Sometimes lawyers defend the unpopular. Defending the right of a landlord to seek an upward only rent review in a lease may be one such occasion. Sandeep Gopalan of NUI Maynooth makes such a defence on valid grounds.
As of 28 February 2010, upward only rent review clauses in commercial leases will not be possible. Section 132 of the Land and Conveyancing Law Reform Act 2009 provides for this in a round-about way which imposes a certain interpretation on any rent review clause, but it amounts to a ban on upward only reviews. The ban is a populist move, but bear in mind that it relates to contracts negotiated and agreed by commercial parties.
It can validly be argued that, during the boom, tenants were in a weaker bargaining position than landlords and were powerless to resist upward only rent reviews. But this is surely true of a range of contractual provisions in everyday agreements in respect of which the law does not interfere.
“If the state gets into the business of re-writing private agreements, it won’t have time to do much else.
Put another way, why stop with rent review clauses? Why not legislate to ban the variety of provisions which might be unfair to one party or the other?
One wonders what might be next for State intervention in private contracts. Many private individuals are seeking to escape from fixed rate mortgages entered into when rates were far higher than today. Purchasers freely entered into these arrangements, believing them to be better than variable rate mortgages at the time.
Having granted commercial tenants this special legal protection, why not make a similar intervention on behalf of suffering purchasers? Such a move would be fiercely (and fairly) resisted by financial institutions, but the Government would find it hard to justify its rush to action on behalf of commercial tenants while residential landowners suffer under the deal they struck.