Question 27: House to be used for Specific Purpose

L rents a big apartment to T under the assumption shared by both parties but not explicitly stipulated in the contract that some rooms will be used by T as a surgery. However, the local authorities deny the permission for the surgery to be opened in the studio for fire protection and zoning law reasons. What are T’s claims?

This is an unusual scenario because, in practice, it is highly unlikely that T would commit to such a tenancy agreement without first ensuring that the necessary planning permission is in place. Also, the purpose(s) for which the parties intend the premises to be used would normally be stipulated in the contract.

In the unlikely event that such a scenario did arise, T may be entitled to seek to avoid the contract on the basis of the doctrine of frustration.149 However, the courts will not accept a plea of frustration lightly. T may run into difficulties here as the courts will not generally allow a party to rely on the doctrine of frustration where that party should have anticipated the happening of a particular event and included an express clause dealing with that eventuality in the contract.150

If L misrepresented the situation to T, then T would have a claim for breach of contract. T may also have a professional negligence action against his legal advisors (if any).

149On the doctrine of frustration in the context of landlord and tenant law generally see Wylie, J.C.W., Landlord and Tenant Law (2nd ed.) (Dublin: Butterworths, 1998) at para 26.14-26.15 and McDermott, P., Contract Law (Dublin: Butterworths, 2001) at para. 20.67.

150See McDermott, above, n. 149, at para. 20.11, citing McGuill v. Aer Lingus and United Airlines, unreported, High Court, October 3, 1983, McWilliam J.

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