O'Gorman & Company Ltd v Jes Holdings Ltd

JurisdictionIreland
JudgeMr Justice Michael Peart
Judgment Date31 May 2005
Neutral Citation[2005] IEHC 168
Docket NumberRecord Number:No. 32 CA/2001
CourtHigh Court
Date31 May 2005

[2005] IEHC 168

THE HIGH COURT

Record Number:No. 32 CA/2001
A O'GORMAN & CO LTD v JES HOLDINGS LTD
IN THE MATTER OF THE LANDLORD AND TENANT (GROUND RENTS) ACT 1967– 1984
AND IN THE MATTER OF AN APPLICATION BY A. O'GORMAN & CO. LTD
AND IN THE MATTER OF PREMISES SITUATE AT CARRICK HOUSE, MAIN STREET, CARRICKMACROSS, CO. MONAGHAN

BETWEEN:

A. O'GORMAN & CO. LTD
RESPONDENT/APPLICANT

AND

JES HOLDINGS LTD
APPELLANT/RESPONDENT

LANDLORD AND TENANT (GROUND RENTS) ACT 1967 S4

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S8

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S10

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S9(1)(d)

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S9(1)(b)

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S9(2)

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S9(5)

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S9(1)(c)

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S9(1)(a)

KILLEEN v BARON TALBOT DE MALAHIDE 1951 IJR 19

CONCISE OXFORD DICTIONARY 8ED "ANCILLARY"

CONCISE OXFORD DICTIONARY 8ED "SUBSIDIARY"

FITZGERALD & ORS v CORCORAN 1991 ILRM 545

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S10(2)

WYLIE IRISH LANDLORD & TENANT LAW 2ED 1003

LANDLORD & TENANT (AMDT) ACT 1980 S45

MURPHY v O'NEILL 1948 IR 72LANDLORD & TENANT ACT 1931

CONSTITUTION ART 40.3.2

INTERPRETATION ACT 1937

DEASYS ACT 1860 S1

MASON v LEAVY 1952 IR 40

LYALL LAND LAW IN IRELAND 2000 38

LAND REGISTRATION RULES 1972 SI 230/1972 R30(1)(a)

WYLIE IRISH CONVEYANCING LAW 2ED 702

DALTON v ANGUS 1881 6 AC 740LAW OF PROPERTY ACT 1925 (UK)

METROPOLITAN PROPERTIES LTD v O'BRIEN 1995 1 IR 467, 1995 2 ILRM 383

LANDLORD & TENANT (AMDT) ACT 1984 S7

LANDLORD & TENANT (AMDT) ACT 1984 S7(1)

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)

LANDLORD & TENANT (AMDT) ACT 1984 S7(9)

LANDLORD & TENANT (AMDT) ACT 1984 S7(4)

LANDLORD & TENANT (AMDT) ACT 1980 S35(2)

LANDLORD & TENANT (AMDT) ACT 1984 S7(4)(d)

Abstract:

Land law - Whether the respondent/tenant had the right to acquire by purchase the fee simple in the appellant’s/landlord’s property - The Landlord and Tenant (Ground Rents) Act 1967 to 1984

Facts: The appellant/landlord appealed from the Order of His Honour Judge Hogan made in the Circuit Court, whereby on appeal from the determination of the County Registrar, the learned judge determined that the respondent/tenant had the right to acquire by purchase the fee simple in a dwelling house and premises leased from the appellant/landlord. In March 1998 the tenant, pursuant to s. 4 of the Landlord and Tenant (Ground Rents) Act, 1967 served a Notice of Intention to Acquire the fee simple in the aforementioned lands.

Held by Peart J. in dismissing the appeal: That the tenant was entitled to acquire by purchase the fee simple in the property leased from the landlord at a purchase price of €30,000 as he had complied with the conditions set out in the Landlord and Tenant (Ground Rents) Act 1967 to 1984.

Reporter: L. O’S.

Judgment of
Mr Justice Michael Peart
1

This matter comes before the Court by way of an Appeal (by way of rehearing) from the Order of His Honour Judge Hogan made in the Circuit Court on the 24th July 2000 by which the learned judge, on appeal from the determination of the County Registrar, determined as follows:

2

1. That the determination that the applicant, A. O'Gorman & Company Limited has a right, as incident to his existing interest in premises known as Carrick house, Main Street, in the town of Carrickmacross, County of Monaghan, to

3

enlarge that interest into a fee simple, and for that purpose, to acquire by purchase the fee simple in the said dwellinghouse and premises, and to acquire from the Respondent the Lessor its estate and interest in the said premises be and the same is hereby affirmed.

4

2. That the purchase price to be paid by the Applicant for the unencumbered fee simple in the said premises be and the same is hereby varied to the sum of twenty thousand pounds (£20,000).

5

3. That the only incumbrances on the property or any charges or mortgages thereon only affect the interest of the Applicant in the said premises.

