Court dismissed claim for market rent and new tenancy terms under the 1980 Act due to statutory ambiguity.

AN CHUIRT CHUARDA THE CIRCUIT COURT

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

RECORD NO 2019/03680 Neutral Citation: [2024] IECC 10

IN THE MATTER OF PART II OF THE LANDLORD AND TENANT (AMENDMENT) ACT 1980

BETWEEN:

MICHAEL HOWARD, JACQUELINE HOWARD, JOHNNY HOWARD, AND ANNA HOWARD

PLAINTIFFS AND

CROWN PAINTS IRELAND LIMITED

DEFENDANT

Judgement of His Honour Judge John O’Connor delivered on the 23rd day of July 2024

Background

1 The Defendant held a premises at Malahide Road, Coolock (‘the premises’) as tenant of the Plaintiffs under a Lease dated 12 August 2008 (‘the Lease’) for a period of 10 years from the 12th of August 2008 and which expired on the 12th of August 2018.

2 The Defendant remained in occupation of the premises following the expiry of the Lease. On the 7th of August 2018, the Defendant served on the Plaintiffs a Notice of Intention to Claim Relief, claiming the right to a new tenancy of the premises under Part II of the Landlord and Tenant (Amendment) Act 1980 (‘the 1980 Act’).

3 The parties failed to agree the terms of a new tenancy. In this regard the Plaintiffs issued a Landlord & Tenant Civil Bill on the 5th of June 2019 seeking declarations in relation to the entitlement of the Defendant and if the Court found the Defendant was entitled to a new tenancy, an order fixing the term of the tenancy and the rent payable under the new tenancy.

4 An Appearance to the Civil Bill was entered by the Defendant’s solicitors on the 10th of July 2019 and on the 18th of August 2021 the Defendant delivered a defence and counterclaim claiming an entitlement to a new tenancy of the premises and an order fixing the terms of the new tenancy and the rent payable thereunder.

5 In November 2022, the Defendant’s solicitors informed the Plaintiff’s solicitors that the Defendant was withdrawing its claim to a new tenancy. The Defendant subsequently vacated the premises on the 31st of December 2022.

6 Throughout the period from the expiry of the Lease on the 12th of August 2018 up to the date of its vacating the premises on 31st of December 2022, the Defendant continued to pay to the Plaintiffs the rent payable under the lease immediately prior to its determination.

7 The Defendant claims that the rent paid by the Plaintiffs from August 2018 to the 31st of December 2022 was significantly less than the market rental value of the premises as of the date of the expiry of the lease. Therefore, the Plaintiffs now seek, in addition to their costs of the proceedings, the difference between the former lease rent and market rent as of the date of determination of the lease for the period of the Defendant’s post-lease occupation.

8 The Notice of Motion by the Plaintiffs dated the 19th of July 2023 states at paragraph 1:

“A Declaration that the Defendant, having now withdrawn its claim to a new tenancy under Part II of the Landlord and Tenant (Amendment) Act 1980 in respect of premises at Malahide Road, Coolock (“the Premises”) is liable to pay the Plaintiff the difference between the market rent for the period from the date of expiration of its prior Lease on 11 / 12 August 2018 to the date of its vacating

the Premises on the 31 December 2022 and the rent actually paid by it in respect of this period.”

Legislation

9 Section 16 of the Landlord and Tenant (Amendment) Act 1980 (‘the 1980 Act’)

provides.

“Subject to the provisions of this Act, where this Part applies to a tenement, the tenant shall be entitled to a new tenancy in the tenement beginning on the termination of his previous tenancy, and the new tenancy shall be on such terms as may be agreed upon between the tenant and the person or persons granting or joining in the grant of the new tenancy or, in default of agreement, as shall be fixed by the Court.”

10 Section 23 of the 1980 Act further provides.

“(1) This section applies where the Court fixes the terms of a new tenancy under this Part.

