Metropolitan Properties Ltd v Commissioners of Public Works

• Jurisdiction: Ireland
• Judge: Hamilton C.J.,Egan J.,O'Flaherty J.
• Judgment Date: 03 April 1995
• Neutral Citation: 1995 WJSC-SC 1163
• Docket Number: [S.C. No. 309 of 1991]
• Court: Supreme Court
• Date: 03 April 1995

1995 WJSC-SC 1163

THE SUPREME COURT

HAMILTON C.J.

O'FLAHERTY J.

EGAN J.

309/91

METROPOLITAN PROPERTIES LTD v. O'BRIEN

IN THE MATTER OF THE LANDLORD AND TENANT ACTS

1967TO 1983

BETWEEN:

METROPOLITAN PROPERTIES LIMITED

Applicant

and

JOHN O'BRIEN AND THE COMMISSIONERS OF PUBLIC WORKS INIRELAND

Respondents

Citations:

LANDLORD & TENANT (GROUND RENTS) (NO 2) ACT 1978 S4

LANDLORD & TENANT (GROUND RENTS) (NO 2) ACT 1978 PART II S8

COURTS OF JUSTICE ACT 1936 S38(3)

INTERPRETATION ACT 1937 SCHED CLAUSE 14

SMITHS (HARCOURT ST) LTD V HARDWICKE LTD UNREP 30.7.71

LYALL LAND LAW IN IRELAND (1994) 36

LANDLORD & TENANT (GROUND RENTS) (NO 2) ACT 1978 S9(1)(a)

LANDLORD & TENANT (GROUND RENTS) (NO 2) ACT 1978 PART II

LANDLORD & TENANT (GROUND RENTS) (NO 2) ACT 1978 S9

LANDLORD & TENANT (GROUND RENTS) (NO 2) ACT 1978 S10

LANDLORD & TENANT (GROUND RENTS) (NO 2) ACT 1978 S28

LANDLORD & TENANT ACT 1931

LANDLORD & TENANT (GROUND RENTS) ACT 1967

BANK OF IRELAND V PURCELL 1989 IR 327

WYLIE, CONVEYANCING LAW 1ED FORWARD (KENNY J)

Synopsis:

LANDLORD AND TENANT

Lease

Sub-lease - Enfranchisement - Sub-lessee - Rights - Fee simple - Purchase - Statute - Terms - Interpretation - Statute inapplicable where fee-simple estate is vested in privileged bodies - (309/91 - Supreme Court - 3/4/95) [1995] 1 I.R. 467 [1995] 2 ILRM 383

|Metropolitan Properties Ltd. v. O'Brien|

WORDS AND PHRASES

"Acquire by purchase"

Leasehold - Enfranchisement - Sub-lessee - Rights - Exclusion - Fee simple - Purchase - Statute - Terms - Interpretation - Statute inapplicable where fee-simple estate is vested in privileged bodies - (309/91 - Supreme Court - 3/4/95) - [1995] 1 I.R. 467

|Metropolitan Properties Ltd. v. O'Brien|

STATUTORY INTERPRETATION

Enactment

Purpose - Leasehold - Enfranchisement - Method - Fee simple - Purchase - Right of sub-lessee dependent on corresponding duty of owner of fee-simple estate - Particular owner of fee-simple estate not bound by terms of statute - (309/91 - Supreme Court - 3/4/95) - [1995] 1 I.R. 467 - [1995] 2 ILRM 383

|Metropolitan Properties Ltd. v. O'Brien|

REAL PROPERTY

Leasehold

Enfranchisement - Sub-lessee - Rights - Exclusion - Fee simple - Purchase - Statute - Terms - Interpretation - Statute inapplicable where fee-simple estate is vested in privileged bodies - Landlord and Tenant (Ground Rents) (No. 2) Act, 1978, ss. 4, 8 - (309/91 - Supreme Court - 3/4/95) [1995] 1 I.R. 467 [1995] 2 ILRM 383

|Metropolitan Properties Ltd. v. O'Brien|

1 Judgment delivered the 3rd day of April 1995by Hamilton C.J.

2 I agree with the judgment delivered by Mr. Justice O'Flaherty in so far as it deals with the question whether the Applicant is entitled as against the first named Defendant to enlarge the interest vested in it under and by virtue of the 1948 under-lease in Parsons Bookshop into a fee simple notwithstanding

3 (a) that the fee simple interest in the said premises is vested in the Commissioners of Public Works inIreland who are not bound by the provisions of the Landlord and Tenant (Ground Rents) No. 2 Act, 1978.

4 I agree that the Applicants are not entitled to acquire the interest of the first named Respondent in the Indenture of Lease dated the 6th day of April 1948 and made between Mary Margaret Parsons of the one part and Edward Byrne of the other part.

5 The Applicants would only have been entitled to acquire such interest if they were entitled to enlarge such interest into a fee simpleinterest.

6 As the fee simple interest in the premises is vested in the Commissioners of Public Works in Ireland, who are not bound by the provisions of the said Act, the Applicants are not entitled and could not become entitled to acquire the fee simple interest in the premises, they are not entitled to acquire the interest in the premises of the first-named Respondent.

