Hardman v Jordan

• Jurisdiction: Ireland
• Judgment Date: 16 April 1944
• Date: 16 April 1944
• Court: Supreme Court

Supreme Court.

Hardman v. Jordan

TOWNLEY GARRATT HARDMAN

Plaintiff

and

JOHN JORDAN, Defendant, and BRIDGET MURPHY, JOHN HUGHES, THOMAS WHITE, GEORGE SISSON and PETER E. O'BRIEN(Appearance Parties)

Defendants.

Landlord and tenant - Action for recovery of possession - Ejectment of building lease - Statutory right of proprietary sub-lessee to retain possession -"Building lease . . . terminated . . . by ejectment" - Sub-lessees in possession of entire premises under "proprietary leases" - Order for possession "without prejudice to rights" of sub-lessees - Validity and mode of execution of such order - Land "situate wholly in an urban area" - Houses adjoining village - Whether situate in urban area - Landlord and Tenant Act, 1931, (No. 55 of 1931), s. 2, s. 46, sub-s. 1, and s. 51; Landlord and Tenant (Ir.) Act, 1860 (23 and 24 Vict. c. 154), s. 52.

Summary Summons.

The plaintiff claimed possession of the lands comprised in, and demised by, an indenture of lease, dated the 20th December, 1935, made between Michael Cullen and John E. C. Cherry of the one part, and James O'Neill of the other part, together with the dwelling-houses erected thereon and known as Nos. 1 to 6 Brookville Park, Malahide Road, Coolock, in the Barony of Coolock and County of Dublin.

The indorsement of claim gave particulars of the said lease, which was for the term of 999 years from the 1st November, 1935, subject to the yearly rent of £45, and stated that, prior to the rent thereinafter referred to accruing due, the reversion expectant on the said lease had become vested in the plaintiff. The indorsement then continued as follows:—

"The said James O'Neill was adjudicated a bankrupt on the 11th day of June, 1940. The Official Assignee in Bankruptcy has declined the said leasehold interest but has collected rents from the tenants of the said premises. The sum of £90, being for one year and upwards of such rent, due and ending the 1st day of November, 1941, is due to the plaintiff. The defendant is a sub-tenant in actual possession of that portion of the premises known as No. 1 Brookville Park aforesaid." There followed particulars showing two years' rent due under the said lease.

Notice of these proceedings having been served on the tenants of the other five houses in Brookville Park, appearances were entered on their behalf and they were added as defendants.

The facts have been summarised in the headnote and are fully set out in the judgment of Haugh J. The original hearing was on affidavits, but by consent oral evidence was taken at an adjourned hearing on the question of whether or not these premises were situate in an "urban area,"as defined in the Landlord and Tenant Act, 1931.

Before the commencement of this action the plaintiff had brought similar proceedings for ejectment for non-payment of rent in respect of the same premises, against the Official Assignee in Bankruptcy: these proceedings, (reported sub. nom.Hardman v. Doyle(1)), were struck out on the ground that the Official Assignee had not elected to take the leasehold interest of O'Neill in the premises.

Apart from the question as to whether the demised premises were situate in an "urban area" (which ceased to be a material question in this case before the hearing of the appeal, by reason of the enactment of the Landlord and Tenant (Amendment) Act, 1943 (No. 10 of 1943)), the arguments were similar to those in the Supreme Court, reported post.

An order for possession of lands comprised in a certain lease, "without prejudice to the rights" of sub-lessees to retain possession of their holdings, is a valid order, notwithstanding that the entire premises are sub-let to such sub-lessees, and it may be enforced by the sheriff entering any part of the lands and declaring to any person found there that he is taking possession of the lessee's interest in the lands.

So Held by the Supreme Court, affirming the order of Haugh J.

Sect. 51 of the Landlord and Tenant Act, 1931, provides that, where a"building lease" is determined by ejectment for non-payment of rent, no immediate sub-lease thereunder which is a "proprietary lease" shall be thereby determined, but the lessor of the "building lease" shall become entitled to the reversion on such sub-lease. One of the essentials of a"building lease," as defined in s. 46, sub-s. 1, of the Act, is that the lands thereby demised shall be "situate wholly in an urban area": "urban area"is defined by s. 2 of the Act as "either a county or other borough, an urban district, a town or a village."