(2) The Court shall fix the duration of the tenancy at thirty-five years or such less term as the tenant may nominate save, where the right to a new tenancy arises in respect of a tenement referred to in section 13 (1) (a) (as amended by section 3 of the Landlord and Tenant (Amendment) Act, 1994), the duration of the tenancy shall be fixed at twenty years or such less term as the tenant may nominate provided that it shall not be fixed for a term of less than five years without the landlord's agreement.”

11 Section 28 of the 1980 Act further provides :

“Where an application is pending under this Part for a new tenancy or to fix the terms of a new tenancy and the pre-existing tenancy was terminated otherwise than by ejectment or surrender the tenant may, if he so desires, continue in occupation of the tenement from the termination of the tenancy until the application is determined by the Court or, in the event of an appeal, by the final appellate court, and the tenant shall while so continuing be subject to the terms (including the payment of rent) of such tenancy, but without prejudice to such recoupments and readjustments as may be necessary in the event of a new tenancy being granted to commence from such termination.

Case law

12 In Harrisrange v Duncan [2003] 4 IR.1, McKechnie J held that a tenant who had remained in occupation under Section 28 of the 1980 Act and whose claim to a new tenancy, while continuing to be pursued, ultimately proved unsuccessful, was not a trespasser. Therefore, he held the tenant could not be liable for mesne rates during the period of their occupation nor could they be liable for recoupments and readjustments under Section 28 of the 1980 Act as the wording of that section tied such recoupments and readjustments to the granting of a new tenancy. The consequence of this, was that the landlord’s claim against the former tenant for rent during the period of their postlease occupation was held limited to the rent payable under the former lease only.

13 In Harrisrange v Duncan [2003] 4 IR.1, McKechnie J did recognise that a court could intervene if a tenant was abusing the facility to remain in occupation under Section 28 of the 1980 Act by stating at paragraph 26 of this judgment that:

“Of course if a tenant attempted to use section 28 solely as a device or pretence then that would constitute an abuse of the process and could be dealt with accordingly.”

14 The Plaintiffs also referred to the doctrine of estoppel and in this regard referred to the judgment of Charleton J. in the Supreme Court in Ulster Investment Bank Ltd v. Rock

Rohan Estate Ltd [2015] 4 I.R. 37, 52, in which the learned judge endorsed the explanation of estoppel by representation given in the 32nd edition of Snell on Equity, where the author stated at para. 12 — 009:

“Where by his words or conduct one party to a transaction freely makes to the other a clear and unequivocal promise or assurance which is intended to affect the legal relations between them (whether contractual or otherwise) or was reasonably understood by the other party to have that effect, and, before it is withdrawn, the other party acts upon it, altering his or her position so that it would be inequitable to permit the first party to withdraw the promise, the party making the promise or assurance will not be permitted to act inconsistently with it”.

15 At page. 53 of the said judgment Charleton J. explained that, where the estoppel alleged is based on a representation, it should be a relatively straightforward process to identify whether the relevant requirements have been met. On the same page, the learned judge also explained how estoppel by convention may arise. He stated -

“Where, … it is a matter of both parties proceeding on the basis of a clear common understanding, the mutual convention of the parties may suffice as a foundation for estoppel. Depending on the facts, estoppel may become operative in that situation, but only because of that common understanding. In Treitel's The Law of Contract, 13th Ed. (Sweet & Maxwell, 2011), at pp. 124 and 125, the editor sets out the law thus:

‘3. 094.Estoppel by convention may arise where both parties to a transaction act on an assumed state of fact or law, the assumption being either shared by both or made by one and acquiesced in by the other. The parties are then precluded from denying the truth of that assumption if it would be unjust or ‘unconscionable’ to allow them (or one of them) to go back on it. Such an estoppel differs from estoppel by representation and from promissory estoppel in that it does not depend on any ‘clear and unequivocal’ representation or promise. It can arise where the assumption was based on a mistake spontaneously made by the party relying on it, and acquiesced in by the other party, though the common assumption of the parties, objectively assessed, must itself be ‘unambiguous and unequivocal’”.

