Donnelly v O'Neill

JurisdictionIreland
Judgment Date09 April 1935
Docket Number(1934. No. 2335.)
Date09 April 1935
CourtSupreme Court (Irish Free State)
Donnelly v. O'Neill.
MARY DONNELLY and ELIZABETH DONNELLY
Plaintiffs
and
JEREMIAH O'NEILL. Defendant
(1934. No. 2335.)

Supreme Court.

Landlord and tenant - Rent Restrictions Acts - Decontrol - Dwellinghouse coming into possession of landlord - Part of dwellinghouse subsequently let - Application of the Acts - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), sect. 3. sub-sect. 1; sect. 4,sub-sect. 1; Increase of Rent and Mortgage Interest (Restrictions) Act,1926 (No. 24 of 1926), sect. 4; sect. 5, sub-sect. 1 - No. 5 of 1928, sect. 2 - No. 15 of 1929, sects. 2, 3 - No. 18 of 1930, sects. 2, 3.

Section 5, sub-sect. 1, Increase of Rent and Mortgage Interest (Restrictions) Act, 1926, provides:—

Where the landlord of a dwellinghouse to which the Principal Act [the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923] applies and of which both the standard rent and the rateable value exceed £20 is in possession of the whole of the dwellinghouse at the passing of this Act, or comes into possession of the whole of the dwellinghouse at any time after the passing of this Act, then from and after the passing of this Act, or from and after the date when the landlord subsequently comes into possession, as the case may be, the Principal Act shall, save as hereinafter mentioned, cease to apply to such dwellinghouse.

Held by the Supreme Court (FitzGibbon and Murnaghan JJ., Kennedy C.J. dissenting), affirming O'Byrne J., that when by the operation of the above sub-section the Principal Act ceases to apply to a dwellinghouse it does not apply to a part of such dwellinghouse let as a separate dwelling for the first time after the Principal Act has ceased to apply to the dwellinghouse, even though the standard rent or the rateable value of such part does not exceed £20.

Accordingly, where the Principal Act ceased to apply to a house by virtue of the above sub-section and the subsequent owners let one room of it to a tenant from week to week, the tenant was held not entitled to claim the protection of the Principal Act in an action brought against him to recover possession of the room, the tenancy having been duly determined by notice to quit.

Summary Summons.

The special indorsement of claim on the summary summons was as follows:—"The plaintiffs' claim is to recover possession of all that and those, the back drawing-room of the premises, 42 Eccles Street, in the Parish of St. George, in the County of the City of Dublin, let by the plaintiffs to the defendant as tenant from week to week, from the 20th day of April, 1934, at the weekly rent of 12s. 6d. payable weekly in advance. Plaintiffs duly determined the said tenancy by notice to quit expiring on the 29th day of June, 1934. The plaintiffs claim possession of the said back drawing-room."

The affidavit of Elizabeth Donnelly, grounding the summons, stated that she and her sister, Mary Donnelly, were the plaintiffs in the action, which was brought to recover possession of the back drawing-room of the premises, No. 42 Eccles Street, of which the defendant, Jeremiah O'Neill, was a weekly tenant at the weekly rent of 12s. 6d. under a verbal agreement made between her sister and herself and the defendant on the 20th April, 1934. The said tenancy had been duly determined by a notice to quit, dated the 19th June, 1934, and expressed to expire on the 29th June, 1934. The deponent further stated that she and her said sister had purchased the private dwellinghouse and premises, No. 42 Eccles Street, with vacant possession, in the year 1926, and same had been conveyed to them by conveyance dated 23rd September, 1926; that after the 23rd September, 1926, her said sister and herself, as purchasers of the said premises obtained exclusive possession of the entire of the said premises and subsequently went to reside therein, and had portion of the premises structurally altered, partitioned and converted into flats for the purpose of letting same. The deponent then stated that the present Poor Law Valuation of the entire premises was £35. She exhibited a certificate of valuation in respect of the said premises from which it appeared that the Poor Law Valuation of the premises on the 3rd August, 1914, was £28. She further stated that the rates chargeable on the said premises in the year ending the 31st March, 1915, amounted to the sum of £16 0s. 3d.; that on the 3rd August, 1914, the said premises were held upon a yearly tenancy by one, David O'Connell, from the then owner, Francis V. Cornwall, at the rent of £50 per annum; that the said rates were then payable by the landlord and that the standard rent of the said premises within the meaning of the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923-1930, was £33 19s. 9d. per annum.

