Jordan and Another v O'Brien

• Jurisdiction: Ireland
• Judgment Date: 01 January 1961
• Date: 01 January 1961
• Court: Supreme Court

Jordan and Another v. O'Brien.

WINIFRED JORDAN and MONICA JORDAN

Plaintiffs

and

ELIZABETH O'BRIEN,Defendant (1)

Supreme Court.

Landlord and tenant - Action for recovery of possession - Statutory tenant - Death of tenant - Tenant's sister residing with tenant - Whether entitled to succeed to statutory tenancy as a member of tenant's "family" - Rent Restrictions Act, 1946 (No. 4 of 1946), s. 39, sub-s. 3 - Sub-letting of portion of premises by statutory tenant - Such sub-letting within scope of Rent Restrictions Act, 1946 - Whether landlord entitled as against tenant to recover possession of the portion of the premises so sub-let - Rent Restrictions Act, 1946 (No. 4 of 1946), s. 37, sub-ss. 1 and 2; s. 38.

M., the statutory tenant of controlled premises, died intestate and unmarried in 1952, leaving E., his sister, him surviving. E. had kept house for M. since their mother's death in 1907, and had been residing continuously with him on the premises throughout that period and for some time previously. Shortly after M's death, E. made a sub-letting of portion of the premises under conditions whereby the sub-tenant was protected from ejectment by virtue of the provisions of s. 38 of the Rent Restrictions Act, 1946, while remaining herself in occupation of the remainder. The landlords instituted proceedings by ejectment civil bill on the title, claiming possession of the premises. E. contended that she was entitled to retain possession of the premises by virtue of s. 39, sub-s. 3, of the Rent Restrictions Act, 1946, as being a member of the statutory tenant's family residing with him at the time of his death. A decree for possession was granted by the Circuit Court Judge, and, on the hearing of an appeal therefrom by the defendant to the High Court on Circuit, Murnaghan J. stated a case under s. 38, sub-s. 3, of the Courts of Justice Act, 1936, for the determination of the Supreme Court of the sole question whether the defendant was entitled to retain possession of the premises on her brother's death, by virtue of the provisions of s. 39, sub-s. 3, of the Rent Restrictions Act, 1946, his (Mr. Justice Murnaghan's) own decision in McCombe and Another v. Sheehan and Another[1954] I. R. 183 notwithstanding.

Held by the Supreme Court (Lavery, Kingsmill Moore and Maguire JJ.) that the word, "family," as used in the Rent Restrictions Act, 1946, s. 39, sub-s. 3 (b) and (c), is not to be construed in the narrow sense of parents and children, but rather in the wider sense in which it was used in the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923. The word,"family," was used by the Oireachtas in the Act of 1923 to introduce a wide and flexible term within which, save in very exceptional circumstances not shown to exist here, brothers and sisters would come. McCombe and Another v. Sheehan and Another[1954] I. R. 183 overruled on that point;Price v. Gould and Others 143 L. T. 333 approved.

The Supreme Court accordingly answered the question submitted to it in the affirmative, and remitted the matter to Murnaghan J. to determine the right of the plaintiffs to recover possession from E. of the portion of the premises the subject matter of the sub-letting.

Held by Murnaghan J. that, as E. had gone out of occupation of the portion of the premises sub-let, her right to retain possession of that portion was no longer protected by s. 37 of the Rent Restrictions Act, 1946. Foley v.Galvin[1932] I. R. 339 followed; Crowhurst v. Maidment[1953] 1 Q. B. 23approved.

Appeal from the Circuit Court.

Michael J. O'Brien was, at the date of his death intestate and unmarried on the 18th April, 1952, statutory tenant to the plaintiffs, Winifred Jordan and Monica Jordan, of the dwelling-house and shop premises, no. 14 William Street,

Galway, which were controlled premises within the meaning of the Rent Restrictions Acts, and in the shop portion of which he had carried on business as a victualler from the year 1903 until the date of his death. Throughout this period, his sister, the defendant, Elizabeth O'Brien, had resided with him on the premises. The original contract of tenancy between the plaintiffs' predecessor in title and Michael J. O'Brien contained no restriction on assignment or sub-letting, and at some time between the date of death of Michael J. O'Brien and the 7th July, 1952, the defendant had sub-let the shop portion of the premises to one, Mrs. Sabina Sarsfield, on a monthly tenancy at a rent of £13 per month, while never parting with possession of the dwelling-house portion. The portion of the premises sub-let to Mrs. Sarsfield, of which she was still in possession at the date of the hearing of these proceedings, was also controlled premises within the meaning of the Rent Restrictions Acts. An ejectment civil bill on the title addressed to the defendant and dated the 11th September, 1958, was served on the same day both on the defendant and on Mrs. Sarsfield. A defence to the civil bill was entered on the 6th October, 1958, in which the defendant's main ground of defence was that as sister of the deceased statutory tenant residing with him at the time of his death she was entitled to retain possession of the premises pursuant to s. 39, sub-s. 2 (b), of the Rent Restrictions Act, 1946. The ejectment civil bill was heard on the 28th January, 1959, when a decree for possession of the entire premises was made by the Circuit Court Judge (Judge Durcan).

