Flynn v McMahon

 
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The Circuit Court (An Chúirt Chuarda)

Dublin Circuit
County of the City of Dublin
Between
Brendan Flynn
Plaintiff
and
James McMahon
Defendant
Abstract:

Landlord and tenant - Notice of intention to claim relief - Oral tenancy - Whether premises constituted “tenement” within meaning of Landlord and Tenant legislation - Whether building ancillary and subsidiary to yard.

1

Judgment of His Honour Judge John F. Buckley delivered the 3rd day of May 2001

2

The landlord, Brendan Flynn, brought ejectment proceedings against the tenant, James McMahon, based on a Notice to Quit served on the tenant dated the 30th day of June 1998 and expiring on the 31St July 1998. The tenant held the premises at 80 to 81 (otherwise 80A) North King Street, Dublin, under an oral tenancy made between the landlord’s predecessor in title Property Promotions Limited and the tenant in or about the first day of January 1994. The landlord gave evidence that he had been advised by a principal of Property Promotions Limited when he purchased the premises in May 1998 that the tenant held under a weekly tenancy. The landlord adduced in evidence a Statutory Declaration made on behalf of Property promotions Limited on the occasion of the sale which included a statement that the tenant’s rent was £50 per week payable quarterly. Nowhere in this declaration was it stated that the tenancy was a weekly tenancy. The Defendant gave evidence that the tenancy was a quarterly tenancy. I preferred the tenant’s evidence and accordingly held that the Notice to Quit was insufficient to determine the tenancy and that accordingly the ejectment proceedings must fail.

3

The tenant in response to the Notice to Quit had served a Notice of Intention to Claim Relief under Part II of the Landlord and Tenant Acts. The landlord questioned the entitlement of the tenant to a new tenancy on the grounds that the premises held under the tenancy agreement were not a “tenement” within the meaning of the Acts. The parties agreed that it would assist them if I were to treat the Notice to Claim Relief as having been validly served, notwithstanding the fact that it was served in response to a Notice to Quit which I had found to be invalid, and determine the question of whether the premises held by the tenant were a “tenement”.

4

The tenant gave evidence that he carried on the business of a...

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