The Plaintiffs’ Submissions

16 The Plaintiffs submit firstly that the decision in Harrisrange v Duncan [2003] 4 IR.1 should be distinguished on the facts in this case. They also submit that that the court should take a purposive approach to Section 28 of the 1980 Act. This they state would allow for recoupment or adjustments in a situation where the new tenancy was not granted because the tenant had withdrawn the application for a new tenancy. This they further state would not contradict the decision in Harrisrange v Duncan [2003] 4 IR.1 as in that case the tenant was not entitled by the court to a new tenancy whereas in this case the tenant is entitled to new tenancy but did not take it up. Counsel submits that while this would not contradict Section 28 of the 1980 Act, it would involve adding in Section 28 the words that” such recoupments and re adjustments could also apply in circumstances where there has been a claim for new tenancy which has been withdrawn “

17 The second solution suggested by the Plaintiffs’ Counsel is that covered by Section 16 of the 1980 Act, whereby a new tenancy is granted under part II of the said Act and commences on the expiration of the previous tenancy which, in this case, is the 11th/12th of August 2018. As set out in Section 23(2) of the 1980 Act, the term of this new tenancy is at the election of the tenant, subject to the qualification that the landlord does not have to agree to a term of less than 5 years. Counsel states that this option was not opened to McKechnie J in Harrisrange v Duncan [2003] 4 IR.1. Counsel submitted that there is nothing in the 1980 Act which precludes the court from fixing the term of the new tenancy when the landlord has applied to have the terms of the new tenancy fixed by the Court and where the tenant applied on the basis of Notice of Intention to Claim relief to have the terms fixed by the court. While it is accepted that Section 23

(2) of the 1980 Act states that the term fixed should not be less than five years, counsel suggests that implicit in that is that if the landlord does agree the tenancy, an agreement can be fixed for a term of less than 5 years. Effectively this submission is proposing that the court should deem the conduct of the tenant implicitly nominating a period of less than five years and that the tenant is automatically liable for market rent during the period. Counsel has described this proposition as “an elegant solution” which brings it outside Harrisrange v Duncan [2003] 4 IR.1 in that unlike Harrisrange, the landlord is not opposing the new tenancy, Counsel also stated that the landlords are not insisting on a five year tenancy and they are prepared to take a lesser period up to the date the tenant gave notice that they were not proceeding with the tenancy claim or alternatively when the tenant vacated the premises whichever the court thought more appropriate Counsel also submitted out that while McKechnie J rejected the purposive approach in regards to section 28, there is ambiguity in Section 23 (2) and this was not part of the judgment in Harrisrange v Duncan [2003] 4 IR.1. In short, the court could adopt a purposive approach to do justice to the parties.

18 The third submission solution is based on the doctrine of estoppel. In this regard the judgment of Charleton J. in the Supreme Court in Ulster Investment Bank Ltd v. Rock Rohan Estate Ltd [2015] 4 I.R. was referenced. This third submission can be summarised as follows : that the Plaintiffs state that the tenant remained in occupation of the premises following expiration of the lease and they remained on foot of notice to intention to claim relief and a new tenancy application. In doing so, it was implicitly represented that on granting a new tenancy, they would pay difference between a formal lease and market rent. The Plaintiffs submit that the consequences of that, is that the issuance of the proceedings brought Section 28 of the 1980 Act into play and gave rise to the doctrine of estoppel. This meant the tenant was bound and precluded from subsequently asserting that it is not liable to recoupment in respect of the rental differential.

19 In summary the following points were submitted by the Plaintiffs’ Counsel:

As set out in Section 23(2) of the 1980 Act, the term of this new tenancy is at the election of the tenant, subject to the qualification that the landlord does not have to agree to a term of less than 5 years.

