District Court Rules

ORDER 40B

LANDLORD AND TENANT PROCEEDINGS (EJECTMENT)

1 Definitions

1. In this Order, unless the context or subject matter otherwise requires—

the ‘1860 Act’ means the Landlord and Tenant Law Amendment Act Ireland, 1860;

any reference in an enactment to ‘ejectment’ must, for the purposes of this Order, be taken to include a reference to recovery of the possession of premises by a landlord or other person claiming to be entitled to possession of premises;

‘landlord and tenant claim notice’ means a claim notice beginning landlord and tenant proceedings in the District Court in accordance with these Rules, and any reference in an enactment to an ejectment civil summons must, for the purposes of this Order, be taken to include a reference to a landlord and tenant claim notice;

‘landlord and tenant proceedings’ means any civil proceedings which may be brought in the District Court between a landlord and a tenant, and any reference in an enactment to proceedings for ejectment or for the recovery of possession of premises in the District Court must, for the purposes of this Order, be taken to include a reference to landlord and tenant proceedings;

any reference to an ‘order’ must, for the purposes of this Order, unless the context otherwise requires, be taken to include a reference to a judgment, decree or dismiss.

2 Requirements of this Order additional to Order 40

2. (1) The provisions of this Order apply to landlord and tenant proceedings in the Court.

(2) The requirements of this Order are additional to the requirements of Order 40 as regards claim notices.

3 Additional particulars required in landlord and tenant claim notice

3. (1) A landlord and tenant claim notice must:

(a) specify the names of the landlord and the tenant;

(b) specify the nature of the tenancy and state whether the tenancy is required to be registered in the private residential tenancies register maintained under section 127 of the Residential Tenancies Act, 2004, and where the tenancy is required to be so registered, either (i) give particulars of registration or (ii) confirm that it is not so registered;

(c) contain a description of the premises to which the claim relates, including the full address and any other details necessary to establish the Court area in which the premises are situated;

(d) specify the rent under the tenancy;

(e) where it is part of the claim that the tenancy has determined, the facts of the determination of the tenancy and the means by which it was determined;

(f) where non-payment of rent is part of the claim, specify the amount

of rent due after all fair and just allowances, and the date up to which that rent was due;

(g) explain why the claimant is not precluded from bringing civil proceedings in the Court in respect of the tenancy by section 182 of the Residential Tenancies Act, 2004;

(h) set out the appropriate costs in the Schedule of Costs payable if the claimant’s claim is settled before appearance and defence.

(2) A claim notice claiming for the recovery of possession of premises from a tenant at will, a permissive occupant, or a caretaker or servant must also:

(a) state that a demand for possession was made by or on behalf of the owner of the premises;

(b) specify the date of the demand for possession;

(c) confirm the respondent’s refusal or omission to quit and deliver up possession.

(3) The Court may stay proceedings in respect of any tenancy which is required to be registered in the private residential tenancies register maintained under section 127 of the Residential Tenancies Act, 2004 but is not so registered.

4 Form of claim notice

4. A claim notice in a claim for:

(a) recovery of possession of premises for overholding,

(b) recovery of possession of premises from a tenant at will, a permissive occupant, a caretaker or a servant or,

(c) recovery of possession of premises for non-payment of rent

must be in accordance with Form 40B.01, Schedule C.

5 Service of claim notice

5. (1) A landlord and tenant claim notice must be served on every person in actual possession of the premises specified in the claim notice, whether as tenant, sub-tenant, or otherwise.

(2) The claim notice must be served in a manner prescribed in Order 41.

(3) Where the immediate tenant of the claimant in landlord and tenant proceedings is not in actual possession of the premises, the claim notice must be served on that immediate tenant in addition to any person on whom service is required under sub-rule (1).

(4) Where no person is in actual possession of the premises, a copy of the claim notice must be affixed to the door or some other conspicuous part of the premises claimed. In such a case, the affixing of a copy of the claim notice must be taken to be sufficient service of the claim notice.

(5) Where the person who was last in actual possession of the premises was a sub-tenant, and no person is in actual possession, the claim notice must also be served on the immediate tenant of the claimant, as provided by sub-rule (3).

6 Affidavits in claims for recovery of possession of premises for non- payment of rent

6. (1) In claims for recovery of possession of premises for non-payment of rent, the claimant may prove the nature and conditions of the tenancy and the amount of rent due by an affidavit sworn by the claimant or his or her authorised agent.

(2) An affidavit mentioned in sub-rule (1) must be filed with the Clerk.

(3) On reading an affidavit filed under sub-rule (2), where no respondent has served and filed an appearance and defence, the Court may make an order without requiring the attendance of the claimant in Court.

7 Stay of execution

7. On making an order on foot of any landlord and tenant claim notice claiming recovery of possession of premises, the Court may grant a stay of execution on such conditions as it thinks reasonable in the circumstances.

8 Payment or tender in claims for recovery of possession of premises for non-payment of rent

8. (1) At any time before an order on a claim for recovery of possession of premises for non-payment of rent has been delivered to the County Registrar or Sheriff for execution, the respondent or any person having a specific interest in the contract of tenancy may pay to the claimant:

(a) all rent and arrears of rent due at the time of the service of the claim notice, and

(b) a sum sufficient to cover the claimant’s costs,

or may tender those amounts to the claimant.

(2) If tender of the amounts mentioned in sub-rule (1) is refused, the respondent or other person having a specific interest in the contract of tenancy may deposit those amounts with the Clerk.

(3) The Clerk must give a receipt for any amounts deposited under sub-rule (2) and give notice to the claimant of receipt of the amounts deposited.

(4) In such a case, the Court may order that all further proceedings be stayed on payment to the claimant of the money deposited, and such further amount, if any, for costs up to the date of tender as the Court thinks reasonable.

(5) A decision of the Court under sub-rule (4) is subject to appeal as if it were a final order on foot of a claim notice in ejectment for non-payment of rent.

9 Writ of restitution

9. (1) When an order for possession for non-payment of rent has been executed, the Court may award a writ of restitution on the application of the respondent or any other person having a specific interest in the contract of tenancy.

(2) A writ of restitution may be awarded in accordance with sub-rule (1) on the payment to the claimant or the deposit with the Clerk of the amount due for rent, arrears of rent and costs within six months after the execution of the judgment, as provided by sections 70 and 71 of the 1860 Act.

10 Warrant for possession

10. (1) A warrant for possession under section 86 of the 1860 Act may be issued at any time not exceeding six months after the date of the order.

(2) After the expiration of six months from the date of the order a warrant may only be issued on application to the Court by the claimant by motion on notice to the respondent.

[SI 17/14]

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