Corr v Ivers

• Jurisdiction: Ireland
• Judgment Date: 19 November 1949
• Date: 19 November 1949
• Court: Supreme Court

Supreme Court.

Corr v. Ivers

In the Matter of the Landlord and Tenant Act,1931, between PHYLLIS CORR, Applicant, and WILLIAM IVERS, Respondent (1)

Landlord and tenant - New tenancy - Tenant in occupation of part only of demised premises - Claim to new tenancy in part so occupied - Whether such part a "tenement" - Originating notice of motion claiming new tenancy in part occupied - Notice of intention to claim relief in respect of entire premises - Validity - Landlord and Tenant Act, 1931 (No. 55 of1931), ss. 2, 19, 20, 24, 25.

Case Stated pursuant to s. 16 of the Courts of Justice Act, 1947, by the Circuit Court Judge assigned to the Dublin Circuit (Judge McCarthy).

The Case Stated was as follows:—

"1. The application of Phyllis Corr, the above-named applicant, came before the Court on the 5th February, 1948, for an order under Part III of the Landlord and Tenant Act, 1931, declaring the applicant entitled to a new tenancy, pursuant to the provisions of the said Act, in the tenement consisting of the shop and room on the ground floor of the premises known as Number 56 Lower George's Street, Dun Laoghaire, in the County of Dublin, with the garage and loft at the rere thereof, together with the use, in conjunction with the tenants of the other portions of the said premises Number 56 Lower George's Street aforesaid, of the back hall, yard at rere, and the water and sanitary accommodation in the said yard, on such terms as may be fixed by the Court;

and that the Court do fix such terms and do order the respondent to grant to the applicant a new tenancy in the said tenement on such terms as may be fixed an in the alternative for compensation for disturbance and for costs of the application.

2. A copy of the notice of intention to claim relief, dated the 26th June, 1947, was on that date served by the applicant on the respondent pursuant to the provisions of s. 24 of the above act; and a copy of the originating notice of motion, dated the 28th November, 1947, was on that date duly served upon the respondent, pursuant to which notice the application referred to in para. 1 hereof was made. In answer to the said application a copy of notice of dispute, dated the 9th January, 1948, was duly served by the respondent on the applicant.

3. When the matter came before the Court on the 5th day of February, 1948, counsel on behalf of the applicant stated certain facts, which appear hereinafter as admitted facts, and, in making submissions of law, referred the Court to MacLoone v. North(1) and Conlon v. Lambe(2), decisions of the President of the Circuit Court, when Circuit Court Judge, and Mr. Justice Davitt, when Circuit Court Judge, respectively, and relating to the questions submitted in this case for the opinion of the Supreme Court, and also to the last paragraph of the judgment of Mr. Justice Murnaghan inMcManus v. Electricity Supply Board(3). I considered I ought to follow the said decisions reached in these cases. On the application of counsel for the applicant and on the applicant undertaking to pay to the respondent his costs of the hearing on the said 5th February, 1948, I decided to state this Case and accordingly adjourned the hearing of the matter pending the determination of such Case Stated.

4. The following facts were admitted:—

(a) The premises, Number 56 George's Street aforesaid, consist of (i) a two-storied building containing on the ground floor, a hall, lock-up shop, room, kitchen and backhall, and on the upper floor one room in front and two rooms at the rere thereof, bathroom and W.C.; (ii) a yard with water and sanitary accommodation, garage and loft.

(b) By an indenture of lease dated the 22nd September, 1926, between William Ivers and Timothy Delaney, of the one part, and Frances Godkin, of the other part, the said premises, Number 56 Lower George's Street aforesaid, were demised to the said Frances Godkin her executors administrators and assigns from the 1st October, 1926, for the term

of twenty-one years, subject to the yearly rent of £80 and to the covenants by the lessee and conditions therein contained.

(c) By an indenture of assignment dated the 28th February, 1944, and made between Frederick Wright, of the one part, and the applicant, of the other part, the premises demised in the said lease became vested in the applicant for all the residue then unexpired of the term of twenty-one years granted by the said lease subject to the rent thereby reserved and to the covenants on the part of the lessee and conditions therein contained and to the tenancy agreement referred to in the next following paragraph hereof.

