COVID-19: Protection from Eviction for Commercial Tenants in ROI & NI – different but similar?

 

COVID-19 measures in Northern Ireland clearly gave tenants of commercial property some protection from eviction during the emergency period. It was initially considered that business tenants in the Republic of Ireland did not enjoy equivalent protection. A recent case, though, suggests that the position in the Republic might actually be very similar to that in NI.

 

In the North, section 83 of the Coronavirus Act 2020 (which became law on 26 March) provides that a right of re-entry or forfeiture under a business tenancy for non-payment of rent may not be enforced, by court action or otherwise, during the period ending on 30 June (or such later date as may be specified in regulations) (“the relevant period”). There is further provision in relation to any proceedings commenced before 27 March to enforce a right of re-entry or forfeiture for non-payment of rent, effectively preventing the making of a court order (or an existing order taking effect) so as to require delivery of possession before the end of the relevant period.

 

South of the border, the Emergency Measures in the Public Interest (COVID-19) Act 2020 (signed into law on 27 March) was understood to extend only to residential tenancies. The Act provides that a landlord shall not serve a notice of termination in relation to the tenancy of a dwelling during the emergency period (3 months from 27 March, subject to extension). Rent increases in respect of such tenancies are also prohibited. However, there is a seemingly wider embargo on evictions:-

 

“…… all proposed evictions in all tenancies in the State……… are prohibited …”

 

Reading the legislation as a whole, some commentators have contended that this provision is clearly not intended to apply to commercial leases, but it appears to have been argued by a Dublin based furniture business in a recent case in the High Court reported on by the Irish Times that the prohibition on evictions also benefits business tenants.[i]

 

This was an ex parte application for interim relief (which means that only the Plaintiff’s side was heard). The Irish Times reports that the Plaintiff furniture business alleged that it could not gain access to its premises in a Dublin business park since 9 April (having been unable to pay its April rent in advance due to the COVID-19 crisis). Its case was that this amounted to unlawful eviction by the Defendants, in breach of the lease and the provision referred to above in the 2020 Act precluding evictions during the emergency period.

 

An interim injunction was granted against the Defendants directing them to provide the Plaintiff with access to the premises. The matter will come back before the Court again shortly, at which point arguments will be heard from both sides. It will be interesting to see whether the contention that the 2020 Act prohibits eviction of commercial tenants is sustained. To be continued!

 

Please get in touch with Gerard Small (gsmall@hbmo.ie) if you require information or advice on the above or any other commercial property issues.

Please note that the content of this summary does not amount to professional advice. Legal and tax advice should be sought in respect of specific queries.

 

[i] https://www.irishtimes.com/business/commercial-property/dublin-furniture-business-gets-interim-injunction-over-alleged-eviction-1.4236334