Mason v Leavy

• Jurisdiction: Ireland
• Judgment Date: 01 January 1954
• Date: 01 January 1954
• Court: Supreme Court

Supreme Court.

Mason v. Leavy

In the Matter of the Courts of Justice Acts,1924 to 1947, and In the Matter of the Landlord and Tenant Act, 1931: CLEMENT MASON

Applicant

CHRISTOPHER J. LEAVY and JAMES LEAVY, Respondents CHRISTOPHER J. LEAVY and JAMES LEAVY

Plaintiffs

CLEMENT MASON, Defendant (1)

Landlord and tenant - New tenancy - Unroofed yard - Tenant installing underground concrete tanks and concrete foundations intended to carry machinery - Notice to quit served - Defence claiming benefit of Rent Acts - Application for a new tenancy - Notice of dispute denying that premises were a tenement under Landlord and Tenant code - Whether "premises"within definition in Rent Restrictions Act, 1946 - Whether "tenement"within definition in Landlord and Tenant Act, 1931 - Rent Restrictions Act, 1946 (No. 4 of 1946), s. 2 - Landlord and Tenant Act, 1931 (No. 55of 1931), s. 2.

Case Stated by Judge Connolly, one of the Judges of the Circuit Court for the time being assigned to the Dublin Circuit, pursuant to s. 16 of the Courts of Justice Act, 1947. The facts are fully set out in the Case Stated, which was as follows:—

"1. On the 16th November, 1949, an application by the above-named Clement Mason, pursuant to Part III of

the Landlord and Tenant Act, 1931, for an order granting to him a new tenancy of the premises hereinafter mentioned from the respondents, Christopher J. Leavy and James Leavy, came before me, sitting at Dublin. At the same time, an ejectment civil bill for overholding brought by the said Christopher J. Leavy and James Leavy, as plaintiffs, against the said Clement Mason in respect of the same premises also came before me.

2. The following facts were proved or admitted:—

The said Clement Mason (hereinafter referred to as 'the applicant') had held the yard adjoining the premises known as Number 112 Townsend Street, Dublin, as weekly tenant to the predecessor in title of the said Christopher J. Leavy and James Leavy (hereinafter referred to as 'the respondents') and subsequently from the respondents under an oral contract of tenancy at the weekly rent of 7s. 6d., since the year 1936. The said yard when taken by the applicant as tenant was covered with rubble and with the remains of some buildings which had become derelict. The applicant removed the rubble and the remains of buildings, and erected on the site thereof certain structures, as follows:—'two fifty-gallon oil storage tanks sunk underground and set in concrete on concrete foundations upon which are mounted oil pumps for dispensing oil from the tanks; a mechanical hoist for raising motor cars off the ground, the said hoist being set in position by excavating the site thereof to a depth of about nine feet, laying a mass concrete foundation twelve inches thick at the bottom of the said excavation, placing thereon a cylindrical oil tank of about fifty gallons capacity with a duct leading thereto from overground, setting the said tank in concrete, and filling in in concrete the excavation to ground level, the base of the hoist being set into the concrete surface of the yard, and the moveable part thereof resting on the said base; the situation and dimensions of the said hoist and of the other structures referred to herein are as shown on the plan and elevation annexed to this Case; a concrete well for a petrol storage tank of 500 gallons capacity, the base and side walls thereof being constructed in accordance with the requirements of the Dublin Corporation of 9-inch mass concrete (no petrol tank has in fact been fitted); a shore and drain for washing cars, the said drain leading to a specially-constructed mud trap constructed in two parts with man-hole covers thereon, the walls thereof being of 4¹/₂-inch mass concrete, leading into a drain in other premises, the property of the applicant, not the subject of these proceedings.' After the erection of the said structures (all of which, except for certain metal parts thereof, are below ground level) the applicant finished off the yard with a concrete surface, and erected at the entrance thereto from the public highway a door consisting of two revolving shutters which, when the door is opened, slide into a specially constructed beam over the entrance. The said structures were erected by the applicant shortly after he took the said yard, and were completed before the 7th May, 1941. The yard has been used by the applicant continuously since 1936 for the purpose of carrying on the business of motor engineer and garage proprietor. The tenancy of the applicant in the said yard was terminated by notice to quit, dated the 19th February, 1949. The Poor Law Valuation of the said yard is £10.

