Blakes, Tenants; Sampson, Landlord

JurisdictionIreland
Judgment Date19 January 1916
Date19 January 1916
CourtCourt of Appeal (Ireland)
Blakes,
Tenants
and
Sampson,
Landlord (1).

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1916.

Landlord and Tenant — Lease made subject to Sub-tenancies — Sub-tenancies determined, and new Sub-tenancies created by Lessee in part originally sublet — Right of Lessee on Expiration of Lease to have fair rent fixed on remainder of Holding — Land Law (Ireland) Act, 1896 (59 & 60 Vict. c. 47), s. 7, sub-s. 3.

Where by a lease lands are demised subject as to a part thereof to sub-tenancies, and such part is sub-let at the expiration of the lease, the lessee is entitled under sect. 7, sub-sect. 3, of the Land Law (Ireland) Act, 1896 (2), to have a fair rent fixed on the remainder of the lands, being in his occupation, notwithstanding that the original sub-tenancies had determined during the currency of the lease, and new sub-tenancies had been created by the lessee, without the consent of the lessor, in the part sub-let at the date of the lease.

Appeal by the tenants from an order of the Land Commission dismissing the tenants' application to have a fair rent fixed.

The tenants, Miss Mary S. Blake and Miss Elizabeth C. Blake, had, on the 31st March, 1913, served an originating notice to have a fair rent fixed on the lands of Meelick, in County Galway, described as containing 105a. 1r. statute measure. The application was dismissed by the Sub-Commission on the ground that the holding was not mainly agricultural or pastoral in character.

The tenants served notice requiring the case to be re-heard before the Land Commission. At the re-hearing the landlord relied on three grounds: (1) That the holding was a residential holding. (2) That it was demesne laud. (3) That the holding was of much larger extent than 105a. 1r., and that the tenants were not in occupation of the holding, a large part being sub-let. The present report deals only with the last ground.

The case came on for hearing before Mr. Justice FitzGerald, with the assistance of an assessor.

It appeared that by a lease made on the 8th February, 1840, by predecessors in title of the present landlord, to a predecessor in title of the present tenants, certain lands which, for the purpose of the present report may be taken as containing 477a. 2r., statute measure, were demised to the lessee for a term of three lives, or thirty-one years. This lease expired in the year 1912. At the date of the lease part of the lands were in the occupation of sub-tenants, whose sub-tenancies had been created before the lease. Some of these sub-tenants, according to the evidence of Miss Mary S. Blake, whose knowledge dated from 1843, had left in 1847 and 1848, and the lessee had got possession of their holdings, and had kept part in his own possession, and made new lettings of part to other persons. At the date of the application to fix a fair rent about 350 acres were in the occupation of sub-tenants, most of whom had had fair rents fixed against the lessee.

Mr. Justice FitzGerald, in giving judgment, after stating the facts, proceeded to say:—

“The assessor had made a most careful examination of the premises, and he finds that:—(1) The Misses Blake are in occupation of 115 acres statute measure, of which his estimate of the fair rent is £77 3s. 7d. (2) That the sub-tenancies created since the lease of 1840 extend to 93a. 3r. statute measure, of which his estimate of the fair rent is £28 6s. 7d. (3) That other sub-tenancies in reference to which there is a dispute between the parties whether they were created before or after the lease of 1840, extend to 74a. 1r., on which he estimates a fair rent of £11 4s. (4) The other sub-tenancies admittedly created before the lease of 1840 extend to 185a. 3r., on which he places a fair rent of £104 7s.; and that in addition there are 8a. 3r. of waste. He has marked all these separately on the map which he has made, from which their position can be seen. As to the part in the occupation of the Misses Blake, he values the land at £65 3s. 7d., and the buildings at £30 a year. Of the buildings he considers one half belongs to the tenant that is due to work done since the date of the lease. He describes the buildings as” [description set out].

[Mr. Justice FitzGerald then dealt with the questions of whether or not the holding was residential, or was demesne land, and stated his reasons for holding that on neither of these grounds were the tenants precluded from having a fair rent fixed; and proceeded:—]

“As to the third question raised by the landlord, that the tenants are not in occupation of the holding within the meaning of the Land Law Acts, the area of the holding included in the lease of 1840 must be taken as 477a. 2r., statute measure, which was the area actually found by the assessor on his inspection of the premises, and marked by him on the recorded ordnance map.

Under sect. 7, sub-s. 1, of the Act of 1896, where part of a holding is sub-let, or in the occupation of another person, the tenant can only fix a fair rent if he remains in bona fide occupation of not less than seven-eighths in value of the holding as therein mentioned. In this case the tenants are only in bona fide occupation of 115 acres, of which the value, including the land-lord's buildings thereon, is £80 3s. 7d., while the land of the part sub-let or in the occupation of other persons is 353 acres, and the value thereof is £255 18s. 11d. Therefore, sub-sect. 1 of s. 7 does not bring the tenants within the Act.

Then come to sub-sect. 3 of s. 7, which enacts that where the property is let to the tenant subject to the tenancy of some other person in the part sub-let, the Court may in any case to which sub-s. 1 does not apply, direct that the part so sub-let shall thence-forth be a separate holding, and the Court may fix a fair rent on the remainder of the property. Under this sub-section I may exclude from the holding, and direct to be treated as a separate holding, the part sub-let before the lease of 1840, and which still remains sub-let; this amounts to 185a. 2r., or if you add thereto as most favourable to the tenant the sub-tenancies (about the date of which there is a dispute between the parties) of 74a. 1r., it will make 259a. 3r., and leave a holding of 208a. 3r., of which the Misses Blake are either in physical occupation, or which has been sub-let since the lease of 1840. This holding of 208a. 3r., including the landlord's buildings, is of the value of £112 16s. 2d., while the land of the portion sub-let since the lease of 1840 is of the value of £32 12s. 7d., that is to say, of the holding of 208a. 3r., between one-third and one-fourth in value is sub-let. There was no evidence given at the hearing of any consent by the landlord to the sub-lettings made since the lease of 1840. From residing in the neighbourhood he probably knew of them, and made no objection to them, as he had no legal power to do so, the lease of 1840 containing no covenant against sub-letting. Knowledge of a landlord of sub-lettings to which he has no power to object is not sufficient: Maconchy v. Robertson (1).

“I must therefore hold that sub-s. 3 of sect. 7 does not assist the tenants, and that even of the restricted holding under that sub-section they are not in bona fide occupation of seven-eighths in value, and that they were not in bona fide occupation at the expiration in 1912 of the lease of 1840, and no rent has been paid or received since that date.

I confirm the dismiss of the Sub-Commission, but on the ground of the tenants not being in occupation of the holding within the meaning of the Land Law Acts.”

An order was accordingly made by the Land Commission that the order of the Sub-Commission should be varied, and that the tenants' application should be dismissed out of court upon the ground that the tenants were not in occupation of the holding within the meaning of the fair-rent provisions of the Land Law (Ireland) Acts.

The tenants appealed to the Court of Appeal, asking that the order of the Land Commission Court should be discharged, and that the tenants' application should be remitted to the Land Commission with directions to proceed to fix a fair rent upon the tenants' holding.

A notice was served on behalf of the landlord (who had obtained leave from Mr. Justice FitzGerald to appeal) that on the hearing of the appeal he intended to contend that the appeal should be dismissed, if not on the ground stated in the order of the Land Commission (upon which he relied), then upon the ground that the holding was excluded from the fair-rent provisions of the Land Law (Ireland) Acts as being “demesne,” or in the alternative upon the...

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