Lyle v Smith

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 23 November 1908
• Court: King's Bench Division (Ireland)
• Date: 23 November 1908

Lyle

and

Smith (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'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.

1909.

Landlord and tenant — Lease — Covenant by lessee to contribute to repair of sea-wall — Liability of assignee of lessee — Covenant running with the land — Agreement incident to tenancy — Landlord and Tenant (Ireland) Act, 1860 (23 & 24 Vict. c. 154), s. 12.

Held, that the covenant ran with the land, and bound an assignee of the lessee.

Dewar v. Goodman ([1908] 1 K. B. 94; W.N., 1908, p. 250) distinguished.

Held, also, by Lord O'Brien, L.C.J., and Gibson and Kenny, JJ., that, even if the covenant did not run with the land in the strict sense, the effect of section 12 of the Landlord and Tenant (Ireland) Act, 1860, was to make the assignee liable.

Case Stated by Wright, J., on the hearing of a civil bill appeal. The case set out as follows:—

“1. This was an appeal from a decree of the County Court Judge of the county of Down granting a decree on a civil bill brought by the plaintiff against the defendant to recover a sum of £20 6s. 7d., being the amount of the defendant's proportionate part of the cost and expense incurred by the plaintiff in rebuilding and repairing the sea-wall at Ballyholme, in the county of Down, and for which the plaintiff alleges the defendant is liable under a covenant in an indenture of lease dated 26th day of January, 1901. The civil bill and decree are annexed hereto.

“2. By this said lease, the plaintiff demised to William Lynass certain premises” (now known as No. Bay View Terrace, and identified as those marked I. Smith on the map herewith,

and surrounded thereon by a green line, and which are situate on the south side of a road which, in the lease, is erroneously described as a county road) “for a term of 999 years from 1st May, 1901, in consideration of the yearly rent and covenants therein contained,” and (inter alia) the following covenant:— “And the said lessee hereby covenants with the lessor, his heirs and assigns, and also, as a separate covenant with other the reversioner or reversioners, that when and so often as it shall become necessary during the continuance of this demise to rebuild or repair the seawall and embankment along the Ballyholme Bay, he, the lessee, his executors, administrators, or assigns, will contribute and pay his proportionate part of the cost and expenses incurred in such rebuilding or repairing, such proportionate part being calculated in the following manner, that is to say—the lessor paying one half of the entire cost of such rebuilding or repairing, and the lessee paying his share of the other half, such share being in proportion to his frontage as such frontage shall be to the frontages of the other tenants of the lessor liable to contribute to the rebuilding of the said sea-wall and embankment.”

“3. The counterpart lease herewith, with map thereon, is admitted, and it is also admitted that prior to November, 1905, the lessee's interest under the lease became vested in the defendant, who paid the rent to the plaintiff and remained assignee until after the service of the present civil bill.

“4. The map herewith showing sections ‘X’ and ‘Y’ plan of the bay and coast-line at Ballyholme, and the further section ‘Z’ (signed J. E. Croasdaile, M.I.C.E.), were made by survey to scale, and are to be considered as incorporated in this case, and are admitted. Ballyholme Bay faces north, and prior to the erection of the sea-wall was subject to encroachment by the sea. Towards the horns of the bay the coast is rocky; in the centre it is composed of light, sandy soil, liable to erosion, resulting in encroachment by the sea on the coast-line. A number of villas face the bay; each has a strip of garden in front running down to the road. On the sea (or northern) side of the road is a grass slope or embankment, at the foot of which is the sea-wall. This wall is about 540 yards long, running from Folly Bridge on the west to within a few yards of the stream shown on the east side of the plan. The plaintiff and his predecessors owned the entire lands fronting the bay, including the site of the said seawall. In 1884 the tenant for life, Edward A. Lyle, erected the sea-wall. All the lands shown on the map are now within the Urban District of Bangor, but the eastern portion of the road fronting Bay View Terrace is not a county road.

