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International Real Estate – Ireland

posted 2 months ago

Author

Louise Wright

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+353-1*****

My area of practice covers all aspects of property law, including the acquisition and disposal of apartment and office blocks, education centres, nursing homes, retail properties and residential tenanted properties; commercial leasing and all landlord and tenant issues; site assembly and the construction of apartment and office blocks; property portfolio sales and acquisitions; wayleaves and easements; property-related insurance claims; sale of brownfield sites; foreshore licensing; windfarm leasing; acquisition of sites for the construction of sub-stations; as well as licences for telecoms equipment.

I have extensive experience in guiding global investors and high-net-worth individuals as they work their way through the Irish commercial real estate market. I have specialist experience in advising on and dealing with landmark complicated multi-faceted and multi-jurisdictional property transactional matters and lettings (in some instances of national importance); the structuring, management, navigation and delivery of projects; requiring the ability to provide effective solutions to complex legal issues with legal precedent reference.

One of the key requirements to my successful handling of all transactional matters and projects is the skill of organisation and time management. This skill is a key component to the delivery of the matter from the “cradle to the grave”. It provides the foundation to map out and navigate the matter through to delivery. I am a reflective practitioner who operates from a base of professionalism, probity, process orientation and objectivity in the interests of my clients.

The depth of my understanding, knowledge and expertise in the real estate area is demonstrated in my writings, which have been published by Conveyancing & Property Law Journal, Round Hall, Thomson Reuters.

In addition, having qualified as a mediator and arbitrator, I have significant knowledge and understanding of the benefits of alternative dispute resolution (ADR) – i.e. conciliation, mediation, expert determination, adjudication and arbitration. This provides me with the tools on how and when to best advise clients to avail of ADR in the event of a dispute with a contracting party.

Since COVID-19, working arrangements for a significant number of office employees is either remote or hybrid. This has led to a change in demand for office space/buildings, which was the main foundation of commercial real estate. However, there continues to be a strong demand for residential properties, particularly with the current housing shortages. There is also a very strong demand for industrial and logistic units, as there is an undersupply of distribution and warehousing facilities. There is a steady demand for hotels, which benefit from global growth in air travel and tourism, coupled with an increasing transnational employment market. The healthcare sector enjoys a continuous and long-term demand for various subsectors, including private hospitals, nursing homes and medical centres providing primary care and residential care.

Taking account of the fact that climate change has become a global focus, with the urgent need to reduce our greenhouse gas (GHG) emissions, this has triggered multiple policy and legislative responses, both nationally and internationally, dealing with climate change. In December 2019, the European Commission published a communication on a European Green Deal, with an objective of becoming the world’s first climate neutral block by 2050.

The enactment of the Climate Action & Low Carbon Development (Amendment) Act 2021 by the Irish Government (https://www.irishstatutebook.ie/eli/2021/act/32/section/15/enacted/en/html), supported by the Climate Action Plan 2021 (https://www.gov.ie/en/publication/6223e-climate-action-plan-2021) – which was published on the 4th of November 2021 – provides a roadmap for the reduction of our GHG emissions by 51% by no later than 2030, as well as net zero by no later than 2050.

This has triggered an increase in the number of real estate investors focusing on sustainability and the circular economy, who are relying on ESG performance as a standard. Consequently, this is now having an impact on how due diligence and portfolio analysis is carried out, and on making investment decisions. The main focus of a real estate investor is to ensure that the value of the investment will always be preserved, as well as ensuring a dependable return in the future. Investors now recognise that buildings need to be operated and managed in a way that aligns with sustainability, requiring measures to reduce GHG emissions and the effects of climate change, while aligning these measures with ESG performance.

Investors in commercial buildings are seeking “green buildings” that have been rated with LEED or BREEAM certification, which are globally recognised certifications in respect of sustainability and environmental assessment. When investors are considering their capital returns, their assessment is that the investment property is of such a standard that will attract incoming tenants with a strong covenant. There has also been an increase in interest from tenants seeking green buildings taking account of ESG performance, which impacts their reputation. This has led to “green leasing”, which incorporates clauses in leases providing that the area demised is occupied, managed and kept in an environmentally effective and sustainable way, thereby minimising environmental impacts. Landlords will also seek these clauses wherein the building has been LEED or BREEAM certified to ensure that the certification is retained to the standard provided or higher. The implementation of green leases has been greatly assisted by the Chancery Lane Project, which is a global initiative to reduce environmental risks and impacts, providing a toolkit with various green clauses for leases.

