Mealiffe v G.N. Walsh Ltd

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 01 January 1987
• Neutral Citation: 1986 WJSC-HC 1297
• Docket Number: [1986 No. E 54],E54/86
• Court: High Court
• Date: 01 January 1987

1986 WJSC-HC 1297

HIGH COURT ON CIRCUIT

EASTERN CIRCUIT

COUNTY OF OFFALY

E54/86

MEALIFFE v. G N WALSH LTD & G I WALSH

BETWEEN:

PEGGY MEALIFFE

Applicant

AND

G. N. WALSH LIMITED AND GEORGE I. WALSH

Respondents

Citations:

LANDLORD & TENANT (AMDT) ACT 1931 PART III

LANDLORD & TENANT (AMDT) ACT 1931 S19

LANDLORD & TENANT (AMDT) ACT 1931 S21

LANDLORD & TENANT (AMDT) ACT 1931 S24

LANDLORD & TENANT (AMDT) ACT 1931 S25

LANDLORD & TENANT (AMDT) ACT 1931 S29(d)

LANDLORD & TENANT (AMDT) ACT 1931 S29(e)

LANDLORD & TENANT (AMDT) ACT 1980 PART II

LANDLORD & TENANT (AMDT) ACT 1980 S13(1)(a)

LANDLORD & TENANT (AMDT) ACT 1980 S16

LANDLORD & TENANT (AMDT) ACT 1980 S17(1)

LANDLORD & TENANT (AMDT) ACT 1980 S17(2)

LANDLORD & TENANT (AMDT) ACT 1980 S18

LANDLORD & TENANT (AMDT) ACT 1980 S18(2)

LANDLORD & TENANT (AMDT) ACT 1980 S19(2)(a)

LANDLORD & TENANT (AMDT) ACT 1980 S20

LANDLORD & TENANT (AMDT) ACT 1980 S20(1)

LANDLORD & TENANT (AMDT) ACT 1980 S20(2)(c)

LANDLORD & TENANT (AMDT) ACT 1980 S21

LANDLORD & TENANT (AMDT) ACT 1980 S21(3)

LANDLORD & TENANT (AMDT) ACT 1980 S23(3)

LANDLORD & TENANT (AMDT) ACT 1980 S23(4)

LANDLORD & TENANT (AMDT) ACT 1980 S23(5)

LANDLORD & TENANT (AMDT) ACT 1980 S5

Synopsis:

LANDLORD AND TENANT

New tenancy

Tenant's application - Conditions precedent - Service of notice of intention to claim relief - Applicant being tenant under subsisting monthly tenancy of tenement - Respondent landlord had neither terminated nor sought to terminate the monthly tenancy - ~Quia timet~ application by tenant to court for order fixing terms of new tenancy - Section 21(1) of Act of 1980 states that a person who has served a notice of intention to claim relief under the Act may apply to the court to determine his right to relief and the terms of his new tenancy - Sub-section 3 of s.21 states that an application under that section may be made "either before and in anticipation of" or after the termination of the applicant's tenancy - Section 16 of the Act of 1960 states that, subject to the provisions of the Act and where Part 2 of the Act applies to a tenement, the tenant shall be entitled to a new tenancy in the tenement "beginning on the termination of his previous tenancy" - Held that, while the applicant's notice of intention to claim relief had been duly served in accordance with s.20(2)(c) of the Act, the court had no power to determine the application in the absence of the termination, or of an anticipated termination, of the applicant's tenancy - Landlord and Tenant (Amendment) Act, 1980, ss.13, 16, 20, 21 - (E54/86 - Carroll J. - 28/11/86) - [1986] IR 427 - [1987] ILRM 301

|Mealiffe v. G.N. Walsh Ltd.|

1 Judgment of Miss Justice Carroll delivered on the 28th day of November 1986

2 This case concerns a net legal point whether a tenant who holds on a periodic letting is entitled to a new tenancy under Part II of the Landlord and Tenant (Amendment) Act 1980(the 1980 Act) even though the tenancy has not been determined.

3 The entitlement is expressed in Section 16 as follows:-

"Subject to the provisions of this Act, where this Part applies to a tenement, the tenant shall be entitled to a new tenancy in the tenement beginning on the termination of his previous tenancy, and the new tenancy shall be on such terms as may be agreed upon between the tenant and the person or persons granting or joining in the grant of the new tenancy or, in default of agreement, as shall be fixed by the Court."

4 The premises are a tenement as defined by Section 5 of the 1980 Act held by the Applicant on a monthly tenancy arising on the expiration of a term granted by agreement in writing made in 1981 between the second named Respondent as Landlord and the Applicant as tenant. Under that agreement the Applicant was granted a term of years from the 1st of August 1981 to the 1st of July 1984 at the rent of £35 per week in the premises described as "Cleo's" Hairdressing Salon situate at O'Connor Square, Tullamore, Co. Offaly, consisting of one room on the first floor of the landlord's premises together with shared use of toilet and hall including furniture, fittings and effects specified in the Third Schedule. Since this was a preliminary legal issue, no evidence was taken but I was informed by Counsel for the Applicant that the reason for the application is that the premises may be sold and that a new purchaser may be able under Section 17 (2) of the 1980 Act to resist an application for a new tenancy.

5 The Applicant claims to be entitled to a new tenancy under Part II of the 1980 Act which the Applicant says applies to her premises by virtue of Section 13 (1) (a) which provides as follows:-

"(1) This part applies to a tenament at any time if -"

(a) the tenement was, during the whole of the period of three years ending at that time, continuously in the occupation of the person who was the tenant immediately before that time or of his predecessors in title and bona fide used wholly or partly for the purpose of carrying on a business."

6 This is commonly referred to as a business equity.

7 This Section must be constrasted with Section 19, the corresponding section in the Landlord and Tenant Act 1931(the 1931 Act)

"(1) On the termination within the meaning of this section of a tenancy in a tenement, this Part of this Act shall apply to such tenement if such tenement complies with any one of the following conditions, that is to say:-"

(a) such tenement was, during the whole of the three years next proceeding the termination of such tenancy, bona fide used by the tenant for the time being thereof wholly or partly for the purpose of carrying on a business and, immediately before such termination, either was held by the tenant thereof under a tenancy from year to year or under a lease or other contract of tenancy for a term of not less than one year or a lease for a life or lives or had been for not less than seven years continuously in the occupation of the person who was the tenant thereof immediately before such termination or of his predecessors in title."

8 Termination of a tenancy as a point of time within the meaning of that Section was to be construed as referring, in the case of a tenancy terminated by notice to quit, to the elate of the service of such notice to quit (see Section 19 (2) (a)).

9 It is clear there is a difference between the position under the 1931 Act and the 1980 Act. Prior to the 1980 Act, the question whether Part 3 applied (which contains the provisions relating to entitlement to a new tenancy) depended on whether, in the case of a business equity, the conditions set out in Section 19 (1) (a) existed at the date of the service of the notice to quit. Under the 1980 Act the application of...