Where a statutory provision renders a tenant's obligation to pay rent unenforceable (such as for failure to provide a disclosure statement), the landlord may nevertheless retain rent paid by the tenant under a mistake if the tenant received the benefit bargained for (use and occupation of the premises), and the landlord has an available counter-restitutionary claim for use and occupation in an amount equal to the rent. Section 8(2) of the Retail Tenancies Reform Act 1998 operates independently — the tenant's relief from liability to pay rent does not depend on the tenant having exercised its right to withhold rent. However, the defence may not be available where the disclosure statement would have revealed material deficiencies in the premises or lease terms.
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