Sustainability has also been placed as one of the key focuses of lenders, wherein a number of leading financial institutions are placing sustainability as a core principle of their corporate strategy.

One particularly notable case is Tesco Ireland Ltd (Landlord) v Stateline Transport Ltd (Tenant), [2023] IEHC 587. In this case, the Tenant was leasing an area from the Landlord for the storage of shipping containers (wherein the Tenant also washed the containers) for which there was no authorised use. The local authority served an enforcement notice in relation to the unauthorised use, and the Landlord then made an application to the High Court seeking an injunction ordering the Tenant to cease the said unauthorised use. The Tenant made an application for retention permission to the Planning Authority, which was refused.

During the proceedings, the Tenant had appealed the decision to An Bord Pleanála, for which there was no decision at the date of the judgment. The Tenant consented to the orders for a declaration to the effect that the use of the lands was unauthorised, and an injunction directing that the unauthorised use cease. However, the Landlord consented to a stay on the injunction for a period of up to 12 months to allow the Tenant the time necessary to relocate its business and procure the required retention permission. The court has a statutory discretion to defer, or even withhold, injunctive relief under Section 160 of the Planning & Development Act 2000 (2000 Act). Simons J. refused a stay on the injunctive order for a number of reasons. One of the main reasons related to the fact that the Planning Authority was unable to determine whether the unauthorised use would have a significant effect on any European site, raising issues of European law.

Certain developments require an environmental impact assessment (EIA) before a development consent is granted, pursuant to EU and national law. The Habitats Directive article 6(3), which affords the primary protection to European sites, outlines the requirement for an appropriate assessment (AA). A competent authority can only give consent following the AA if it has determined that it will not adversely affect the integrity of the relevant European site(s) that were considered as part of the assessment. The 2000 Act was amended, prohibiting retention permission wherein an EIA, screening for an EIA and/or an AA is required. The absence of an AA screening report in this case was one of the reasons the Planning Authority refused retention permission.

Environmental legislation has developed both nationally and at an EU level, and must be considered when making planning and retention applications.

This case demonstrates how fundamental planning and environmental compliance applies to all actors in – and all areas of – real estate, including: site development and acquisition of residential properties and commercial properties, as well as all licensed premises wherein there is a particular focus on compliance with fire safety, which is necessary for the success of licensing applications and renewals.

The recent Planning & Development Act 2024 (2024 Act) revises, consolidates and repeals various provisions of the Planning & Development Act 2000, overhauling the planning legislation. The reforms of the 2024 Act, inter alia, are as follows:

(i) Statutory timelines for all consenting processes, providing clarity and certainty to applicants;
(ii) The restructuring of An Bord Pleanála, which will be renamed as An Coimisiún Pleanála, which is an independent body determining appeals in relation to decisions on planning consents made by planning authorities;
(iii) Introduction of a reformed process for taking judicial reviews wherein residents’ associations and local communities will be required to hold a written constitution and then a vote among its members in order to take judicial reviews;
(iv) Incorporating appropriate levels of public participation in plan-making and decision-making processes;
(v) Making clear provisions for national planning policy, measures and guidance in the form of the National Planning Framework and National Planning Statements minimum requirements;
(vi) Ensuring consistency through the alignment of the relevant planning bodies;
(vii) Clearer, more consistent policies and guidance;
(viii) The introduction of Urban & Priority Area Plans, including new bespoke plans for Gaeltacht and Island communities, allowing for active local implementation;
(ix) Enhancing the plan-led approach to development and increasing certainty at the master-planning stage with the creation of the Urban Development Zones;
(x) Provisions preventing the abuse of the planning processes through spurious planning submissions and appeals; and
(xi) Allowing the suspension of the duration of a planning permission, which is subject to judicial review proceedings, preserving the time available for the completion of the development.

