Midleton v Wallis

• Jurisdiction: Ireland
• Judge: Appeal.
• Judgment Date: 06 November 1913
• Year: 1914
• Court: King's Bench Division (Ireland)
• Date: 1914

Midleton (Viscount), Landlord;

Wallis, Tenant (1)

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1914.

Land Law Acts — Present tenancy — Pastoral holding — Lands within an urban area — Covenant to build — Not enforced for many years — Right to have fair rent fixed.

Held, that as the lands were in fact pastoral, and had always been used as such, the existence of a covenant to build, not acted on for over seventy years, did not prevent the tenancy from being a pastoral holding in respect of which a fair rent could be fixed.

Held, by Cherry, L.J., that the covenant must be presumed to have been waived by the acts of the parties, and that on this ground the tenant was entitled to succeed in a fair-rent application.

Appeal on behalf of the landlord from an order of the Irish Land Commission declaring the lessee tenant of a present tenancy, and fixing a fair rent.

The lands in question were held under a lease dated the 11th day of April, 1836, for an unexpired term of three lives and twenty-one years after the death of the survivor, made between the Right Honourable George, Lord Viscount Midleton, of the one part, and the Reverend Doctor William Greene, clerk, of the other part. The lease contained the following covenant:— “That the said William Greene, his heirs, executors, administrators, or assigns shall erect or cause to be erected on these demised premises good and respectable dwelling-houses of three stories in height, and of the same description and in conformity with the houses already built by Mr. Mathias Callaghan on the holding which immediately adjoins these demised premises.” There was also a covenant on the part of the lessee to pave and keep paved the full length or front of the demised premises to the breadth of nine feet at the least towards the street fronting the same.

The lands, which contained 4 acres, 11 perches, were situate within the urban area of the town of Midleton, in the county of Cork, and formed portion of a street called Broderick Street. It was admitted in argument, on behalf of the tenant, that the lease was made to the tenant for building purposes, and that if the holding were to be judged by reference to the lease alone, it could not be regarded as agricultural or pastoral. The lands had in fact been used for purely pastoral purposes, in conjunction with a larger adjoining holding, and nothing had been done under the covenant to build. The landlord and his agent were all along aware that the building covenant had not been carried out, and also that the lands were used for pasturage.

The tenant, on the 31st day of March, 1911, served an originating notice of an application for an order fixing a fair rent, and on the 15th day of July, 1911, the Sub-Commission made an order declaring that the lessee should be deemed a present tenant of the holding pursuant to the Land Law (Ireland) Act, 1887, and fixing a fair rent of £5 16s. The landlord appealed from this order to the Land Commission upon the following grounds:—(1) That the holding is not substantially either agricultural or pastoral in its character, or partly agricultural and partly pastoral; (2) that the main object of the letting of the holding was for a residence; (3) that the holding consists of a plot of land within the town and urban district of Midleton, let and taken for building purposes, and not for any agricultural or pastoral purpose; (4) that the holding is not a holding to which the Land Law (Ireland) Acts apply. In the alternative—(1) that the holding has a special value for building purposes; (2) that the rent fixed thereon by the Sub-Commission is too low, and ought to be increased.

On the 15th day of May, 1913, judgment of the Land Commission Court was delivered affirming the declaration of the Sub-Commission that the holding should be deemed a present tenancy, but increasing the fair rent to £6 16s. Mr. Justice FitzGerald, in delivering judgment, said he was of...