entry method. |
| Crofter Properties Ltd v. Genport Ltd [2007] IEHC 80, [2007] 2 ILRM 528 |
Section 28 statutory occupation: court must retain discretion to terminate occupation; re-entry/forfeiture applies in modified form and statutory occupation can only be terminated in exceptional circumstances. |
Treated as the central, binding authority. The High Court followed Crofter Properties and held that physical re-entry by a landlord cannot, without a court order, lawfully terminate statutory occupation. |
| Wintertide Ltd v. Córas Iompair Éireann [2010] IEHC 494 |
Endorsement of Crofter Properties' analysis of section 28. |
Noted as endorsing Crofter Properties; used to support treating Crofter Properties as settled. |
| K.W. Investment Funds v. Lorgan Leisure [2020] IEHC 132 |
Endorsement of Crofter Properties' analysis of section 28. |
Noted as further endorsement of Crofter Properties and its approach to statutory occupation. |
| Re Worldport Ireland Ltd (in liquidation) [2005] IEHC 189 |
Authority on when a judge of coordinate jurisdiction may decline to follow another reasoned judgment. |
Referred to in considering whether to depart from Crofter Properties; court declined to do so. |
| A. v. Minister for Justice and Equality [2020] IESC 70, [2021] 3 IR 140 |
Authority on when to follow or depart from co-ordinate judgments. |
Referred to alongside Re Worldport in addressing the question of following Crofter Properties. |
| Croke v. Waterford Crystal Ltd [2005] 2 IR 383, [2005] 1 ILRM 321 |
Principles governing applications to amend pleadings. |
Applied as leading authority on amendment of pleadings; court allowed late amendment to delete a forfeiture plea subject to costs considerations. |
| Stafford v. Rice [2022] IECA 47 |
Authoritative restatement of principles on amendment of pleadings. |
Used to restate principles relevant to permitting the Defendants' amendment; informed the court's decision to allow amendment. |
| Bank of Ireland v. Lady Lisa Ireland Ltd [1992] 1 IR 404 |
Re-entry is effected by physical re-entry or by proceedings for recovery of possession. |
Quoted for the proposition about modes of re-entry in analyzing forfeiture mechanics. |
| Jones v. Foley [1891] 1 Q.B. 730 |
Illustration of extreme historic self-help remedies by landlord. |
Cited to reject anachronistic or extreme conceptions of landlords' self-help rights under modern law. |
| In re Greendale Developments Ltd [2000] 2 IR 514 |
Final judgments are set aside only in exceptional circumstances. |
Applied to conclude that the Defendants could not now seek to set aside the unappealed Module 2 order except in exceptional circumstances. |
| Heather Hill Management Company v. An Bord Pleanála [2022] IESC 43, [2024] 2 IR 222 |
Principles of statutory interpretation; presumption against interpreting statutes to effect unclear or radical changes absent clear language. |
Used to test the Defendants' statutory-interpretation arguments and to reject the contention that prohibiting physical re-entry during statutory occupation would be absurd or unintended. |
Court's Reasoning and Analysis
The court framed statutory occupation under section 28 as a temporary, personal, non-proprietary right subject to the terms of the terminated tenancy only insofar as appropriate. The court treated Crofter Properties as the controlling authority: Crofter holds that (i) a court must retain discretion to terminate statutory occupation, (ii) termination should occur only in exceptional circumstances to avoid serious injustice to a landlord, and (iii) contractual re-entry/forfeiture provisions apply to statutory occupation in modified form and are subject to judicial control.
Applying Crofter Properties, the court concluded that a unilateral physical re-entry by a landlord cannot lawfully terminate statutory occupation without a court order. The court reasoned that allowing unilateral re-entry would defeat the statutory scheme's protective purpose and the court's discretionary role and would render the "exceptional circumstances" threshold meaningless.
The court made factual findings on service, intention and conduct: the forfeiture notice was physically left through the premises' letter slot consistent with contractual service provisions; however, the Defendants' choice of private hand-delivery, failure to notify the Plaintiff's solicitors, and delay in issuing VAT invoices supported an inference that the Defendants intended to contrive a forfeiture rather than secure payment. That conduct undermined any claim that non-payment of rent from February–July 2023 constituted a "good and sufficient reason" to refuse renewal; the Plaintiff had offered to pay arrears into escrow conditional on VAT invoices, which the Defendants delayed issuing.
The court also addressed procedural consequence: because the Defendants did not contest entitlement to a new tenancy at Module 2 and did not appeal Module 2, the Circuit Court's order fixing the new tenancy terms is final and res judicata; the appeal on Module 1 could not overturn the unappealed Module 2 outcome in practice.
Holding and Implications
HOLDING: The High Court dismissed the Defendants' appeal against the Circuit Court's Module 1 judgment. The court held that the Defendants were not entitled to terminate the Plaintiff's statutory occupation by unilateral physical re-entry in August 2023; statutory occupation may be terminated only by a court order in exceptional circumstances. The purported re-entry was invalid and did not defeat the Plaintiff's entitlement to a new tenancy.
Implications:
- The Circuit Court's unappealed Module 2 order fixing the terms of the new tenancy stands as final (res judicata); the Defendants' failure to appeal Module 2 effectively forecloses re-litigation of those terms in this appeal.
- A landlord seeking to terminate statutory occupation for breach (e.g. non-payment of rent) must apply to the court; unilateral physical re-entry is not a lawful route to end statutory occupation under section 28.
- Facts showing a landlord's intention to contrive forfeiture and procedural failures (e.g. withholding VAT invoices, unusual service choices) can undermine claims that non-payment of rent justifies refusal to grant a new tenancy.
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