The foregoing facts were admitted by the defendant, Jeremiah O'Neill, in an affidavit made by him, and in which he stated that the premises, No. 42 Eccles Street consisted of front room basement, back room basement, front room ground floor, back room ground floor, front room first floor, back room first floor, front room second floor, back room second floor, which was the room sought to be recovered in the action, from room third floor and back room third floor; that, admitting that the Poor Law Valuation of the entire premises was £35, he believed that, on an apportionment, the Poor Law Valuation of the said back drawing-room would be much less than £20.

The defendant appealed to the Supreme Court (2). The grounds of appeal were:—"1. That the said judgment is wrong in so far as it states that by virtue of sect. 5, sub-sect. 1, of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1926, no part of the premises, No. 42 Eccles Street, became subject to control by reason of a subsequent letting of a portion of the said premises. 2. That the learned Judge misdirected himself in law in holding that the provisions of the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923-1930, do not apply to the premises mentioned in the summary summons herein, viz., the back drawing-room of the premises, No. 42, Eccles Street, Dublin."

O'Byrne J. :—

It is provided by sect. 5, sub-sect. 1, of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1926, that: [Reads the sub-section] (1).

The entire dwellinghouse (speaking of it as a structural entity) comes within the provisions of the said sub-section. It was admittedly a dwellinghouse to which the Principal Act applied. Both the standard rent and the rateable value exceed £20, and the entire dwellinghouse came into, and was in possession of, the landlord (which term I construe as including "owner") after the passing of the Act of 1926. Therefore, in my opinion, the provisions of the sub-section applied so as to take the dwellinghouse out of the provisions of the Principal Act, and I am of opinion that the dwellinghouse did not, nor did any part of it, become subject to control by reason of the subsequent letting of a portion of the house.

I follow the decisions cited by Mr. Black, and may say that I would have arrived at the same conclusion in the absence of any authority on the point.

Cur. adv. vult.

Kennedy C.J. :—

This was an action of ejectment brought by summary originating summons in the High Court and tried by Mr. Justice O'Byrne, who gave judgment for possession in favour of the plaintiffs. The defendant has taken this appeal.

The premises, the subject of the action, were described in the indorsement on the originating summons as "the back-drawing-room of the premises, 42 Eccles Street, in the Parish of St. George, in the County of the City of Dublin, let by the plaintiffs to the defendant as tenant from week to week from the 20th day of April, 1934, at the weekly rent of 12s. 6d., payable weekly in advance." The plaintiffs determined the tenancy by notice to quit expiring on the 29th of June, 1934, and brought the action to recover possession by summary originating summons issued on the 19th of July, 1934.

When the action came on for trial in due course on affidavits, the only answer by the defendant to the claim was that the room in question is within the operation of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), and accordingly that an order for possession thereof must be refused. The plaintiffs in answer to this contention say that the room held by the

defendant is part of a house to which that Act has ceased to apply by the operation of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1926 (No. 24 of 1926), and that the effect of the last mentioned Act extends to as well the whole house as every part of the house (including the room in dispute) regarded separately. The learned trial Judge accepted the contention of the plaintiffs and held that the room was, by the Act, No. 24 of 1926, taken out of the operation of the Act, No. 19 of 1923, which would otherwise admittedly have applied to it, and therefore that there was no answer to the claim for possession.

The question of law raised is a difficult one on the construction of the Act, No. 24 of 1926, upon which there has not yet been a governing authority. It affects a number of cases and is of considerable importance. The facts are not in dispute. They are as follows:—

The two plaintiffs became seised of the messuage and premises, No. 42 Eccles Street, in the Parish of St. George and City of Dublin, as joint tenants for an estate in fee simple in possession by virtue of a conveyance thereof to them on purchase made on the 23rd of September, 1926. Upon the execution of the conveyance, vacant possession of the entire messuage and premises was delivered to the plaintiffs by the vendors. The plaintiffs thereupon went into actual personal occupation...

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2 cases
  • Logan and Schweppe v Donohue
    • Ireland
    • Supreme Court
    • 1 d0 Janeiro d0 1939
    ...provisions of the Acts and that the applicants were entitled to have standard rents fixed. Donnelly v. O'NeillDLTRDLTRIR, 68 ILTR. 210; 69 ILTR. 205; [1935] I.R. 286 explained and distinguished. Decision of the High Court reversing the Circuit Court decision (reported at (1936) 70 ILTR. 149......
  • Quinn v Redmond
    • Ireland
    • Supreme Court
    • 16 d6 Dezembro d6 1939
    ... ... times pointed out that "dwellinghouse" as used in the Act is not the same as the artificial term "dwellinghouse to which the Act applies": Donnelly v. O'Neill (1) ; Loganv. Donohue (2) ... The present case comes within the Act by virtue of s. 3, sub-s. 2, as being rooms in a dwellinghouse, ... ...

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