(d) By agreement in writing, dated the 29th June, 1934, and made between Margaret Daft (hereinafter called "the landlord"), of the one part, and Agnes V. Hopper and Bridget T. Hopper (hereinafter called "the tenants"), of the other part, the landlord demised unto the tenants the rooms on the first floor comprising front sittingroom and two rooms at rere, bathroom and W.C. and front hall, with hall-floor entrance, and kitchen on ground floor, being part of the house and premises known as Number 56 Lower George's Street, Dun Laoghaire, in the County of Dublin, together with the sanitary accommodation in the yard at rere, from the 10th February, 1935, for the term of ten years, subject to the yearly rent of £78 and to the covenants by the tenant and conditions therein contained.

(e) On or before the 28th February, 1944 (the date of the assignment referred to in sub-clause (c) hereof of Number 56 Lower George's Street aforesaid to applicant) the applicant went into possession of the premises, Number 56 Lower George's Street aforesaid, and into occupation of the portion thereof on the ground floor consisting of the shop and room on the ground floor and the said garage and loft and the enjoyment of the user, in conjunction with the tenants of the upper portion of Number 56 Lower George's Street aforesaid, of the said back-hall, yard, water and sanitary accommodation, and used the whole of the said portion of the ground floor, the said garage and loft, and the enjoyment of the user as aforesaid of the said back-hall, yard, water and sanitary accommodation, for the purpose of carrying on thereon a drapery business.

(f) The applicant from the said 28th February, 1944, to the expiration on the 1st October, 1947, of the term granted by the said lease remained, by virtue of the said lease, in continuous possession of the premises, Number 56 Lower George's Street aforesaid, and occupation of the portion on the ground floor thereof mentioned in sub-para. (e) hereof and the said garage and loft and in enjoyment of the user as aforesaid of the said back-hall, yard, water and sanitary accommodation, and continuously during the whole of the said period bona fide used the said portion on the ground floor, the said garage and loft and the enjoyment of the user as aforesaid of the said back-hall, yard, water and sanitary accommodation for the purpose of carrying on thereon the said drapery business.

(g) The said Agnes V. Hopper and Bridget T. Hopper, the tenants of the upper portion of Number 56 Lower George's Street aforesaid under the agreement dated the 29th June, 1934, became tenants from year to year on the expiration of the said term of ten years, and in August, 1946, assigned their interest in the said upper portion to Mrs. Anne Frances Murphy and Miss Catherine Bergin who then went into occupation of the said upper portion of the said premises. From August, 1946, the said Anne Frances Murphy and Miss Catherine Bergin continued in occupation of the said upper portion of the said premises as tenants to the applicant, and used the said upper portion, partly as a residence and partly for carrying on a hairdressing business, and still occupy said premises for these purposes.

(h) All the estate and interest of the lessors in the premises demised by the said lease became vested in William Ivers, the respondent, prior to the 1st October, 1947, and continued to be and now is vested in the said respondent.

(i) The said yard is subsidiary and ancillary to the said portion of Number 56 Lower George's Street aforesaid mentioned in sub-clause (e) hereof and to the said garage and loft.

(j) The documents referred to in para. 2 hereof were duly served on the respondent on the dates mentioned in the said paragraph respectively.

5. Copies of the following documents are annexed hereto and form part of this case:—Lease, dated the 22nd September, 1926, Ivers and Delaney to Godkin; Tenancy agreement, dated the 29th June, 1934, Daft to Hopper and Hopper; Assignment, dated the 28th February, 1944, Wright to applicant; Notice of intention to claim relief, dated the 26th June, 1947; Originating notice of motion, dated the 28th November, 1947; Notice of dispute, dated the 9th January, 1948.

6. The questions upon which the opinion of the Supreme Court is sought are:—

(i) Is that portion of the premises, Number 56 Lower George's Street aforesaid, mentioned in clause (e) of para. 4 hereof, a tenement as defined by s. 2 of the Landlord and Tenant Act, 1931?

(ii) If the answer to question (i) is in the affirmative, is the applicant the tenant of the said tenement within the meaning of the word, "tenant," as defined by the said section?

(iii) If the answers to questions (i) and (ii) are in the affirmative, is the said notice of intention to claim relief, as served, an effective notice of intention to claim relief relating to the said tenement, as required by the Statute, in that it claims a new tenancy in premises other than the premises in which the applicant seeks a new tenancy?

(iv) If the answers to the questions (i), (ii) and (iii) are in the affirmative, is the said originating notice of motion a valid and effective notice of motion, as required by statute, in that it claims a new tenancy in premises other than the premises set forth in the notice of intention to claim relief, and not in all...