Hynes v Walsh

 
FREE EXCERPT

1999 WJSC-CC 3911

THE CIRCUIT COURT

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

Record No. 6897/93
HYNES v. WALSH

BETWEEN:

KEVIN HYNES and GRAINNE CONLON
Plaintiffs

and

PATRICK J. WALSH
Defendant

Citations:

WESTON V FIDLER (1903) 67 JP 209, 88 LT 769

UDC V ANTONIUZZI & ORS 226 EG 2155

DEALE LAW OF LANDLORD & TENANT 241

PRECIOUS V REEDIE 1924 2 KB 149

LITZOUW, STATE V JOHNSON & DUBLIN CORPORATION 1981 ILRM 273

PRYCE V MCLOUGHLIN UNREP CARROLL 25.2.82 1982/13/2584

WOODFALL ON LANDLORD & TENANT (1994) PARA 17.202

VONE SECURITIES LTD V COOKE 1979 IR 59

BEAMISH V COX 16 LR IR 270

COYLE V DUDDY 33 ILT 322

KANE & ANOR V MCCABE 1952 IJ 41

LYNCH V GLOVER 30 ILT 10

QUEENS CLUB GARDENS ESTATES V BIGNELL 1924 1 KB 117

WHITE V MITCHELL 1962 IR 348

DE BLACAM NOTICE TO QUIT 1987 ILT 140

WYLIE IRISH LANDLORD & TENANT LAW 575 PARA 23.20

COLFIX (DUBLIN) LTD V HENDRON BROS (DUBLIN) LTD 1948 IR 119

K V K 1986 ILRM 75

PORTMADOC UDC V ANTONLUZZI & ORS 266 EG 2155

WYLIE IRISH LANDLORD & TENANT LAW PARA 23.07

WOODFALL ON LANDLORD & TENANT (1994) PARA 17.208

Words & Phrases:

CEF

Subject Headings:

*

Judge McGuinness
1

These proceedings take the form of an Ejectment Civil Bill for Overholding by which the Plaintiffs Mr. Hynes and Ms. Conlon seek an order for possession of the premises known as Flat No. 62, Oak House, Mespil Estate, Sussex Road, Dublin, together with an order for mesne rates in the usual form. The circumstances surrounding the sale by Irish Life PLC of the Mespil Estate and the subsequent sale of individual flats, some occupied by long-term tenants, have attracted considerable publicity, not to say notoriety. It must, however, be made absolutely clear that in considering the case now before me the sole matters which the court can take into account are the evidence, both oral and documentary, presented by both sides, and the legal submissions made by counsel for the Plaintiffs and the Defencdant. All other matters must be strictly excluded.

2

The Plaintiff Mr. Kevin Hynes in evidence stated that he had been “offered” an apartment in the Mespil Estate by a Mr. Morrissey, whom he described as a family friend. He stated that as far as he knew Mr. Morrissey was the owner of the apartment. He paid the sum of £36,500 for the apartment which appeared to him to be good value. So far as he could recall he paid over the purchase price in January 1993. He described the second-named Plaintiff as his girlfriend and said that they bought the apartment in order to live in it. In order to purchase the apartment the Plaintiffs jointly obtained a mortgage from the Irish National Building Society and a letter of offer from the building society was handed in in evidence. This letter sanctions a joint mortgage in the sum of £35,650 bearing a sanction date of 25 January 1993. The security given is 62 Oak House, Mespil Estate. Mr. Hynes said that he was a barman and Ms. Conlon was a bank clerk, and that they were persons of limited means who could not afford to continue paying the building society mortgage while being unable to reside in the premises. This I accept.

3

Mr. Hynes produced to the court title deeds as evidence of the Plaintiffs” ownership of the premises. These gave a picture of a somewhat more complex transaction than that described by the Plaintiff in oral eveidence. The first document was an Indenture of Lease dated 9 December 1992 made between Irish Life Assurance PLC, Copse (Management) Ltd., Copse (Oak House) Management Ltd. and James Morrissey (in trust). This sets out in some detail a lease transaction including the rights and duties of the management company of the entire Mespil Estate and the management company of Oak House. The second document was an assignment of that lease dated 4 February 1993 from James Morrissey to the Plaintiffs. The lease is for a period of 500 years from the 1 October 1992. The assignment states that the lease was taken by the Assignor in his name at the request of the Assignee which provided the entire purchase money specified in the lease (£35,650) and that the Assignee has now requested the Assignor to assign unto them the interest vested in the Assignor by virtue of the lease which the Assignor has agreed to do. Counsel for the Defendant raised some queries in cross-examination in regard to this transaction but made no submissions to the court in regard to the title to the premises.