“5. It was further proved that a storm occurred on the 26th November, 1905, causing the breaches in the sea-wall shown (coloured pink) at A and B on the plan. The breach at A was so large as to endanger the roadway at that point. These breaches were repaired by the plaintiff at a cost of £242. The whole of the wall and the wall as a whole is necessary for the protection of the coast. If a breach remained unrepaired, the sea would scour behind the remainder, and eventually the entire wall would be swept away. Ultimately the sea would undermine and destroy the roadway and villas beyond. At ‘Y’ the map the wall is 26 feet distant from the road, the road is 25 feet wide, and the centre of the road is 20 to 62 feet above the average high water of spring tides. At ‘Z’ the wall is 28 feet from the road, the road is 23 to 25 feet wide, and the centre thereof 22 to 53 feet above the said high-water mark; and at ‘X’ the wall is 39 feet from the road, the road is 31 feet wide, and the centre thereof 23 to 37 feet above said high-water mark. The shortest distance from the defendant's premises to the breach at A on the map along the line L M is 60 feet. At ordinary high tides the sea comes to the toe of the wall. The measurements in the lease do not include any portion of the roadway or land on the sea side thereof.

“6. Covenants analogous to that in the defendant's lease have been inserted in all new leases granted by the plaintiff since 1896 (other than renewals) to tenants of premises facing the bay. There are now seven tenants (including the defendant) whose leases contain such covenants. Their combined frontage is 184 feet 6 inches. The defendant's frontage is 31 feet. Dividing a moiety of £242, viz., £121, among these seven proportionately to their frontage, the defendant's proportion is £20 6s. 7d. There are other leases of premises which the said wall was built to protect which do not contain covenants similar to the covenants referred to in paragraph 2 hereof.

“7. The plaintiff contends that the defendant is bound by the covenant which, he alleges, runs with the land, and also that the reservation of the contribution towards the repair of the wall is part of the consideration for the demise and a term in the contract of tenancy. The defendant argues that the covenant does not run with the land or bind her as assignee, and, also, that the covenant is unmeaning, and, therefore, cannot be enforced. The question for the Court is, whether the defendant is bound under the terms of the lease to contribute towards the repair and maintenance of the sea-wall.

“8. If she is bound to contribute the amount, such contribution will be £20 6s. 7d.”

James Andrews (with him Harrison, K.C.), for the defendant:—

The sea-wall with which the covenant sued on is conversant forms no part of the demised premises; they do not even abut on it. The covenant is merely collateral, and does not run with the land. It does not touch or concern the thing demised, and therefore does not bind the assignee, even though named: Spencer's Case, 2nd resolution (1); Gower v. Postmaster-General(2). In order to run with the land, the covenant must touch the thing demised itself, and not merely the beneficial occupation of the thing: Dewar v. Goodman(3), Thomas v. Hayward(4). A covenant to do repairs to a wall not on the demised premises would not run with the lands, but even if it would, that is not the present case. The covenant here is merely to contribute a sum towards repair in the event of the lessor executing repairs, the landlord being under no obligation to execute them, and the tenant having no power to enter on the wall for the purpose of himself executing them. The only way in which a liability to pay such contribution could be made to bind the assignee would be, as pointed out by Kay, J., in Gower v. Postmaster-General(2), to reserve it as part of the rent.

Overend and Bates, K.C., for the plaintiff:—

We submit that the defendant is liable on three grounds:—

1. The contribution is in the nature of rent, and is recoverable from the assignee of the lessee as part of the rent reserved: Vyvyan v. Arthur(1).

2. The covenant is one which runs with the land. It most clearly touches and concerns the thing demised, since it is necessary to preserve the subject-matter of the demise from destruction. It tends to the support and maintenance of the thing demised—it affects its nature, quality, and value, and the mode of its enjoyment, and therefore runs with the land, and binds the assignee: Vernon v. Smith(2), per Holroyd, J. (p. 7); Mayor of Congleton v. Pattison(3), per Lord Ellenborough, C.J. (p. 135); Athol v. Midland Great Western Railway Co.(4); Jordan v. Wilson(5); Morland v. Cook(6); Sampson v. Easterly(7). The fact that the covenant is to contribute towards the expense of the repair, and not directly to execute the repair, is immaterial: Vernon v. Smith(2). If the landlord had not executed the necessary repairs, the tenant might have entered on the wall and executed them himself: Morland v. Cook(6) at p. 261. Dewar v. Goodman(8) is distinguishable; the covenant there related not to the thing demised itself, but only to the title to the thing demised.

3. Even assuming that the covenant does not run with the land in the strict sense, the effect of section 12 of the Landlord and Tenant (Ireland) Act, 1860, is to render the assignee liable. That section is not confined to covenants running with the land, but extends to all terms in the lease which are...