McMullen v Farrell

JurisdictionIreland
JudgeMr. Justice Barron
Judgment Date01 January 1993
Neutral Citation1992 WJSC-HC 765
Docket NumberNo. 2747p/1986,[1986 No. 2747P]
CourtHigh Court
Date01 January 1993

1992 WJSC-HC 765

THE HIGH COURT

No. 2747p/1986
MCMULLEN v. FARRELL & ORS

BETWEEN

MICHAEL COLIN GEOFFREY McMULLEN
PLAINTIFF

AND

CAREN FARRELL, JOHN FARRELL, THOMAS FARRELL AND J. MARCUS FARRELL PRACTISING UNDER THE STYLE OF FARRELL AND PARTNERS (FORMERLY ADAMS FARRELL AND COMPANY) AND ENDA GEARTY, FRANCIS GEARTY, AND PADRAIG GEARTY PRACTISING UNDER THE STYLE OF F. J. GEARTY AND COMPANY AND VINCENT BEIRNE, OWEN J. BINCHY, JOHN CALDWELL, BRIAN GARTLAN, FRANCIS MULVEY, MICHAEL O'HANRAHAN, AND HUGH FRANCIS O'NEILL PRACTISING UNDER THE STYLE OF BINCHY AND PARTNERS (FORMERLY FITZPATRICKS)
DEFENDANTS

Citations:

LANDLORD & TENANT ACT 1931 S56

LANDLORD & TENANT ACT 1931 S57

MIDLAND BANK TRUST CO LTD V HETT STUBBS & KEMP 1978 3 AER 571

LANDLORD & TENANT (AMDT) ACT 1980

Synopsis:

NEGLIGENCE

Solicitor

Client - Advice - Necessity - Adequacy - Pending legislation - Prospective effect - Scope of solicitor's duty - (1986/2747 P - Barron J. - 18/2/92) - [1993] 1 I.R. 123 - [1992] ILRM 776

|McMullen v. Farrell|

PROFESSIONS

Solicitors

Client - Advice - Necessity - Adequacy - Pending legislation - Prospective effect - Scope of solicitor's duty - (1986/2747 P - Barron J. - 18/2/92) - [1993] 1 I.R. 123 - [1992] ILRM 776

|McMullen v. Farrell|

1

Judgment of Mr. Justice Barron delivered the 18th day of February 1992.

2

In 1971 the Plaintiff entered into an agreement to take a lease of Charleville Castle, Tullamore. The castle was at that time in the ownership of the Hutton Bury family. The Plaintiff had become acquainted with the castle through an advertisement for Lloyds Bank in which the castle was used as a background. He formed the intention of living in the castle and of renovating it. His negotiations with the landlord were to take a lease on this basis. He commenced work sometime in September 1971 and the lease was finally executed on the 11th of August 1972. It was for a term of 35 years with an option to the lessee to renew for a further 25 years.

3

The castle itself was surrounded by walled gardens, the total area of which was something over five acres. It was intended that the lease should be of the entire of this walled-in area. Unfortunately since the area was in excess of five acres it would have been necessary to obtain the consent of the Irish Land Commission to make a lease of the entire. To avoid doing so, it was agreed that portion of the walled-in area should be retained by the landlord and that the Plaintiff should merely have a use of that area. As a result the lease was of 4.98 acres and there was an area in front of the castle of which the Plaintiff only got the use.

4

The material covenants on the part of the lessee contained in the lease were as follows:-

5

3. As soon as possible but at very latest within three years from the date hereof at his own expense to make the castle wind and water tight and to replace all broken glass in the windows and within six years in good and substantial and workmanlike manner to repair the said demised premises both interior and exterior to the satisfaction of the lessors and their agent, provided that the landlords and their agent shall not be unreasonable in this regard.

6

7. Not (without the consent in writing of the lessors or their agent) to use or permit the demised buildings for the purpose of carrying on any trade or business or for any purpose other than as a private residence.

7

11. Not to assign sublet or part with the demised premises or any part thereof.

8

The lease also contained a covenant for quiet enjoyment on the part of the lessor in the following terms:-

"The Lessors hereby covenant with the lessee that the lessee paying the rent hereby reserved and observing and performing in the covenants and conditions herein contained and on his part to be performed and observed shall and may peaceably and quietly hold and enjoy the said premises hereby demised during the term hereby granted without any lawful interruption or disturbance by the lessors or any person or persons claiming under or in trust for them."

9

There was also a provision that at any time after the expiration of the first three years of the term the Plaintiff could surrender his interest to the lessor.