3. The applicant, served on the respondents, on the 21st July, 1949, a notice of intention to claim relief under the Landlord and Tenant Act, 1931, a copy of which is annexed to this case. At the hearing, the time for service of this notice was, by consent of the respondents, extended up to and including the 21st July, 1949.

4. It was submitted on behalf of the applicant that the structures referred to were 'buildings,' within the meaning of the Landlord and Tenant Act, 1931, and that the said yard with the said buildings thereon was a 'tenement,' within the meaning of the said Act. It was submitted, in the alternative, that the said yard was 'business premises,' within the meaning of the Rent Restrictions Act, 1946. Both these submissions were contested on behalf of the respondents.

5. If the structures referred to are 'buildings,' within the meaning of the Landlord and Tenant Act, 1931, I am of opinion that the portion of the land in the said yard which is not covered by such buildings is subsidiary and ancillary to such buildings.

6. The questions on which the determination of the Supreme Court is required are as follows:—

• (a) whether the said yard with the said structures thereon is a 'tenement,' within the meaning of the Landlord and Tenant Act, 1931;

• (b) whether the said yard is 'business premises,' within the meaning of the Rent Restrictions Act, 1946.

I agreed to state a Case for the opinion of the Supreme Court on these questions of law, on the application of the applicant, and directed that the applicant should have carriage of this Case Stated."

Copies of the ejectment civil bill, the defence, and the originating notice of motion and notice of dispute under the Landlord and Tenant Act, 1931, were annexed to the Case Stated.

The Case Stated was signed by the said Circuit Court Judge and was dated the 14th December, 1949.

A tenant took a lease of an open yard covered with rubble and derelict buildings. He cleared the ground and installed concrete petrol tanks and equipment to set up a petrol supply and motor service station. The landlord served notice to quit and instituted ejectment proceedings. The tenant in his defence relied on the provisions of the Rent Restrictions Act, 1946, and also served notice claiming a new tenancy under the Landlord and Tenant Act, 1931.

At the hearing it was submitted that the letting did not constitute either a "premises," within the meaning of the expression as defined in the Rent Restrictions Act, 1946, or a "tenement," within the meaning of that expression as defined in the Landlord and Tenant Act, 1931. The Circuit Court Judge stated a Case for the opinion of the Supreme Court on each of these submissions.

Held by the Supreme Court, unanimously 1, that the word, "premises,"in the Rent Restrictions Act, 1946, is not restricted to buildings only; it may include an open yard let for business purposes.

2, That the question whether any particular structure is or is not a building within the meaning of that expression where used in the Landlord and Tenant Acts, 1931 to 1943, and the question whether remaining land included in the take is or is not subsidiary and ancillary to such structure are questions of fact to be determined by the Circuit Court Judge.

Per Maguire C.J. (Black J. concurring explicitly on the first point and not dissenting on the second): A concrete well for a petrol storage tank although roofless and sunk below ground may be a building within the meaning of the Landlord and Tenant Acts. A stationary machine could not be a building notwithstanding that elaborate concrete foundations are laid to hold it in position.

White v. Freeman [1947] I. R. 55 not followed.

Cur. adv. vult.

Maguire C.J. :—

This is a Case Stated by Circuit Court Judge Connolly in which he submits for our consideration the questions whether the premises in respect of which the applicant seeks a new tenancy, pursuant to Part III of the Landlord and Tenant Act, 1931, (a) are a tenement within the meaning of the said Act, and (b) are business premises within the meaning of the Rent Restrictions Act, 1946.

A tenement is defined by s. 2 of the Landlord and Tenant Act, 1931, as "land or premises" complying with certain conditions, of which the only one necessary for consideration is that it " . . . is situate in an urban area and consists . . . of land covered wholly or partly by buildings."

The question whether premises come within this definition is one of fact for the decision of the Circuit Court Judge. This Court can only...