Baumann v Elgin Contractors Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1974
• Date: 01 January 1974
• Docket Number: [D. 3110]

Baumann v. Elgin Contractors

JOHN H. BAUMANN

Applicant

and

ELGIN CONTRACTORS LIMITED

Respondents.

[D. 3110]

Landlord and tenant - Tenancy - Creation - Implication of law - Lessee overholding on expiration of term granted by lease - Whether statutory right to new tenancy barred - Landlord and Tenant Act, 1931 (No. 55), s. 20.

The applicant had been in possession of a tenement under a lease for a term which ended on the 30th November, 1971. Before that date, he served on the lessor a notice of the applicant's intention to claim a new tenancy under the Landlord and Tenant Act, 1931. After the expiration of the term, the applicant continued in occupation of the tenement and paid rent to the lessor as if the term had not expired. Seventeen months after the expiration of the term, the applicant applied to the Circuit Court for an order declaring that he was entitled to a new tenancy under the Act of 1931. The application was refused and the applicant appealed to the High Court.

Held by Finlay J., in allowing the appeal, 1, that in the circumstances the creation of a tenancy could not be implied from the fact that the applicant continued in occupation and that the respondents received rent from him during such overholding.

2. That the applicant had a statutory right to a new tenancy under the provisions of the Act of 1931, and that the statutory right would not have been defeated if the creation of a tenancy could have been implied from the facts.

Farrell v. Barron [1938] Ir. Jur. Rep. 19 overruled.

Appeal from the Circuit Court.

The applicant held a tenement from the respondents under a lease dated the 28th December, 1950, for a term of 11 years which expired on the 30th November, 1971, subject to the rent reserved by and the covenants and conditions contained in the lease. On the 19th June, 1971, the applicant served on the respondents a notice of the applicant's intention to claim in the Circuit Court a new tenancy in the tenement on the ground that it had been used for business purposes. On the expiration of the term of years, the applicant continued in occupation of the tenement and paid rent to the respondents in the same manner as theretofore. On the 25th April, 1973, the applicant applied to the Circuit Court for a declaration that he was entitled to a new tenancy in the tenement under s. 20 of the Landlord and Tenant Act, 1931, and for an order settling the terms of the new tenancy. The respondents filed their answer on the 22nd May and on the 31st July, 1973, the application was heard and dismissed by His Honour Judge H. E. Wellwood who, applyingFarrell v. Barron1, held that the applicant was not entitled to a new tenancy in the tenement under the Act of 1931 because a new contractual tenancy had been created by the parties on the expiration of the term of years created by the lease. The applicant appealed to the High Court.

Section 19, sub-s. 1, in Part 3 of the Act of 1931 provides:— "(1) On the termination within the meaning of this section of a tenancy in a tenement, this Part of this Act shall apply to such tenement if such tenement complies with any one of the following conditions, that is to say:— (a) such tenement was, during the whole of the three years next preceding the termination of such tenancy,bona fide used by the tenant for the time being thereof wholly or partly for the purpose of carrying on a business and, immediately before such termination, either was held by the tenant thereof under a tenancy from year to year or under a lease or other contract of tenancy for a term of not less than one year . . ." Sub-section 2 of that section provides:—"(2) References in this section to the termination of a tenancy as a point of time shall be construed as referring . . . (b) in the case of a tenancy terminating by the expiration of a term of years or other certain period or by any other certain event, to the day which is three months before the expiration of such term or period or the happening of such event . . ."

Section 20 in Part 3 of the Act of 1931 provides:—"20.—Subject to the provisions of this Act, a tenant of a tenement to which this Part of this Act applies shall, on the termination of his tenancy in such tenement, be entitled to a new tenancy in such tenement on such terms as may be agreed upon between such tenant and his landlord or as shall, in default of such agreement, be fixed by the Court."

Section 24, sub-s. 1, in Part 4 of the Act of 1931 provides:—"(1) No claim for relief under this Act shall be maintained unless the claimant shall, within the time hereinafter mentioned, have served on the person against

whom such claim is intended to be made notice (in this Act referred to as notice of intention to claim relief) in the prescribed form of his intention to make such claim."Sub-section 2 of that section provides:—"(2) Every notice of intention to claim relief shall be served within whichever of the following times is applicable, that is to say, . . . (b) in the case of a tenancy terminating by the expiration of a term of years . . . not less than three months before the termination of the tenancy . . ."

Section 25, sub-s. 1, in Part 4 of the Act of 1931 provides:—"(1) A person who has duly served a notice of intention to claim relief may, at any time not less than two months after the service of such notice, apply to the Court to determine his...