7 Consequently, the answer to both questions raised in the case stated should be in the negative.

8 Being of such a view, I do not consider it necessary to deal with that portion of Question (1) set forth at (b) thereof and defer consideration of that issue to a more appropriate case.

9 jud19

10 Judgement of Egan J.delivered the 3rd day of April 1995.

11 The parties are agreed that the applicants are not entitled to the enlargement of their interest into a fee simple interest as against the Commissioners of Public works having regard to the provisions of Section 4 of the Landlord and Tenant (Ground Rents) No. 2 Act 1978. Section 8 of part II of the Act provides:-

"A person to whom this Part applies shall, subject to theprovisions of this Part, have the right as incident to his existing interest in land to enlarge that interest into a fee simple, and for that purpose to acquire by purchase the fee simple in the land and any intermediate interest in it and the Act of 1967 shall applyaccordingly".

12 The section makes it clear that the right to purchase an intermediate interest only exists for the purpose of enlarging the present interest into a fee simple interest. Where the latter cannot be done (as is the position in the present case) there is no right to purchase the intermediate interest.

13 The foregoing conclusion is sufficient to determine the rights of the parties to this suit. An additional objection was made, however, to the effect that the section only gave a right as incident to an existing interest in "land" and would not embrace property which was not physically situate on the ground.

14 This raises a matter of great importance but because it isnot necessary for the purposes of this case to resolve it, I will not attempt to do so and will, therefore, leave the questionunanswered.

15 JE105

16 Judgment delivered the 3rd day of April, 1995by O'Flaherty J.

17 This is a case stated pursuant to the provisions of section 38(3) of the Courts of Justice Act, 1936for the determination by the Court of certain questions which arose on the hearing in the High Court, before Murphy J., of the appealherein.

18 Since the facts of the matter, the legal issues arising and, indeed, the submissions made are set out so comprehensively in the case stated, I propose to reproduce it in full.

19 The case stated was as follows:

20 (1) This matter came before me on the 26th November, 1990, by way of appeal from an order of the Circuit Court made on the 22nd day of February 1990 on an application by way of appeal from an award of the County Registrar dated the 24th day of October 1989 for an order or award (but not so as to bind or purport to bind the secondly named respondents) declaring that the applicant was entitled pursuant to the provisions of Part II of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978to enlarge into a fee simple its interest in ALL THAT AND THOSE that part of the premises known as Bridge House, Upper Baggot Street in the City of Dublin consisting of the shop on the ground floorand the store on the right hand side of the passage leading from the said shop to the yard at the rear of the said premises and the lavatory and lock-up in the yard of the said premises and with the right of ingress egress and regress in common with the first named respondent and the occupiers of the remainder of the said premises by and through the passage leading from the said shop to the said yard and also over said yard to Mespil Road, which said premises are situate in the Parish of St. Peter and the City of Dublin. For convenience the premises in respect of which the statutory right is claimed are hereinafter described as "Parsons Bookshop".

21 (2) The following facts were established or admitted:-

22 (a) By an Indenture of Lease dated the 29th day of June 1916 made between the Grand Canal Company of the one part and Benjamin R. Parsons of the other part the Grand CanalCompany demised to the said Benjamin R. Parsons "ALL THAT AND THOSE that plot of ground adjacent to Baggot Street Bridge on the southside of the Grand Canal measuring in front to Mespil Road and Upper Baggot Street three hundred and thirty feet six inches in the rear to the Grand Canal three hundred feet in depth from front to rear at the Western end and thirty five feet in depth near the Eastern end thirty nine feet be the said admeasurements or any of them more or less bounded on the North by the Grand Canal on the South by Mespil Road on the East by Upper Baggot Street and on the West by other premises in the possession of the lessors to HOLD the said demised premises unto the said Benjamin R. Parsons from the 1st of January 1916 for the term of 999 years subject to the yearly rent of £35 andsubject to the covenants on the part of the lessee therein contained and in particular the covenant that the lessee would "within one year to be computed from the 1st day of January 1916 expend the sum of at least £1,000 sterling in building and erecting and making fit for habitation and completing in a good and workman like manner with good and sound materials upon the premises hereby demised a good and substantial dwellinghouse or business premises in accordance with plans to be first submitted and approved by the lessor's engineer and on the site and with a line of frontage thereon marked".

23 (b) The interest of the Grand Canal Company in fee simple expectant on the determination of the 1916 lease became and is now vested in the secondly named respondents theCommissioners of Public Works in Ireland.

24 (c) In pursuance of the covenant aforesaid the substantial three storey red bricked building sometimes known as Bridge House was duly erected in the year 1916.

25 (d) Bridge House aforesaid is displayed in a photograph annexed to the Report of Messrs Hamilton Osborne and King which was admitted in evidence by agreement between the parties.

26 (e) By an Indenture of lease dated the 6th day of April 1948 made between Mary Margaret Parsons of the one part and Edward Byrne of the other part (hereinafter referred to as...