The plaintiff owned the reversion in a lease for a long term, made to one, O'N., of a plot of ground just outside the boundary of the City of Dublin and about a quarter of a mile from the village of Coolock. O'N. built houses on the entire of this plot and sub-let them to tho several defendants, O'N. subsequently fell into arrear with his rent and was adjudicated a bankrupt. The plaintiff brought proceedings for ejectment for non-payment of rent, naming one of the sub-lessees as defendant. Notice of the proceedings having been served on the other sub-lessees, they entered appearances and were added as additional defendants. The sub-lessees claimed the protection afforded by s. 51 of the Landlord and Tenant Act, 1931, to a sub-lessee holding under a "proprietary lease." At the date of hearing, substantial arrears of rent were due by O'N. to the plaintiff and also by the several sub-lessees to O'N.

Held by Haugh J., that, on the facts and on the construction of the Act, the premises were situate in an "urban area,"; that the sub-leases were"proprietary" leases, and the sub-lessees entitled to the protection afforded by the Act; and that the proper order to make was one analogous to that made in Sisk v. Cronin, [1930] I. R. 98, giving the plaintiff possession of the premises as against O'N., without prejudice to the rights of the sub-lessees to retain possession of there respective holdings.

The plaintiff appealed, on the grounds that an order in such form was unenforceable and that any relief given to the sub-lessees should by conditional on the discharge of all arrear of rent due to the plaintiff.

Held by the Supreme Court that the order of Haugh J. was valid and enforceable and that the appeal must be dismissed.

Cur. adv. vult.

Haugh J. :—

This is an action brought by the plaintiff, Townley Garratt Hardman, against John Jordan and five other defendants to recover possession of the premises set out in the special indorsement of claim to his originating summons, and is in the nature of an ejectment for non-payment of rent brought and founded on s. 52 of the Landlord and Tenant (Ir.) Act, 1860, and because two years' rent was due to the plaintiff at the time of the institution of the proceedings by one, James O'Neill, who is not a party to the suit.

The originating summons, issued on the 13th March, 1942, was served on the named defendant, John Jordan, of No. 1 Brookville Park, and a copy thereof was in addition served on Mrs. Bridget Murphy of 4 Brookville Park, John Hughes of 5 Brookville Park, Thomas White of 6 Brookville Park, and through their solicitor on George Sisson of No. 2 Brookville Park, and Peter E. O'Brien of No. 3 Brookville Park. All these named parties entered an appearance to this action, and by order of the Master made on the 5th of June, 1942, these appearance parties were named as additional defendants.

A copy of the summons was on Thursday, the 30th of

April, 1942, served on the Official Assignee in Bankruptcy as assignee of the property of one, James O'Neill, owner of the leasehold interest in the premises, who was adjudicated a bankrupt on the 11th day of June, 1940. No appearance to these proceedings has been entered by the Official Assignee.

The defendants are sued, being six persons in possession and occupation of six houses, Nos. 1 to 6 Brookville Park, erected on the whole of the plaintiff's lands. They claim protection under s. 51 of the Landlord and Tenant Act, 1931 (1), and have submitted that whatever order is made, it should in no way operate to disturb, or otherwise affect, their interests in these dwelling-houses.

The plaintiff in reply has contended that this section does not apply to these defendants or these houses, or that if it does, then not in the manner alleged by the defendants. The matter was argued before me for two days, and at the outset I would like to express my thanks to counsel for the plaintiff and defendants, respectively, for the help they have given me. They discussed the law in great detail, and have greatly assisted me in coming to a conclusion.

Before I announce my decision and the reasons therefor I feel I should at this stage state the facts as I find them proved in evidence given orally and through the documents handed in.

The owner in fee of these premises is the plaintiff, Dr. Garratt Hardman, who acquired this interest by deed of transfer, dated the 17th August, 1936, from the former owners in fee, and is now, as appears by the land certificate of the register of freeholders for the County of Dublin, described as the "full owner of the part of the land of Coolock, situate on the west side of the road from Coolock to Dublin, measuring in front to the said road

195 feet, in the rere 140 feet, and in depth from front to rere on the north 150 feet, and on the south 150 feet, as shown on the registry map of the townland" and burdened with the leasehold interest of one, James O'Neill, who acquired such interest for a term of 999 years from the 1st November, 1935, at the...