O'Neill and Others v Harris

• Jurisdiction: Ireland
• Judgment Date: 27 June 1948
• Date: 27 June 1948
• Court: High Court

O'Neill and Others v. Murphy. Same v. Harris.

MOST REVEREND PATRICK O'NEILL and OTHERS

Plaintiffs

and

DOUGLAS ST. J. MURPHY,Defendant. SAME, Plaintiffs, v. HARRIET M. HARRIS

Defendant.

Landlord and tenant - Leasehold premises comprising dwellinghouse - Covenant prohibiting erection of new buildings - Additional rent payable in event of breach of covenant - Penalty or liquidated damages - Proviso for re-entry on breach of covenant - Whether lessee entitled to break covenant on payment of penalty or liquidated damages - Effect on proviso for re-entry - - Proposed erection of college by lessee on demised premises involving demolition of dwellinghouse - Whether an improvement within meaning of the Landlord and Tenant Act, 1931 - Landlord and Tenant Act, 1931 (No. 55 of 1931), ss. 2, 57 and 58.

A lease, the lessee's interest in which was vested in the plaintiffs, contained a covenant by the lessee that he, his executors, administrators and assigns would not, during the term granted, erect any building, temporary or otherwise, additional to the dwellinghouse existing on the premises, without the prior consent in writing of the lessor, his heirs or assigns. The lease provided that, on the breach of that covenant, the lessee would pay to the lessor an additional yearly rent of £10, to be paid during the continuance of the lease on the same gale days as the reserved rent. The lease also provided that in the event of breach of covenant, the lessor could re-enter the demised premises and repossess and retain the same. The defendants refused to consent to the plaintiffs erecting a college upon the demised premises, on the grounds that it would alter the character of the demised premises. The proposed erection of the college might have included alteration or demolition of all or part of the existing dwellinghouse. The plaintiffs instituted proceedings claiming a declaration that they were entitled, without the consent of the lessor, to erect the college on payment of the £10 additional rent, and a declaration that the proposed college would constitute an "improvement"within the meaning of that term as used in the Landlord and Tenant Act, 1931, and a declaration that consent to erect the college had been unreasonably withheld.

Held that, whether the £10 rent was a penalty or liquidated damages, the lessor's right to re-enter for breach of covenant was not abolished.

Held also that to constitute an "improvement" within the meaning of the Landlord and Tenant Act, 1931, the improvement must be an improvement to the existing buildings and not an improvement to the land by the erection of other buildings; and the erection of a building is not an improvement unless it is ancillary or subsidiary to the existing buildings.

Witness Actions.

The plaintiffs were the diocesan trustees of the diocese of Limerick. The plaintiff, the Most Reverend Patrick O'Neill, Bishop of Limerick, purchased the lessees' respective interests in three leasehold premises in the City of Limerick with the ultimate intention of building a diocesan college upon those premises. All three premises were adjoining. The lessors' interests in two of the premises were vested in the defendant Douglas St. J. Murphy. The lease of one of these was dated the 4th day of September, 1840, and made between the Marquis of Lansdowne and Horatio Nelson Seymour and comprised a residence known as Shelbourne House. A gatelodge and the avenue leading to Shelbourne House were comprised in the second lease which was dated the 30th day of December, 1848, and made between the Marquis of Lansdowne and Robert Maunsell Gabbett. The lessor's interest in the third lease was vested in the defendant, Harriet M. Harris, and that lease was dated the 3rd day of May, 1853, and made between the Marquis of Lansdowne and Arthur Russell. These premises also contained a residence.