From this decree the defendant appealed to the High Court on Circuit, and the appeal came on for hearing before Murnaghan J., sitting in Galway, on the 12th March, 1959.

At the request of the defendant, Murnaghan J. stated a case for the determination of the Supreme Court pursuant to s. 38, sub-s. 3, of the Courts of Justice Act, 1936.

The Case Stated was as follows:—

"This is a Case Stated by me under s. 38, sub-s. 3, of the Courts of Justice Act, 1936, at the request of the defendant/appellant for the determination of the question of law hereunder set out.

In this action, which was commenced by an ejectment civil bill on the title issued on the 11th September, 1958, the plaintiffs claim to recover possession of ALL THAT the house and premises with the appurtenances situate at no. 14 William Street in the City of Galway in the Parish of St. Nicholas Barony and County of Galway.

By his judgment given herein upon the 28th January, 1959, the Circuit Court Judge of the Western Circuit gave a decree for possession of the said premises claimed in the said ejectment civil bill. From this judgment the defendant/appellant appealed to the next ensuing sitting of the High Court on Circuit and the said appeal came before me on the Sittings of the High Court on Circuit in Galway on the 12th March, 1959. The pleadings in the action and the order made by the Circuit Court Judge are annexed hereto and form part of this Case Stated.

The facts as stated by counsel for the plaintiffs were admitted by the defendant and no evidence was given on their behalf. The defendant herself gave evidence. It was submitted by counsel for the defendant/appellant that the question of law involved was of sufficient importance to justify the stating of a case by me for the opinions of the Supreme Court and having heard the submissions by counsel I acceded to this request.

Mr. Kevin M. Kenny, Senior Counsel, and Mr. James Egan (instructed by Messrs. Henry Concanon and Co.) appeared for the plaintiffs/respondents and Mr. Conor P. Maguire, Senior Counsel, and Mr. J. Desmond Kearns (instructed by Mr. Patrick J. Gallagher) appeared for the defendant/appellant. By agreement between counsel for the parties I find the facts as follows:—

1. The premises the possession of which is sought by the plaintiffs/respondents in this action comprise a dwelling-house and business premises and are premises to which the provisions of the Rent Restrictions Act, 1946, apply and the defendant/appellant is in occupation of the said premises.

2. The said premises known as no. 14, William Street, Galway, were let by an agreement dated the 23rd May, 1903, and made between Martin Jordan of the one part as landlord and Michael J. O'Brien of the other part as tenant as and from the 23rd day of May, 1903, at the rent of £8 5s. 0d. per quarter. A copy of the said agreement is annexed hereto and forms part of this Case Stated.

3. All the estate and interest of the said Martin Jordan in the said premises subsequently became and is now vested in the plaintiffs/respondents.

4. The tenancy of the said Michael J. O'Brien in the said premises was determined by a notice to quit in the year 1942 and an ejectment civil bill for overholding was issued against the said Michael J. O'Brien by the above-named plaintiffs/respondents. The said claim in ejectment was dismissed, and by order of the Circuit Court Judge for the County of Galway, dated the 3rd June, 1943, it was declared that any tenancy of the defendant, Michael J. O'Brien, in the said premises otherwise than by virtue of the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923-1930, had been determined and it was ordered and adjudged accordingly. The said order of the Circuit Court is annexed hereto and forms part of this Case Stated.

5. By an order of the Circuit Court of Justice for the County of Galway made consequent upon an application by the plaintiffs/respondents to determine the basic rent of the premises to which this Case Stated relates and dated the 13th March, 1952, as amended the basic rent was fixed at the sum of £52 per annum, the rent to be payable at the same time and in the same manner as theretofore and the tenancy therein to be in all other respects the same as that created by the original tenancy agreement of the said premises made upon the said 23rd May, 1903, between Martin Jordan and Company and Michael J. O'Brien.

6. When the said Michael J. O'Brien became tenant of the said premises in 1903 there went to live with him in...