(1) Where a tenant entitled to a new tenancy serves a Notice of Intention to Claim Relief, resulting in an application such as that in the Civil Bill being made by its landlord, and continues in occupation of the premises pending the hearing of that application, any subsequent ‘resiling’ by that tenant from its claim to a new tenancy should, having regard to the benefit already obtained by it under Section 28 of the 1980 Act, be deemed to be an election by that tenant for a new tenancy. This would commence on the date of expiration of the former lease and continuing up to the date of it ‘resiling’ from its claim to a new tenancy or vacating the premises, whichever is the later, with appropriate recoupments and readjustments pursuant to Section 28 of the 1980 Act.

(2) Although, where the period from the date of expiration of the former lease to the date of the Defendant vacating is less than 5 years, the consent of the landlord pursuant to Section 23(2) is necessary before such new tenancy can be deemed to subsist, the Plaintiffs in this case state they are happy to consent to a new tenancy for this period.

(3) The above solution, Counsel submits was not available in Harrisrange v Duncan [2003] 4 IR.1 by reason of the fact that the tenant in that case had no statutory entitlement to a new tenancy. However, in this case a new tenancy is available and was applied for. Any other solution, the Plaintiffs submit would be a highly unsatisfactory situation in that if a tenant was able to continue in occupation at a below-market rent for an extended period following the expiry of their lease and then, by resiling from their claim to a new tenancy, it could avoid having to pay the landlord the rental difference which they would have to pay if they were to follow through with their claim to a new tenancy.

(4) The Plaintiffs further submitted that it follows that a new tenancy must be retrospectively deemed to have been in existence for the period 12th of August 2018 to 31st of December 2022 with the rent payable in respect of same being market rent as of August 2018 so as to entitle the Plaintiffs to an order determining such rent and, pursuant to Section 28, all necessary recoupments and readjustments arising out of same.

(5) Further and without prejudice to the foregoing, the Plaintiffs state that the Defendant remained in occupation of the premises following the expiration of the Lease on foot of a Notice of Intention to Claim Relief asserting a claim to a new tenancy (such new tenancy being by implication a new tenancy at market rent as of the date of expiration of the former lease), it being implicit in such claim that it would, on granting of the new tenancy, pay the difference between the former lease rent and market rent for the period from the date of expiration of the former lease up to the date of grant of the new tenancy.

20 In answer to the Defendants’ claim that the relief sought by the Plaintiffs in the motion is materially different from the proposal being advanced in submissions and which they state appears to be an effort to circumvent the absence of any entitlement to mesne rates, the Plaintiffs state the relief sought are implicit in the motion before this court.

The Defendants’ Submissions

21 The Defendant argues that the Plaintiffs have acknowledged that there is a withdrawal of the claim for a new tenancy and in the pleadings do not seek the grant of any tenancy as now appears to be the contention in submissions.

22 The Defendant summarises the Plaintiffs submission as follows:

(i) that the court should fix a lease for a period shorter than the statutory minimum, notwithstanding the pleaded withdrawal of the Notice of Intention to Claim Relief and the yielding up of possession.

(ii) that the provisions of Section 28 of the 1980 Act should be disregarded on the basis that there was an impropriety on the part of the Defendant in complying with the requirement for service of a Notice of Intention to Claim Relief in the event that a new tenancy was being claimed.

(iii) that the Section should be disregarded and that a tenant withdrawing the claim for a new tenancy should be deemed to have elected for a new tenancy terminating either on the date of vacation of the premises or, what is described as the date of resiling from its claim”.

