PART V

Covenants in Leases of Tenements

64. —In this Part, “lease” includes a yearly tenancy arising by operation of law or by inference on the expiration of a lease and a statutory tenancy implied by holding over premises on the expiration of a lease.

65. —(1) Where a lease (whether made before or after the commencement of this Act) of a tenement contains a covenant (whether express or implied and whether general or specific) on the part of the lessee to put or to keep the tenement in repair during the currency of the lease or to leave or put the tenement in repair at the expiration of the lease and there has been a breach of the covenant, the subsequent provisions of this section shall have effect.

(2) The damages recoverable in any court for the breach shall not in any case exceed the amount (if any) by which the value of the reversion (whether mediate or immediate) in the tenement is diminished owing to the breach.

(3) Save where the want of repair is shown to be due, wholly or substantially, to wilful damage or wilful waste committed by the lessee no damages shall be recoverable in any court for the breach if it is shown—

(a) that, having regard to the age and condition of the tenement, its repair in accordance with the covenant is physically impossible, or

(b) that, having regard to the age, condition, character and situation of the tenement, its repair in accordance with the covenant would involve expenditure which is excessive in proportion to the value of the tenement, or

(c) that, having regard to the character and situation of the tenement, the tenement could not when so repaired be profitably used or could not be profitably used unless it were re-built, re-constructed or structurally altered to a substantial extent.

66. —(1) A covenant in a lease (whether made before or after the commencement of this Act) of a tenement absolutely prohibiting or restricting the alienation of the tenement, either generally or in any particular manner, shall have effect as if it were a covenant prohibiting or restricting such alienation without the licence or consent of the lessor.

(2) In every lease (whether made before or after the commencement of this Act) in which there is contained or in which there is implied by virtue of the British Statute passed on the 5th day of May, 1826, and entitled “An Act to amend the Law of Ireland respecting the Assignment and Sub-letting of Lands and Tenements” or by virtue of subsection (1) a covenant prohibiting or restricting the alienation, either generally or in any particular manner, of the tenement without the licence or consent of the lessor, the covenant shall, notwithstanding any express provision to the contrary, be subject—

(a) to a proviso that the licence or consent shall not be unreasonably withheld, but this proviso shall not preclude the lessor from requiring payment of a reasonable sum in respect of legal or other expenses incurred by him in connection with the licence or consent, and

(b) where the lease is made for a term of more than forty years and is made in consideration wholly or partially of the erection or substantial addition to or improvement or alteration of buildings, to a proviso to the effect that, in the case of any alienation of the tenement in contravention of the covenant effected more than seven years before the end of the term, no such licence or consent shall be required if notice in writing of the transaction is given to the lessor within one month after the transaction is effected, and

(c) where such alienation would cause a transfer or increase of any rates, taxes or other burden to or of the lessor, to a proviso that all expenditure incurred by the lessor by reason of the transfer or increase shall be reimbursed by the lessee to the lessor as and when so incurred and shall be recoverable from the lessee as rent under the lease.

67. —(1) A covenant in a lease (whether made before or after the commencement of this Act) of a tenement absolutely prohibiting the alteration of the user of the tenement shall have effect as if it were a covenant prohibiting such alteration without the licence or consent of the lessor.

(2) In every lease (whether made before or after the commencement of this Act) of a tenement in which there is contained a covenant prohibiting either expressly or by virtue of subsection (1) the alteration of the user of the tenement without the licence or consent of the lessor, the covenant shall, notwithstanding any express provision to the contrary, be subject—

(a) to a proviso to the effect that the licence or consent shall not be unreasonably withheld, but this proviso shall not preclude the lessor from requiring payment of a reasonable sum in respect of legal or other expenses incurred by him in connection with the licence or consent, and

(b) unless the alteration involves the erection, provision or reconstruction (otherwise than as an improvement within the meaning of subsection (3)) of any building or structure, to a proviso that no fine or sum of money in the nature of a fine (other than any sum authorised by this section) nor any increase of rent shall be payable for or in respect of the licence or consent, and

(c) if the alteration would cause a transfer or increase of any rates, taxes or other burden to or of the lessor, to a proviso that all expenditure incurred by the lessor by reason of the transfer or increase shall be reimbursed by the lessee to the lessor as and when so incurred and shall be recoverable from the lessee by the lessor as rent under the lease.

(3) In this section and section 68, “improvement” means any addition to or alteration of a building or structure and includes any structure which is ancillary or subsidiary thereto but does not include any alteration or reconstruction of a building or structure so that it loses its original identity.

(4) The references in section 29 of the Act of 1967 to an improvement shall be construed as references to an improvement within the meaning of subsection (3).

68. —(1) A covenant in a lease (whether made before or after the commencement of this Act) of a tenement absolutely prohibiting the making of any improvement within the meaning of section 67 (3) on the tenement shall have effect as if it were a covenant prohibiting the making of the improvement without the licence or consent of the lessor.

(2) In every lease (whether made before or after the commencement of this Act) of a tenement in which there is contained a covenant prohibiting either expressly or by virtue of subsection (1), the making of any improvement within the meaning of section 67 (3) on the tenement without the licence or consent of the lessor, the covenant shall, notwithstanding any express provision to the contrary, be subject—

(a) to a proviso that the licence or consent shall not be unreasonably withheld, and

(b) to a proviso that no fine or sum of money in the nature of a fine (other than a reasonable sum in respect of legal or other expenses incurred by him in connection with the licence or consent) nor any increase of rent shall be payable for or in respect of the licence or consent.

69. —Where—

(a) a lease (whether made before or after the commencement of this Act) of a tenement contains a covenant prohibiting or restricting the doing by the lessee of any particular thing without the licence or consent of the lessor, and

(b) the rent reserved by the lease has not been paid for five or more years, and

(c) the lessor is not known to and cannot be found by the lessee,

the Court may, on the application of the lessee and after the publication of such (if any) advertisements as the Court directs, authorise the lessee, subject to such (if any) conditions as the Court thinks fit to impose, to do the particular thing so prohibited or restricted and thereupon it shall be lawful for the lessee to do such particular thing without the licence or consent of the lessor, in accordance with the conditions (if any) so imposed.