The following covenant, inter alia, was contained in the lease of 4th September, 1840:—"And the said Horatio Nelson Seymour for himself, his heirs, executors, administrators and assigns doth hereby covenant and agree with and to the said Marquis of Lansdowne, his heirs and assigns (in the manner following that is to say) that he the said Horatio Nelson Seymour, his executors, administrators and assigns shall not and will not during the said term hereby granted erect or suffer to be erected any second dwelling-house or additional building temporary or otherwise upon the said premises hereby demised or any part thereof other than such building as shall be previously approved of by the said Marquis of Lansdowne, his heirs or assigns testified in writing under his or their hand or hands for that purpose and shall not and will not at any time during the said term hereby granted build any boundary or other wall on the said premises hereby demised exceeding 5 feet in the height from the level of the ground save and except the wall of the garden as laid down in the map hereunto annexed and which said garden wall shall not exceed 9 feet in the height or put up any building or other thing whatsoever in front of the said messuage and buildings or upon any part of the premises hereby demised whereby the view or the general appearance of the neighbouring dwellinghouses may be injured or prejudiced, nor make any addition to the said messuages and dwellings intended to be erected as aforesaid either in height or projection without first obtaining such approbation as aforesaid nor will at any time during the said term hereby granted exercise or carry on in or upon the said premises hereby demised or the messuages or dwellings to be erected thereon or any part thereof any of the trades or businesses of Vintner, Distiller, Brewer, Ale House Keeper, Victualler, Coffee House or Tavern Keeper, Tripe Boiler, Tripe Seller, Cheese Monger, Poulterer, Fish Monger, Slaughterman, Butcher, Baker, Pastry Cook, Fruit or Herb Seller, Soap Boiler, Tallow Chandler, Tallow Melter Sugar Maker, Dealer in Old Iron, Blacksmith, Farrier, Working Cobbler, Chimney Sweeper, Bagnio Keeper, Coachmaker, Whitesmith, Coppersmith, Working Brazier, Caricature Print Seller, Working Tin Man, Plumber, Dyer, Brick or Lime Burner, or any other noisome noisy or offensive trade or business whatever without the express consent in writing of the said Marquis of Lansdowne, his heirs or assigns under his or their hand or hands first obtained for that purpose nor will convert or use the said premises hereby demised or the messuage or dwelling to be erected thereon or any part thereof to or for any purposes of trade, business or manufacture nor occupy that said messuage or building and premises or any part thereof otherwise than as a private dwelling without the like approbation of the said Marquis of Lansdowne, his heirs or assigns for that purpose in writing first obtained as aforesaid, nor will do or permit to be done in or upon the said premises hereby demised or the messuage and buildings to be erected and built thereon as aforesaid or any part thereof respectively any waste spoil or destruction or any act or thing whatsoever which shall be or become a nuisance, annoyance or disturbance to the owners or occupiers of any of the contiguous premises and that on breach of this covenant or any part thereof he the said Horatio Nelson Seymour, his executors, administrators and assigns shall yield and pay unto the said Marquis of Lansdowne, his heirs or assigns an additional yearly rent of ten pounds sterling, the same to be payable during the continuance of this demise on the same gale days and times and recoverable in like manner by distress or otherwise as the said first reserved yearly rent is payable and recoverable."

The same lease also contained the following proviso:—

"Provided always that these presents are upon this express condition that if the several rents or sums hereby respectively reserved and made payable or any of them or any part thereof respectively shall be unpaid for twenty-one days next after either of the days of payment on which the same ought to be paid as aforesaid or if the said Horatio Nelson Seymour, his executors, administrators or assigns shall not in all things perform and keep all the covenants and agreements hereinbefore contained on his and their part and behalf to be performed and kept according to the true meaning of these presents then and from thenceforth and in any of such cases it shall be lawful for the said Marquis of Lansdowne, his heirs or assigns into and upon the said premises hereby demised and the messuages and buildings erected or to be erected thereon or any part thereof in the name of the whole to re-enter and the same to have again repossess, retain and enjoy as in his or their former estate."

The lease of 3rd May, 1853, contained a covenant and proviso in identical terms while the lease of the 30th December, 1848, contained a covenant and proviso which were not essentially different. The defendants refused to consent to the erection of the proposed diocesan college on their respective premises and the plaintiffs thereupon instituted proceedings which led to these actions.

The further facts of these cases are, for the...