The 2024 Act allows for a more user-friendly and effective framework for the planning system. This system will facilitate and support the delivery of housing, alleviating the housing crisis and the development of land and infrastructural projects. It provides for proper planning and sustainable development of urban and rural areas in the interest of the common good, as well as the preservation, protection and improvement of the environment. Evidently, the reforms of the 2024 Act offer applicants a clearer and consistent pathway when making an application for planning permission. It is anticipated that the 2024 Act will lead to the simplification of the planning process with the granting of planning permission for both residential and infrastructural sectors. This is a welcome development for those working in real estate, as it allows for the navigation and mapping of proposed developments with projected timelines and delivery.

The importance of informing and recommending ADR, such as mediation and arbitration, to clients in the event of a conflict/dispute with the contracting party. There are a significant number of advantages with ADR, including that it is confidential, quicker than going to court, the parties have control of the process, it is cost-effective and more flexible, which varies depending on the type of ADR availed of. ADR has become a part of public policy, and the courts have been empowered to adjourn proceedings to allow the parties to avail of ADR in an effort to resolve disputes with the enactment of rules of court.

However, when considering ADR from the perspective of real estate, both mediation and arbitration require considerable focus.

In recent years, there has been significant promotion and development of mediation as a means of resolving disputes between conflicting parties. Mediation is supported by legislation through the enactment of the Mediation Act 2017 (2017 Act). S. 2 of the 2017 Act describes mediation as “…a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a Mediator, attempt to reach a mutually acceptable agreement to resolve the dispute…”. S.16 of the 2017 Act gives the courts the ability to invite the parties to consider mediation. If the parties reach a mutually acceptable agreement, then they can opt to enter into a binding or non-binding agreement. In the event that they opt to enter into a legally binding mediation settlement agreement, then a party can seek to have the said agreement enforced by the courts in accordance with S.11(3) of the 2017 Act. It is noteworthy that during COVID-19, the Department of Business, Enterprise & Innovation issued the welcome Code of Conduct between Landlord & Tenants for Commercial Rents on the 1st of October 2020, which applied until the 30th of April 2022, in an effort to assist and encourage landlords and tenants impacted by the financial shock to the economy due the pandemic to engage with each other in a reasonable way. The said code strove to identify mutually beneficial solutions, which could be considered by both landlords and tenants endeavouring to agree alternative arrangements.

Arbitration in Ireland is governed by the Arbitration Act 2010 (2010 Act), which incorporates the provisions of the UNCITRAL Model Law on International Commercial Arbitration (Model Law). Moreover, the 2010 Act gives force to the New York Convention of 1958, which deals with the enforceability of foreign arbitral awards, and the Washington Convention of 1965, which relates to the settlement of investment disputes between states and nationals of other states. One of the key benefits of arbitration is that it allows the disputing parties to appoint an arbitrator who is renowned for their technical expertise in the area that is the subject of the dispute. The outcome of arbitration is binding, grounds to challenge the award are very limited, and the award is enforceable.

When acting for a client in their capacity as vendor or purchaser of a premises, one should be cognisant of general condition 47, Dispute Resolution, forming part of the General Conditions of the Law Society 2023 (Revised General Conditions) Contract for Sale. The said general condition provides for the submission by the disputing parties – i.e. the vendor and the purchaser – of matters that are the subject of dispute listed at general condition 47(a) (i)–(ix) (which includes the materiality of any planning matter that is the subject of general condition 32(a)(i) and 32(f)(ii)) to mediation. In the event that the dispute cannot be resolved by mediation within 40 working days of the appointment of the mediator, or the mediation has not commenced within 20 working days of the appointment of the mediator, then the dispute will be referred to arbitration, which will be governed by the 2010 Act.

When acting for a landlord or tenant in relation to leasing arrangements, it is worthwhile referring them to mediation in the event of a dispute for reasons outlined earlier, as well as to preserve the existing landlord and tenant relationship, which is enduring for the term of the lease. A lease is a “living document” and requires a mechanism to allow the parties to reach a workable resolution while preserving the enduring relationship. In the event of a dispute over reviewed rent, by reason of the rent review provisions in the lease, it is usually referred to arbitration – as this facilitates the appointment of an arbitrator with the necessary expertise to deal with the matter.

Finally, construction and real estate are interwoven. The object of any construction project is to ensure delivery within a required timeframe, and the avoidance of overruns. Mediation and arbitration are contained in most construction contracts to ensure that delays due to disputes – particularly wherein there are many contracting parties – are minimised, allowing for the project to continue rather than coming to a standstill.

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