Kavanagh v Whittle

• Jurisdiction: Ireland
• Court: Supreme Court (Irish Free State)
• Judgment Date: 01 January 1927
• Date: 01 January 1927

High Court.

Supreme Court.

Kavanagh v. Whittle.

JOHN KAVANAGH

and

SARAH WHITTLE (1)

Landlord and tenant - Rent restriction - Recovery of possession - Dwelling-house let unfurnished - Sub-let furnished - Whether Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, applicable thereto - Status of dwelling-house - Whether "greater hardship" to grant or refuse order for possession - Letting for "temporary convenience" - Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. 5, c. 17), sects. 9; 10; 12, sub-sects. (1) (g), (2), and(6) - Increase of Bent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), sect. 1 (h); sect. 3, sub-sects. (1), (3), (4); sect. 4,sub-sect. (1) (d).

Appeal from the Circuit Court.

The plaintiff, John Kavanagh, appealed from a decision of the Assistant Circuit Court Judge for Dublin (Judge Pigot) refusing, under sect. 4 of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, an order for possession of the house, No. 25 Victoria Avenue, Donnybrook, Dublin, on the ground that greater hardship would be caused by granting an order for possession than by refusing it.

On 29th January, 1914, the house was let unfurnished to the defendant's husband, Victor Whittle, on a monthly tenancy, at a

rent of £2 16s. 8d. a month. He died in 1919, and his widow, Sarah Whittle, the defendant, obtained the plaintiff's consent to remain on as tenant and take in lodgers in order to help to support herself and her three children. Owing to the ill-health of one of her children, the defendant went to reside in the County Wicklow, and she sub-let the house furnished in March, 1925, for a period of one year, expiring on 9th March, 1926. She had also let the house unfurnished for the year previous. She had ceased to reside in the premises after July, 1923. In August, 1925, the plaintiff served on the defendant a notice to quit expiring on 1st October, 1925. The plaintiff was a teacher of Irish, who stated in his evidence in the Circuit Court that he had left Dublin in 1920, and now desired to return and reside in the house. He had a wife and five children, who were residing in Castlemaine, Co. Kerry. In cross-examination he stated that he had "about 10 or 12 houses, big and small, in Dublin." The defendant stated that she also desired to return to the house when the sub-letting expired on 9th March, 1926.

The plaintiff appealed to the Supreme Court (1).

The tenant of a house in Dublin which had been let to him unfurnished died in 1919, and after his death his widow remained in possession as tenant. She had three children living with her in the house. Owing to the ill-health of one of them, she went to reside in the country. In March, 1925, she sub-let the house furnished for a year. She was in very poor circumstances, and in the country was living with her children rent free as caretaker of a school. The landlord served a notice to quit expiring on 1st October, 1925, and, possession not having been given up, took proceedings to recover possession. The landlord was a teacher of Irish, who had left Dublin in 1920, and was residing in Kerry with his wife and five children. He stated in evidence that he wished to return to Dublin to teach Irish, and wanted the house for his own use. On cross-examination he admitted that he owned ten or twelve other houses in Dublin. The tenant stated that she was about to return to the house. The rent at which the landlord let the house unfurnished to the tenant was within the limits prescribed for the application of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, and the tenant claimed the protection of that Act.

Held by the High Court, 1, that an order for possession ought not to be granted, as greater hardship would, owing to the special circumstances of the case, be caused by granting an order for possession than by refusing it; and 2, that the status of the house was not changed by the tenant sub-letting the house furnished.

Held by the Supreme Court (FitzGibbon and Murnaghan JJ.; Kennedy C.J. dissenting), reversing the High Court, that the landlord was entitled to an order for possession, as the tenant by sub-letting the premises furnished made them cease to be premises to which the Act applied.

Sullivan P. :—I am satisfied that the decision of the Circuit Judge was quite right. I was rather impressed with Mr. Maguire's reference to the case of Prout v. Hunter(1),but, on consideration of the facts, there is a chasm between the present case and that case. I am satisfied that the status of this house has not altered from an unfurnished to a furnished house. On the question of hardship, I think it would be a far greater hardship to dispossess this lady than to refuse possession to Mr. Kavanagh.

Hanna J. :—The defendant has the merits on the question of hardship. She is a widow with three children. Having temporarily to leave her house for the benefit of their health, she has been, and is, in unsatisfactory accommodation at the moment. The landlord is a man of property in Dublin. He has ten or twelve houses. He says he wants this house for himself. I think the learned Judge did not quite accept his story. Neither do I. He admits that he has good accommodation for his wife and five children in Castlemaine, but that he wants to come to Dublin to teach Irish. I doubt this. I agree with the President that it would cause greater hardship to grant the order for possession than to refuse it.

As to the legal point, I concur with the President that there is a chasm between the case of Prout v. Hunter(1), on which Mr. Maguire bases his main case, and the facts before us. I do not think we are bound by it, but we cannot but give it weighty consideration. I am of opinion that it cannot establish more than that if the status of the premises is in substance changed the Act may not apply. That is a question of fact. Here, the tenant leaves for a limited period by reason of an ordinary event of household life, the ill-health of a child. She obviously intends to come back to it as a residence. She had the permission of the landlord to have lodgers to eke out a scanty living after her husband's death. She lets the house with her furniture for a period during which she would be absent. She had only 25s. a week from the Orphan Society...