23 The Defendant also submits that the Plaintiffs argument is that that they are entitled to treat the service of Notice of Intention to Claim Relief as an act akin to a representation that the Defendant would pay the difference between the former lease rent and the market rent for the period from the date of expiration of the lease up to the date of grant of the new tenancy. They point out that it was the Plaintiffs who had brought the application to determine the claim and responsible for the form of process. Read literally, the Defendant submits that it would mean that any tenant who decided that they did not want to pursue a new tenancy could be sued for misrepresentation and the provisions of Section 28 of the 1980 Act circumvented. Furthermore the Defendant sates that none of these matters of fact are deposed to and these suggestions appear to be entirely based on the views expressed in the legal submissions to the court.

24 Specifically, regarding Section 28 of the 1980 Act the Defendant submit as follows:

(a) The Act provides that there must be an application pending. In this case, the application is that of the lessors, who wished to determine the terms of the tenancy and the effect of this was to entitle (but not require), the tenant to continue in occupation until the application was determined. This overcomes the situation where otherwise the tenant might continue in occupation without making any payment at all, depriving the landlord of rent for potentially quite substantial periods.

(b) The terms of Section 28 of the 1980 Act make clear that any recoupment or readjustment to take account of the new tenancy is conditional on the new tenancy being granted.

(c) The implicit proposition being advanced by the Plaintiffs is that, once a tenant serves Notice of Intention to Claim Relief, the landlord is entitled to seek mesne rates for the period of occupation under Section 28 of the 1980 Act. This position, they state has been comprehensively rejected by the decision in Harrisrange v Duncan [2003] 4 IR.1

(d) The court determined that the question of recoupments and adjustments to the rent payable can only arise under Section 28 of the 1980 Act if a new tenancy was granted. The tenant was obliged only to pay the rent applicable at the expiry of his tenancy. Any argument that seeks to recover the market rent for the period to which Section 28 applies, is at variance with the fact that the right to occupy only arises by virtue of the Section which also defines the rental obligation.

(e) The DEF submit that Section 28 is specific to an application which is brought under the 1980 Act. If a landlord, by contrast, brought ejectment proceedings seeking the recovery of the property, then the landlord would be entitled to seek mesne rates, unless and until the tenant had brought an application under the 1980 Act. The Notice of Intention to Claim Relief is therefore a statutory pre-condition but is not the event which gives rise to the protection under Section 28 or the consequent liability.

(f) The Defendant submit that there is a fundamental inconsistency in the argument by the Plaintiffs that, on one hand, the court should treat the defence of the Plaintiffs’ own application as an abuse of process and, the argument that merely because the landlord brings the application, the tenant loses the right to withdraw the claim for a new tenancy alleged to be an abuse of process. If, in this case, the application had been brought by the tenant, the tenant would be entitled to discontinue the proceedings and the landlord would be left without the remedy being canvassed.

(g) The Defendant submit that for any number of reasons, a potential lessee might decide not to proceed to seek rights under the 1980 Act and, having regard to the fact that it is the tenant’s right (and not the landlord’s), it was submitted that a tenant be able to withdraw the Notice of Intention to claim a new tenancy and (if they are the Applicant) to withdraw the proceedings. The bringing of the application by the landlord is simply a means by which the process can be progressed – but the underlying characteristic is that the entitlement is that of the tenant. Once the tenant decides not to proceed with the application and advises the landlord accordingly, there is no longer a tenancy to be fixed. The only relevance this has is that the tenant may be exposed to a liability for costs.

(h) Counsel for the Defendant stated that the tenant in this case did not use Section 28 as a device or pretence. If the landlord had such belief, they stated that the option was available to issue ejectment proceedings, which they chose not to do so. The Defendant submits in the interests of the landlord to have the benefit of a substantial tenant, paying a substantial rent during the Covid crisis and the fact that the relationship between the parties proved increasingly negative, is not a criticism of the tenant. The Defendant submited that the Plaintiffs have put no material before the court to indicate that the view was ever taken, that the Defendant was in some way behaving abusively. The Defendant appointed experts to engage and the engagement the Defendant submits, proved unsuccessful. There is also a substantial dispute in relation to dilapidations which, no doubt they submit will have to be dealt with in the High Court. The terms of Section 28 of the 1980 Act do not admit of the type of construction advanced by the Plaintiffs, which pre-suppose that the court should hear and determine rights in respect of a lease which the tenant no longer wishes to take.