6

4. That the person or company entitled to the fee simple in the said dwelling is A. O'Gorman & Company Limited.

7

5. That JES Holdings Limited be hereby ordered and directed to assign all its estate and interest in the fee simple in the aforesaid premises to A. O'Gorman & Company Limited.

6. That there be no order as to costs."
8

For convenience, I shall refer to the Respondent/Applicant, A. O'Gorman & Company Limited as "the tenant", and to the Appellant/Respondent, JES Holdings Limited, as "the landlord".

9

On the 2nd March 1998, the tenant, pursuant to s. 4 of the Landlord & Tenant (Ground Rents) Act,1967 ("the 1967 Act) served Notice of Intention to Acquire the Fee Simple in lands therein described as:

"ALL THAT AND THOSE the premises together with garden and outhouses occupied in connection therewith which said premises are situate at Main Street in the Town of Carrickmacross, Barony of Farney and County of Monaghan which premises are more particularly the subject matter of a Lease dated the 11th day of October 1945, Evelyn Charles Shirley of the One Part to Violet Daly of the Other Part."

10

The 2nd March 1998 is therefore the relevant date for assessing the entitlement to acquire the fee simple.

11

In the said Notice, particulars of the tenant's Lease or Tenancy were set forth as follows:

"Lease dated the 11th day of October 1945 and made between Evelyn Charles Shirley of the One Part and Violet Daly of the Other Part for the residue of the unexpired term of thirty two years from the 1st day of May 1919 subject to the covenants and conditions therein contained together with the further term of 50 years from the 1st day of May 1951 subject to the payment of fifty five pounds (£55.00) per year by equal half yearly payments on the 1st day of May and the 1st day of November in every year the first payment being due on the 1st day of November 1951 together with an Agreement made the 12th day of October 1970 between John Evelyn Shirley of the One Part and Margaret Mary Rennick of the Other Part wherein the said rent was increased to Seventy Five Pounds (£75.00) for the residue of the said term."

12

The general right to acquire the fee simple interest is containedin s. 8 of the Landlord and Tenant (Ground Rents)(No.2) Act, 1978 ("the 1978 Act"). That section provides:

"8.—A person to whom this Part applies shall, subject to the provisions of this Part, have the right as incident to his existing interest in land to enlarge that interest into a fee simple, and for that purpose to acquire by purchase the fee simple in the land and any intermediate interests in it and the Act of 1967 shall apply accordingly." (my emphasis)

13

The persons referred to in s. 8 and to whom the right to acquire the fee simple attaches are those described in s. 9(1) of that Act, as follows:

14

2 "9(1) - This Part applies to a person who holds land under a lease of the following conditions are complied with:

15

(a) there are permanent buildings on the land and that the portion of the land not covered by those buildings is subsidiary and ancillary to them;

16

(b) that the permanent buildings are not an improvement within the meaning of subsection (2);

17

(c) that the permanent buildings were not erected in contravention of a covenant in the lease; and

18

(d) one of the alternative conditions set out in section 10."

19

The alternative conditions in s. 10, one of which must be fulfilled for the purpose of s.9(1)(d) above are set out in s. 10 as follows:

"10. - ………"

20

1. that the permanent buildings were erected by the person who at the time of their erection was entitled to the lessee's interest under the lease, or were erected in pursuance of an agreement for the grant of the lease upon the erection of the permanent buildings;

21

2. that the lease is for a term of not less than fifty years and the yearly amount of the rent or the greatest rent reserved thereunder (whether redeemed at any time or not) is of an amount that is less than the amount of the rateable valuation of the property at the date of service under section 4 of the Act of 1967 of notice of intention to acquire the fee simple, or the date of an application under Part III of this Act, as the case may be, and that the permanent buildings on the land demised by the lease were not erected by the lessor or any superior lessor or any of their predecessors in title;

22

provided that it shall be presumed, until the contrary is proved, that the buildings were not so erected.

23

For the purposes of the condition provided for in s.9(1)(b) of the 1978 Act as set forth above, the term "improvement" is defined in s.9(2) as follows:

"9(2) - In subsection (1) (b) “improvement” in relation to buildings means any addition to or alteration of buildings and includes any structure which is ancillary or subsidiary to those buildings, but does not include any alteration or reconstruction of the buildings so that they lose their original identity."

24

Section 9(5) of the Act is important in relation to the condition to be fulfilled under s. 9(1)(c) namely that the permanent buildings werenot erected in contravention of a covenant in the lease. Section 9(5) provides:

"9 (5) - The arbitrator may declare a person to be a person to whom this Part applies notwithstanding that the buildings were, in whole or in part, erected in contravention of a covenant, if he is of opinion that it would be unreasonable to order otherwise."

25

The above statutory provisions embrace conveniently the various hurdles which the tenant must successfully clear in order to be entitled to require the landlord to convey...

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3 cases
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