O'Byrne v M50 Motors Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Aindrias Ó Caoimh |
| Judgment Date | 01 November 2002 |
| Neutral Citation | [2001] IEHC 196 |
| Date | 01 November 2002 |
| Docket Number | Record Number 2001 No 140CA,[2001 No. 140 C.A.] |
| Court | High Court |
THE HIGH COURT
Record Number 2001 No 140CA
Landlord and tenant - Appeal from Circuit Court - Whether applicant entitled to new tenancy under terms of Landlord and Tenant (Amendment) Act 1980 - Whether the premises were bona fide used for the purpose of carrying on a business - Landlord and Tenant (Amendment) Act, 1980, s.13
Facts: The applicant was a tenant of the respondent in two premises in County Dublin. The applicant had carried on business in the premises and on that basis claimed to be entitled to a new tenancy from the respondent under the terms of the Landlord and Tenant (Amendment) Act, 1980.
It was an express term of the tenancy agreement in relation to one of the premises that it would be used as a private residence only. However, the premises were in fact used for the business. The issue was whether it could be said that same was bona fide used partly for the purposes of carrying on a business.
Held by Ó Caoimh in affirming the decision of the Circuit Court and refusing the applicant a new tenancy in the premises and further that the respondent was entitled to an order for possession of the said premises that the applicant had failed to establish a bona fide business user insofar as it was clearly in breach of an express term of the tenancy agreement.
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 1st day of November 2001.
The applicant is a tenant of the respondent in the premises of Oatlands House, Casteknock, County Dublin and also further premises known as 'The Mews' at Oatlands. The agreed factual position is that the applicant has carried oh a business in the said premises and on that basis he claims to be entitled to a new tenancy from the respondent in respect of each of these premises under the terms of the Landlord and Tenant ( Amendment) Act, 1980.
It has been indicated that Oatlands House is a substantial period residence and that the same has been listed under the Development Plan for the area.
The tenancy agreement in respect of Oatlands House in the instant case is dated 21st July 1988 and was made between the Knockmaroon Estate Company of the one part and the applicant of the other part. This tenancy determined by effluxion of time on the 30th March, 1989. The tenancy agreement in respect of The Mews was dated 4th August, 1989 and it appears that it determined on the 3rd August, 1990. The applicant held over under the terms of these agreements up to the date of the expiry of notices to quit served on him by the respondent. It was an express term of the tenancy agreements in relation to Gatlands House that the tenant would use same "as a private residence only for his own use". It is agreed that the subject premises were in fact used by the tenant in part for the Purpose of carrying on a business there.
Section 13 of the Landlord and Tenent ( Amendment) Act, 1980 provides, inter alia, as
follows:
"13.- (1) This Part applies to a tenement at any time if
(a) the tenement was, during the whole of the period of three years ending at that time, continuously in the occupation of the person who was the tenant immediately before that time or of his predecessors in title and bonafideused wholly or partly for the purpose of carrying on a business."
It is agreed that the respondent was not aware of the business user of the subject premises at any time prior to seeking possession herein. The issue is whether it can be said that the same was bonafideused partly for the purposes of carrying on a business.
On behalf of the applicant it is submitted that insofar as the premises was used partly for the purpose of carrying on a business that the same must be considered to have been bonafideused for such purpose and that the term "bonafideused" relates to the genuine nature of the business being carried on and that the same is not in any way qualified that the user may have been in express contravention of a covenant in the letting agreement.
In this regard counsel for the applicant has referred this court to the decision of O'Hanlon J in Plant v. Qakes [19913 1 I.R. 185 where he held that the business user in question in that case
was bonafideas it was genuine and not merely embarked upon as a subterfuge for the purpose of building up a "business equity" as a basis for a claim for a new lease under the Act.
In that particular case the applicant claimed that the dining room in the house was set aside as an office as a necessary adjunct to a garage business carried on by him in the garage premises at the foot of the avenue leading to the Dublin Road at the premises of Kilcannon House, Enniscorthy, County Wexford.
O'Hanlon J indicated at p. 187 that having heard the evidence in the case he was "driven to the conclusion that the house was, in fact, being used partly for the purpose of carrying on the garage business and as a necessary adjunct to the operations carried on in the garage proper, at all relevant times and certainly for a period of three years and upwards prior to the termination of the tenancy."
He then continued as follows:
"With regard to the meaning to be attributed to the phrase "bonafide"in the sub
section I think these words are probably intended to exclude a claim based on purported business user which was not genuine but was merely embarked upon as a subterfuge for the purpose of building up a "business equity" as a basis for a claim to a new lease under the Act of 1980."
Later in his judgment O'Hanlon J stated at p.188
"A nice question arises as to whether the tenant was under the obligation to apply for a 'change of user' permission before converting part of his residence to business
purposes, under the Local Government (Planning and Development) Acts, but the respondent did not seek to rely on this failure in resisting the claim to a new lease, and as I had previously decided in Terry v. Stokes(Unreported, High Court, 13th March, 1986) that I should not allow it to defeat a claim to a new tenancy, I would propose to adhere to that decision in deciding the present case."
On behalf of the respondent it is submitted that as the user in question in the instant case was in breach of an express term of the tenancy agreement and was not acquiesced in by the respondent, who in fact was unaware of the user at any relevant time until after the termination of the subject tenancy, that it cannot be said that the user is bonafidebusiness user. It is submitted that it is inconceivable that the court would grant a tenancy on the basis of a use which the court would have...
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Castletown Foundation Ltd v Magan
...2.17 of the Letting Agreement is fatal to the defendant's proposed defence of business user, in my view. In O'Byrne v. M50 Motors Ltd. [2001] IEHC 196 (a case cited by the trial judge), Ó'Caoimh J. held that the business user in issue in that case was in breach of an express term of the ten......