(i) The Defendant submit that the Plaintiffs have sought to characterise the decision not to proceed to a new tenancy in a pejorative way by calling it “resiling”, whereas it is in fact the exercise of a right and the converse of exercising a right is either – not doing so, or – withdrawing the claim to do so.

(j) The Defendant stated that effect of Section 28 of the 1980 Act cuts both ways. If, for example, the tenant resolved not to proceed with the application and the rent payable would in fact have reduced but for that decision, the same limitation in adjustment applies to the tenant, who would potentially have paid an amount above market rent for the period during which said Section 28 was engaged.

(k) The Defendant rejected the Plaintiffs argument that the Notice of Intention to Claim Relief should be regarded as a representation that the tenant would pay the difference between the old lease rent and the market rent. They state that the entire point is that the rent may be higher or lower and the tenant does not represent that he will pay a higher rent but may well be arguing (as it did in this case) that the rent had dropped. Each of the parties may have quite different views as to what the rent

may be. The Defendant states that the Plaintiffs had the option to expedite the proceedings if they saw fit but chose not to do so.

(l) In this regard the Defendant stated that it is understandable that this should be the case given the scale of dilapidations and the fact that the rent was being vigorously contested. The Defendant argues that Plaintiffs’ application is in truth a ‘stratagem’ to circumvent the ruling in Harrisrange v Duncan [2003] 4 IR.1 in a highly contested case where there was substantial difference between the parties in relation to rental. The differences had become even greater according to Defendant because the relief sought by the Plaintiffs at the commencement of this application, was, in substance, a claim for mesne rates. They state that it has now changed into an argument that the court, despite the withdrawal of the Notice of Intention to claim a new lease – should still proceed to an adjudication on a right, which the Plaintiffs acknowledge has been withdrawn.

25 In regards to Harrisrange v Duncan [2003] 4 IR.1, where McKechnie J did recognise that a court could intervene if a tenant was abusing the facility to remain in occupation under Section 28 of the 1980 Act by stating at paragraph 27 of the Judgement, that the Defendant submits that to make an allegation of abuse of process, is a serious situation and they further submit that in the ordinary course, it would be expected that some evidence would be put before the court to justify such allegation. Whereas the Defendant stated that no such evidence is contained in the affidavits filed and, while the general proposition is accepted that situations can of course arise where there is an abusive element, there is nothing to indicate that such is the case here. Abuse of process is a serious allegation which brings with it a high bar, and, in this case, the Defendant submit that the arguments put forward are not evidentially based, but rather, simply reflect legal submissions.

Court Decision

26 Part 11 of the Landlord and Tenant (Amendment) Act 1980 gives tenants of certain tenements the right to new tenancy on satisfaction of certain conditions [Irish land Law J.C W Wylie 5th edition [20.84]]. Indeed, the heading of Part 11 of the 1980 Act and various sections emphasize what is envisaged is ‘rights’ to a new tenancy. The terms of the new tenancy will be fixed by the Circuit Court. However, the 1980 Act lays down various provisions relating to the calculation of the duration, rent and allowance for improvements. If the premises is used solely or partly for business purposes, a tenant is not entitled to a new tenancy if the landlord embarks on a redevelopment or a reconstruction of the property. In these circumstances a tenant is entitled to compensation as set out in the 1980 Act such as for example a right of compensation for disturbance.

The terms of a new tenancy if not agreed between landlord and tenant will be fixed by the court. These terms relate to duration, rent and allowance for improvements, The new tenancy is deemed to be a continuance of and a graft upon the old tenancy so that the tenant’s interest is subject to the same rights and equities.