10

The castle was situate on the outskirts of the town of Tullamore and was approached by a driveway .8 of a mile in length which ended up at the main gates of the walled-in area of the castle itself. Because the castle could not be said to be in the town of Tullamore the demised premises were not a tenement within the meaning of the Landlord and Tenant Act 1931and accordingly the provisions of Sections 56 and 57 of that Act did not apply to the lease with the result that the covenants as to user and alienation had to be read as they appeared in the lease and not as amended by those sections had the premises been a tenement.

11

Because the castle had been unoccupied since 1912 the townspeople of Tullamore had come to regard the avenue up to the castle and the castle and its enclosed gardens as a place where they could walk around and picnic. The landlord was fully aware of this situation but assumed that once the castle became occupied that its occupant would be left to his privacy. The landlord himself farmed the surrounding lands of some hundreds of acres. Unfortunately the townspeople of Tullamore continued to regard the castle and its grounds as their property and once the Plaintiff started renovations they showed considerable interest in what he was doing. The evidence does not indicate the state of affairs between 1971 and 1976 in any great detail. I think it sufficient to say that in 1976 because of what the Plaintiff regarded as the invasion of his privacy he reached agreement with the landlord whereby a wall could be built across the front of the castle for the sole purpose of keeping out members of the public from Tullamore who came up the avenue with the sole purpose of strolling in the castle grounds. This wall when it was built unfortunately created more problems than it solved. First of all it did not stop the townspeople of Tullamore from invading the privacy of the Plaintiff. Secondly it was necessary to have gates in the wall at the points where the wall crossed the avenue inside the castle walls. While the landlord was nominally in possession of portion of the area within the walls in front of the castle he also retained actual possession of a farm building in the yard which he used. The landlord needed to go through the gates in the new wall to get to his building. The Plaintiff however placed locks on these gates and this led to trouble.

12

Although clearly the Plaintiff and his landlord must have been on reasonably good terms for the landlord to consent to the building of the wall in 1976 the arguments which thereafter arose by reason of the locks placed on the gates by the Plaintiff resulted in considerable bitterness and on one occasion in the yard in 1977 the parties actually came to blows. Also in 1977 the Plaintiff decided to have a furniture auction on the premises. When his landlord discovered this he made efforts to prevent the auction on the ground that it was a breach of covenant. At this point the Plaintiff instructed a local Solicitor, Mr. Farrell. An injunction was obtained in the High Court to restrain the landlord from interfering with the auction. Although there was some reference in the evidence to the fact that the premises were also for sale on this occasion I think on the probabilities that that was not so and that the only matters which were auctioned were items of furniture.

13

The stringency of the covenants became apparent at this stage. Mr. Farrell had advised the Plaintiff that as the premises were not a tenement within the meaning of the Act he was bound by the terms of his covenants and could not alienate without the consent of his landlord and neither could he change the use of the premises without similiar consent. The relationship between the parties was very bad at the end of 1977. In an effort to enable them to start off on a new footing Mr. Farrell wrote to the landlord's Solicitors indicating several matters in contention and seeking some form of fresh agreement. That letter dated 6th January 1978 was as follows:-

"Dear Sir,

We refer to conversation on Wednesday the 4th Inst., with your Mr. Brian Mahon and suggest the following basis for an agreement between our respective clients to resolve differences which have arisen.

1. To postpone inspection of the property until June 1978 or the completion of any sale of the property whichever is the sooner, in order that it can be carried out in a more congenial atmosphere.

2. To issue receipt for the current rent paid.

3. To pay to the lessee the sum of £400 for the cost of erecting gates and fences, the latter estimated cost between £100 and £150, the amount of £400 being the full liability for the lessors in this regard. This amount to be paid immediately.

4. To confirm that the lessor will have no objection to the proposed assignment of the lessee's interest in the property.

5. To allow the lessee access from the farm lands to clean out and repair the sunk fence or moat.

6. To allow the lessee to make improvements to the avenue leading from the red gate to the premises and for the lessor to contribute the sum of £50 towards this work, it is suggested that the work be carried out in the Spring of this year.

7. To acknowledge that the lessee shall have an option to the exclusive use of the area marked white on the map attached to the lease between the respective properties the lessor's right of way not to be altered in any way.

8. To give every reasonable assistance should the lessee effect the sale of his interest in the lease and to agree to any reasonable request to change the user of property and on such a transfer to agree to a further 25 years" option on the expiry of the existing lease...

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