Fitzsimons v Menkin

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1939
Date01 January 1939

High Court.

Supreme Court.

Fitzsimons v. Menkin.
JAMES J. FITZSIMONS
Plaintiff
and
JOSEPH MENKIN, Defendant (1)

Landlord and tenant - Action for recovery of possession - Possession sought by landlord for purpose of complying with requirements of local authority - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No.19 of 1923), sect. 4, sub-sect. 1 (e) - Whether sect. 4, sub-sect. 1 (e), only applies where landlord is a Government Department, local authority or statutory undertaking - Landlord required to repair or demolish dangerous building - around floor occupied by tenant Upper part only of building dangerous - Whether possession "reasonably required."

Appeal from the Circuit Court.

The plaintiff, in his Civil Bill, claimed possession of the shop, back parlour and basement of No. 6 Swift's Row, in the City of Dublin, "lately held by the defendant as weekly tenant of the plaintiff, at the weekly rent of 14s. 41/2d., which tenancy determined on the 31st August, 1936, by service of notice to quit." In his defence, the defendant relied on the protection of the Rent Restriction Acts. At the hearing, the plaintiff admitted that the tenancy was within the Rent Restriction Acts, but he relied on the exception contained in sect. 4, sub-sect. 1 (e) of the Act of 1923 and produced a notice, served upon him by the Borough Surveyor of the Dublin Corporation, requiring the owner or occupier of No. 6 Swift's Row to"take down, secure or repair" the front and back walls of the building. The plaintiff called expert evidence to the effect that the building was an old one that was not fit for use and he stated that he intended to rebuild the entire premises. The Corporation inspector responsible for the issue of this notice was called by the defendant; he stated that the requirements of the Corporation could be satisfied without disturbing the defendant's part of the premises, the walls up to the top of the ground floor being sound. The evidence of the plaintiff's architect was that rebuilding upon the old walls, from the first floor upwards, would cost about £340 and would not be a sound economic proposition; he stated that, if the defendant were left in occupation, it would cost an extra £40 to protect him and his premises while the upper part of the building was being reconstructed.

The Circuit Court Judge, holding that the plaintiff had brought himself within the application of sect. 4, sub-sect. 1 (e), of the Act of 1923, granted a decree of ejectment.

From this decision, the defendant appealed to the High Court.

The grounds of appeal were that the Circuit Court Judge had misdirected himself on the facts and was wrong in law in holding that the premises, the subject-matter of the action, were reasonably required for the purposes of sect. 4, sub-sect. 1 (e), of the Rent Restriction Act, 1923, or came within the provisions of the said sub-section, and also in holding that the plaintiff was entitled to possession of the said premises, and further that the judgment of the Circuit Court Judge was contrary to the evidence and against the weight of evidence.

In the Circuit Court it was not argued that sect. 4, sub-sect. 1 (e), was confined to cases where a Government Department, local authority or statutory undertaking was the landlord, this point being first raised by the defendant in the High Court.

The further facts are fulls set out in the judgment of Sullivan C.J. post.

From this decision the plaintiff appealed to the Supreme Court (1).

Sect. 4, sub-sect. 1, of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, provides:—

"No order or judgment for the recovery of any dwelling-house to which this Act applies, or for the ejectment of a tenant therefrom, shall be made or given unless

. . . . . . . . . . . . . .

  1. (e) the dwelling-house is reasonably required for the purpose of the execution of the duties, powers or requirements of any Government Department, or of the statutory duties, powers or requirements of any local authority or statutory undertaking;

and, in any such case as aforesaid, the Court considers it reasonable to make such an order or give such judgment."

F. was the owner of a four-storey tenement house in Dublin, the ground floor and basement whereof were occupied by M. for business purposes, as a statutory tenant under the Rent Restriction Acts. F. was served with a notice, from the Borough Surveyor of the Dublin Corporation, stating that the walls of the house were in a dangerous state and requiring the owner or occupier to "take down, secure or repair the same."F. ejected the several tenants of the upper part of the house and brought ejectment proceedings against M. in the Dublin Circuit Court, relying on the provisions of sect. 4, sub-sect. 1 (e), of the Act of 1923. The Circuit Court granted a decree for possession and from this decree M. appealed to the High Court.

Held, by the High Court (Maguire P. and Meredith J.), applying Irish Land Commission and the Board of Public Works v. Ruane, [1938] I. R. 148,that sect. 4, sub-sect. 1 (e), was applicable only to cases where a Government Department, local authority or statutory undertaking was itself the landlord of the premises in question; the appeal was accordingly allowed and the decree of the Circuit Court reversed. From this decision, F. appealed to the Supreme Court.

Held, by the Supreme Court (Sullivan C.J. and Geoghegan J.; Murnaghan J. dissenting), that the application of sect. 4, sub-sect. 1 (e), was not confined to cases where a Government Department, local authority or statutory undertaking was landlord, but extended to any landlord who could satisfy the Court that he reasonably required possession of his premises for the purpose of complying with some requirement made upon him by such a public body.

Held also, by the Supreme Court (Sullivan C.J. and Geoghegan J.) that the evidence was sufficient to justify the Circuit Court Judge in holding that possession was reasonably required by F. for such purpose and that it was reasonable to make an order for possession. The judgment of the High Court was accordingly reversed and the decree of the Circuit Court restored.

Irish Land Commission and the Board of Public Works v. Ruane, [1938] I. R. 148, considered.

Maguire P.:—

This case raises an interesting point which has recently —apparently for the first time—been raised in the High Court in another action. Although the...

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