Dunne, Tenant; Knolles and Babington, Landlords. Others, Tenants; Others, Landlords

• Jurisdiction: Ireland
• Judgment Date: 09 October 1896
• Date: 09 October 1896
• Court: Land Commission (Ireland)

Dunne

Tenant

and

Knolles and Babington

Landlords.

Others

Tenants

and

Others

Landlords (1).

Land Com.

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1896.

Landlord and tenant — Agreement and declaration fixing fair rent — Filing in Court — Agreement on reinstatement of tenant — Commencement of statutory term — Application to fix judicial rent for second statutory term — Time for application — Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), s. 8 (6), (8), s. 20, proviso (2) — Land Commission Rules (1st October, 1881), 100, 102.

Where the landlord and tenant of a present tenancy not subject to a statutory term by writing agreed and declared, pursuant to section 8, sub-section 6, of the Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), what was then the fair rent of the holding, and such agreement and declaration was subsequently filed in Court under that sub-section and Land Commission Rule (1st October, 1881), 102:—

Held, that the statutory term commenced from the rent day next succeeding, not the making, but the filing of the agreement and declaration; and, accordingly, that an application to the Court to fix the judicial rent of the holding for a second statutory term, made before the commencement of the last twelve months of a term of fifteen years from the rent day next succeeding such filing, could not be sustained.

The dates at which statutory terms commence in various cases of agreements fixing fair rents considered.

Semble — It was not competent for the parties by contract to alter the date from which the statutory term would run under the said Act.

In these cases originating notices to have fair rents fixed for second statutory terms were served by the tenants, but the officers of the Land Commission declined to accept the same, on the ground that the applications were made before the last twelve months of the current statutory terms had commenced: Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), s. 8, (8). The cases were accordingly placed in the Court list for argument.

The principal question was whether in the case of an agreement

and declaration fixing the fair rent of a holding, not subject to a statutory term, under section 8, sub-section 6 of the Act, the first statutory term commenced to run from the rent day next succeeding the making, or that next succeeding the filing of the agreement and declaration.

The subsidiary questions arising in the several cases are fully stated in the judgment of Bewley, J.

T. M. Healy, M'Cann, and A. Todd, respectively, for the tenants.

P. D. Fleming, Chambers, and J. W. Richards, respectively, for the landlords.

The following were referred to: Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), s. 8 (2), (3), (6), (8), s. 20, proviso (2); Land Law (Ireland) Act, 1896 (59 & 60 Vict. c. 47), ss. 4,52, and Second Schedule; Land Commission Rules (1st October, 1881), 100, 102; Kelly v. Enright (1); Beauclerk v. Hanna (2); Haire-Foster v. M'Intee (3); Woodside v. Massey (4); Givan v. Moffit (5); Conyngham v. Gallagher (6): Law v. Sinnamon (7); Church v. M'Poyle (8) Govern v. Peyton (9); Chaine v. Nelson (10).

T. M. Healy, M'Cann, and A. Todd, respectively, for the tenants.

P. D. Fleming, Chambers, and J. W. Richards, respectively, for the landlords.

Bewley, J.

In thirty-five cases listed for hearing before us on the same day, originating notices were served by the tenants of applications to the Court to fix the fair rents of their respective holdings, payable during a second statutory term, and in each case a question arose as to whether the application was not premature. In four cases no attempt was made to justify the institution of the proceedings, and the remaining thirty-one cases have now to be dealt with.

Section 8, sub-sect. (8) of the Land Law (Ireland) Act, 1881, provides, that during the currency of a statutory term an application

to determine a judicial rent shall not be made, except during the last twelve months of the current statutory term, and the question we have had to consider in each case is, whether the day upon which the originating notice was served was or was not within the last twelve months of the first statutory term. If it was prior to the last twelve months there is no jurisdiction whatever to entertain the application to fix a fair rent, and the originating notice must necessarily be dismissed.

In the majority of these cases the judicial rent was fixed by an agreement and declaration entered into and filed in Court under the provisions of sub-sect. (6) of sect. 8, of the Land Act of 1881, and the Rules made thereunder, and the right to maintain the present application depends on the date from which the first statutory term ran.

In some of the cases other questions arose which will be considered separately, but it will be more convenient to deal, in the first instance, with the question as to the date from which the first statutory term ran, where a judicial rent was fixed by an agreement and declaration in the precise form prescribed by Rule 100 of the Bules of the 1st October, 1881, filed in Court in the manner provided by Rule 102.

This question appears to me to depend wholly on the proper construction and effect of a few provisions of the Land Act of 1881. A statutory term is not an interest in land similar to the term granted by a lease. As stated by Holmes, J., in Peyton v. Gilmartin (1), “The legislation relative to the statutory term is based upon the continuance of the tenancy already existing, and does not involve the creation of a new tenure.” A statutory term is, in fact, a period of time during which an existing tenancy is subject to certain incidents and conditions, and it is entirely a creature of statute. Under sect. 4 of the Land Act of 1881, where a landlord demands an increase of rent from the tenant of a present tenancy, or demands an increase of rent from the tenant of a future tenancy beyond the amount fixed at the beginning of such tenancy, then, where the tenant accepts such increase, until the expiration of a term of fifteen years from the time when such increase was made (in the Act referred to as a statutory term),

such tenancy shall (if it so long continues to subsist), be deemed to be a...