The 1980 Act does not impose an obligation on a tenant to take a tenancy. Likewise, it does not automatically create an implied tenancy as there is uncertainty regarding a term of the implied lease until determined by the court. In addition, the landlord may have plans for reconstruction which did not go ahead due to a matter outside the tenant’s control e.g., Planning Authority requirements.

27 The tenant should not be obliged [as opposed to having a right] to take new tenancy in these circumstances. There is no provision in the 1980 Act which imposes an obligation for a tenant to take an implied lease for less than 5 years. I agree with counsel for the Defendant that the bringing of the application by the landlord is simply a means by which the process can be progressed. However, the underlying characteristic is that the entitlement is that of the tenant. Once the tenant decides not to proceed with the application and advises the landlord accordingly, there is no longer a tenancy to be fixed.

28 Section 28 of the 1980 Act cannot be used to create a new lease where it is not required by the tenant. The tenants can exercise their right to withdrawal, provided they have not used Section 28 of the 1980 Act to circumvent the Act. In other words, provided the tenant has not misbehaved. An example of misbehaviour is where the tenant has deliberately delayed the court process to frustrate the determination of a court decision

to the tenant’s advantage and the landlord disadvantage. I have not seen evidence that would justify this court taking the view that the tenant has misbehaved.

29 However, a withdrawal by a tenant has consequences of legal costs and it also means they are liable for the existing rent up to the date they vacated the premises. In addition, the tenant should, unless consent is agreed by the parties, apply to the court for leave to discontinue their claim for a new tenancy when they have lodged a claim for a new tenancy and that claim is pending before the court.

30 I was urged by counsel for the Plaintiffs to take ‘a purposive approach’ to the 1980 Act, which counsel stated was both sensible and principled. The Court has paid due regard to this argument. However, the court is bound by Mr. Justice McKechnie’s interpretation of Section 28 of the 1980 Act. While it was submitted that alternative solutions not open to Mr. Justice McKechnie in Harrisrange v Duncan [2003] 4 IR 1, are now open to this court, there is not in my view, some ambiguity in the legalisation which would justify such an approach.

31 The second solution suggested by the Plaintiffs’ counsel is that covered by Section 16 of the 1980 Act, whereby a new tenancy is granted under Part II of the said Act and commences on the expiration of the previous tenancy which, in this case 11th /12th of August 2018. However, there is nothing in the 1980 Act which obliges a tenant to take a term of less than five years or imply a tenancy when the tenant does not require it.

32 In regards the argument of estoppel, it would appear to rely on the argument that the conduct of the tenant would give rise to an unconscionable situation whereby the tenant received a tenancy at allegedly below market rent. In simple terms it states that it is unfair that the tenant does not pay an additional rent when it states it “resiles” from taking a new tenancy. The term “resiles’’ is not accepted by the Defendant. I accept the tenant remained in occupation of the premises. However, there is no provision in the 1980 Act which imposes an obligation for a tenant to take a retrospective expired lease for less than 5 years at a new market rent when the parties have both acknowledged that they failed to agree the terms of a new tenancy. There is no promise or conduct which in my view would give rise to estoppel by imposing an obligation on a tenant when there is so much uncertainty between the parties.

In summary this is an application by the Plaintiffs that the Defendant is liable to pay market rent throughout the period 12th of August 2018 - 31st of December 2022 and that it would be unfair for this court to hold otherwise. In this regard the court is invited to fix a new expired tenancy for that period. However, the proposition put forward by the Plaintiffs requesting the court to fix terms is made when the Oireachtas, has not sought fit to do so. This, bearing in mind the 1980 Act and its predecessor the Landlord and Tenant Act 1931 are ninety-three years of legislative guidance, which has not previously been successfully questioned. It is matter for the Oireachtas to change or amend the law if they sought fit to do so.

Accordingly, I prefer the arguments for the Defendant. I will hear the parties as to any costs submissions on such date as may be agreed between the court and counsel for the parties.