4

It seems clear that as and from 4 February 1993 the Plaintiffs were the legal owners of 62 Oak House, subject to the various covenants involving the management companies, which are irrelevant to the present proceedings.

5

Mr. Hynes also stated in evidence that he was aware at the time of purchase that the Defendant Mr. Patrick Walsh was a tenant in 62 Oak House, and he had been given the original tenancy agreement between Irish Life Assurance Co. Ltd. and Mr. Walsh, together with subsequent supplemental agreements, and these documents were also handed in in evidence.

6

In reply to cross-examination Mr. Hynes said that he had discussed the matter of Mr. Walsh's tenancy with Mr. Morrissey's solicitor and had been assured by him that he and Ms. Conlon “would be living in the apartment within one month”. This statement appears at the very least to have been somewhat bald and over-optimistic.

7

Mr Hynes went on to give evidence of the Notice to Quit, which he produced to the court and of its service on Mr. Walsh. The Notice to Quit is dated 24 February 1993, and it is accepted that Mr. Hynes served it personally on Mr. Walsh on that day I shall deal in greater detail later with the form and wording of the Notice to Quit. For the present it is sufficient to say that it required Mr. Walsh to quit the premises on or before 24 March 1993. It is accepted by both sides that Mr. Walsh did not quit the premises on that date and that he has remained living in 62 Oak house to date. Mr. Hynes stated that he had not accepted any rent from Mr. Walsh since 24 March 1993. He produced to the court the requisite Valuation Certificate. The present Ejectment Civil Bill issued on 31 May 1993.

8

The Defendant Mr. Walsh stated in evidence that he was a retired teacher aged 75. In 1974 he entered into a tenancy agreement with Irish Life Assurance Co. Ltd. in regard to his tenancy of the apartment at 62 Oak House. The tenancy commenced on 24 July 1974 and the rent at that stage was £54 per month. There had been various supplemental agreements which dealt solely with rent increases. The last of these was on 11 April 1991 and the rent at that stage was set at £260 per month. He stated that he had now been reared for ten years and that he had always regarded 62 Oak House as his permanent home. He also stated that he felt that as he was a servant of the State and that he was renting the flat from a State company he could rely on it being a permanent situation. He did not, however, give any evidence of a parole agreement between himself and Irish Life guaranteeing security of tenure, and no suggestion or claim in this regard was made by counsel on his behalf.

9

Mr Walsh went on to say that he had heard rumours about the sale of a number of the Mespil Flats, but that the first indication he had of the sale of his own flat was when a letter addressed to Mr. Hynes arrived in his letter-box. (It appears that this was a letter from the Irish National Building Society who had the address as security for the mortgage obtained by the Plaintiffs.) He was unable to obtain information from the estate office, but traced Mr. Hynes to his place of employment and was informed by Mr. Hynes that he and his girlfriend has been told that they would be living in the flat within a month. He accepted that the Notice to Quit had been served on him on 24 February. The Plaintiffs had called to the flat on 24 March 1993 and had asked him if he was moving out. He had refused to do so.

10

Mr. Walsh also said that he had attended a public meeting which had been addressed by the first-named Plaintiffs father, Mr. Dessie Hynes. Mr. Hynes Senior had informed the meeting that no one would be evicted but that the rents would be raised. Subsequently Mr. Hynes Senior had offered him an alternative flat in the estate, once he had moved out its tenants. However when he (Mr. Walsh) discovered that these tenants were elderly ladies he refused the accommodation saying that he would rather walk the street than be the cause of evicting elderly ladies.

11

Counsel for the Plaintiffs, Mr. Hussey, submitted that no estoppel could be set up against the Plaintiffs on account of statements made by Mr. Hynes Senior, and this is of course correct. The Plaintiffs in the present case could not be held to be bound by statements made by Mr. Hynes Senior either to the generality of the Mespil tenants at a public meeting or individually to the Defendant.

12

The Defendant stated that since 24 March 1993 he had at all stages endeavoured to pay the rent of £260 per month. He had paid by standing order from his account in the Bank of Ireland Walkinstown Branch. The payment was made to Irish Estate Management Ltd., to whom he had previously been paying rent. These payments were returned to him by Irish Estates each month except in the case of December 1993. A receipt was issued in respect of this rental payment but the payment was subsequently returned. Mr. Walsh lodged all these returned payments in a separate account. No particular submission in regard to the one receipt acknowledging payment of rent was made by counsel for the Defendant, and as the payment was returned I do not think that it...

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