Haslett and another v Sharman and another

• Jurisdiction: Ireland
• Judgment Date: 18 February 1901
• Date: 18 February 1901
• Court: Queen's Bench Division (Ireland)

Haslett and Another

and

Sharman and Another (1).

K. B. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1901.

Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37), sects. 52 and 54 — Taxes — Poor-rate — Existing tenancy — Agreeement for tenancy made before the “appointed day” to commence after such day — Validity of contract that landlord should pay poor-rate.

The provision in sect. 52, sub-s. 2 of the Local Government (Ireland) Act, 1898, making void any contract entitling the occupier of a hereditament to deduct from his rent any part of the poor-rate does not apply to contracts to that effect contained in reversionary leases, or agreements for such leases, made before the “appointed day,” though not coming into operation until after that day.

By an agreement executed subsequently to the passing of the Local Government (Ireland) Act, 1898, but prior to the 1st of April, 1899 (the appointed day on which the provisions of the Act with respect to the incidence of poor-rate came into operation), the plaintiffs agreed to let to the defendants certain premises for a term of ten years from the 1st of May, 1899, “the landlord to

pay all taxes except water rate, which is to be paid by the tenant.” The water rate referred to was a personal charge.

Held, that on the principle of Scovell v. Gardiner (16 Ir. C. L. R. 318) the word “taxes” should be construed as including poor-rate, and that such construction was not affected by the fact that the agreement was entered into subsequently to the passing of the Local Government Act.

Held, also (dub. Lord O'Brien, L.C.J., and Boyd, J.) that the agreement having been entered into prior to the “appointed day” the tenancy thereby created was an existing tenancy within the meaning of ss. 52 and 54 of the Act, and that a contract by the landlord to pay poor-rate was valid.

Case stated by Mr. Justice Barton, on the hearing of a civil bill appeal from the Recorder of Belfast.

By agreement dated the 14th March, 1899, the plaintiffs agreed to let to the defendants certain premises in Belfast, for a period of ten years, from the 1st May, 1899, at the yearly rent of £300, “the landlords to pay all taxes except water rate which is to be paid by the tenants. The tenants to take out a lease if required.” The defendants were permitted by a special arrangement with the plaintiffs to take possession on the 1st March, 1899, but nothing turned on this, and the case was treated throughout as being one of a tenancy commencing in possession on the 1st May, 1899. No lease was ever taken out. The defendants having paid the poor-rate for the year 1900, deducted the amount (£15) from the rent payable by them to the plaintiffs. The plaintiffs brought the present proceedings to recover the £15 as balance of rent due. The “water rate” referred to in the agreement was admitted to be a personal charge. The “appointed day” on which the Local Government Act (Ireland), 1898, came into operation in so far as the present case is concerned was the 1st April, 1899.

Hanna (with him Harrison, K. C.), for the plaintiffs:—

We rely on two points. First by section 52, of the Local Government (Ireland) Act, 1898, the occupier cannot deduct poor-rate, and any contract to the contrary is void. The present is not an “existing tenancy” so as to bring the defendants within the exception in section 52, or the provisions of section 54. “Existing” means existing on the appointed day: section 109. An existing tenancy, means one existing in possession on the appointed day: Sproule v. Ramsey (1); Vernon v. Pile (2); secondly, even assuming that an agreement by the plaintiffs to pay poor-rate would be valid, there is no such agreement in the present case. The agreement is to pay “taxes,” and poor-rate is not a tax.

[Gibson, J. referred to Scovell v. Gardiner (3)].

Hume, K.C., and M'Ilroy, for the defendants:—

The whole scope and object of section 54 is to preserve existing rights. Sub-sect. 3, especially, is strongly in our favour. The relation of landlord and tenant now depends on contract, and there was here a contract binding the lands, in existence on the appointed day. Sproule v. Ramsey (1) does not apply; it is a decision on a very special section of a statute wholly different in policy from the present: Allhusen v. Brooking (4), decided under the Ground Game Act, is more in point and is in favour of defendants. As to the second point relied on by the plaintiffs, the exception in the agreement of “water rate” which is a personal charge, brings the case within the principle of Scovell v. Gardiner (3): see also Morrogh v. Hall (5).

Harrison, K.C., in reply:—

Scovell v. Gardiner (3) must be taken with reference to the law then existing; in the present case the agreement having been entered into after the passing of the Local Government Act the parties must be taken to have known that the landlord could not legally contract to pay poor-rate.

Counsel also referred to Hassard v. Clarke (6).

Cur. adv. vult.

Lord O'Brien, L.C.J.:—

My brother Gibson will read the judgment of the Court, in which I concur, though with some doubt, for reasons which I shall express afterwards.

Gibson, J.:—

The plaintiffs by contract in writing dated 14th March, 1899, agreed to let to the defendants certain premises in Belfast for a period of ten years certain, from the 1st May then next at the yearly rent of £300, payable quarterly, the landlords to pay all taxes except water rate, which was to be paid by the tenants. If this contract did not constitute an “existing tenancy” on the 1st April, 1899, any stipulation shifting the burthen of poor-rate from the occupying tenant on the landlord would be void under the Local Government (Ireland) Act 1898, section 52, sub-sect. 2. If it did constitute an existing tenancy the question then arises whether the contract (which does not mention poor-rate), on its true construction imposes liability for poor-rate on the landlords.

The case presents four points for consideration—1. Does section 54 of...