Legal advice: How can I end a farm tenancy?

Terminating a lease can be a protracted, technical, and complicated process. Legal expert Karen Walsh takes us through it

Terminating a lease can be a protracted, technical, and complicated process. Picture: iStock/Getty Images

Dear Karen,

A number of years ago, I leased out farming lands that I had inherited from a relative. Whilst this arrangement was mutually beneficial for both parties at the time, I have become frustrated over the years by the unreliability of the tenant. After much consideration, I have made the decision to terminate the lease. What are my options when terminating a tenancy?

Dear Reader,

Terminating a lease can be a protracted, technical, and complicated process. A simple solution would be termination by mutual agreement. Provided for in the Landlord and Tenant Ireland Act 1860, both parties can agree to terminate the lease.

However, if it is not possible to reach a mutual decision with the tenant, all hope is not lost.

The first step would be to check the terms of the lease to establish whether or not a provision has been made for a specific method of termination. In some cases, parties may have included a break option in their lease at the time it was made.

This means that either or both parties have the option of terminating the lease in advance of its expiry. Note that typically this will require at least six to 12 months’ notice for the other party and this option could be lost if all relevant conditions are not strictly adhered to.

In cases where you are terminating a commercial lease, you have two potential options. One option is notice to quit. Notice to quit is used to recover the property where the lessee is over holding (remains in possession and continues to pay rent), after the term of the lease has ended.

These can be very technical and, whilst there is no set form, a notice must contain a clear and unambiguous intention to terminate the tenancy.

Many leases will specify that the lease can be terminated by giving one month’s advance notice in writing. If there is no provision in the lease in this respect, termination will be dependent on how rent is dealt with in the lease.

For example, if rent is paid quarterly, three months’ notice is required. Note that service of a subsequent notice, a demand for rent, or acceptance of rent will all nullify any notice to quit that was served.

The second option for terminating a commercial lease is forfeiture, which is only appropriate when the lease is still running. Forfeiture is an equitable remedy that can arise where a tenant is in breach of a condition of the lease, is in breach of a covenant of the lease, or the tenant makes a disclaimer of the landowner’s title.

Where this happens, tenants forfeit their lease and landowners can seek re-entry or ejectment. A notice must be served before forfeiture can take place, save and except in cases of non-payment of rent.

Landowners must also afford tenants reasonable opportunity to rectify the breach and it is worthwhile mentioning that courts may grant relief to the tenant if they feel it is appropriate.

Where termination by forfeiture occurs, landowners may only re-enter their lands peacefully. At no time can force be used to re-enter lands or remove the tenants from the land.

If all attempts to re-enter the lands peacefully are unsuccessful, landowners may seek a remedy through the court services. They can seek to have an ejectment civil bill issued and enforced to regain possession.

Independent legal advice should be sought before any attempt to terminate a tenancy takes place.

• Karen Walsh, from a farming background, is a solicitor practising in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-427 0200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.

Email: [e-mail] Web: www.walshandpartners.ie 

While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time