Oliver O'Connor v Catherine O'Connor and Others

• Jurisdiction: Ireland
• Judgment Date: 22 November 1915
• Date: 22 November 1915
• Court: King's Bench Division (Ireland)

Oliver O'Connor

and

Catherine O'Connor and Others (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1916.

Landlord and Tenant — Agreement fixing Fair Rent filed with Land Commission — Non-agricultural Holding — Estoppel — Expiration of Statutory Term — Notice to Quit — Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), s. 8, sub-s. 6 — Land Law (Ireland) Act, 1896 (59 & 60 Vict. c.47), s. 3, sub-sec. 1.

In the year 1884 an agreement and declaration fixing a fair rent, made between the landlord and tenant of a holding, was filed in the Irish Land Commission Court pursuant to s. 8 of the Land Law (Ireland) Act, 1881. At the time of the filing of the agreement the holding was not agricultural or pastoral, or partly agricultural and partly pastoral, within the meaning of the Act. There had been no further fixing of a fair rent. A successor in title of the landlord brought an ejectment founded on notice to quit to recover possession of the holding.

Held that the agreement and declaration precluded the landlord and his successors in title from objecting that the holding was not at the time agricultural or pastoral, or partly agricultural and partly pastoral; and that, although the statutory term had expired, the tenant was protected by s. 3 of the Land Law (Ireland) Act, 1896, from having the tenancy determined by notice to quit.

Case Stated for the opinion of the King's Bench Division by Boyd J. on the hearing of a civil-bill appeal.

The case set out as follows:—

“The plaintiff claimed by an ejectment founded on a notice to quit to recover possession of part of the lands of Rathnagussane, containing 2a. 2r. 14p., held by the defendant Catherine O'Connor as yearly tenant. The notice to quit was admitted to be sufficient to determine the tenancy, if by law determinable. The tenancy was an old one, in existence long before 1881. The holding consisted of lands in the village of Kilmovee, and on it were three inhabited cottages occupied by undertenants of Catherine O'Connor, named in the ejectment, and a bootmakers

shop occupied by another undertenant, and a publichouse held by Maria O'Connor, who claimed same as a freehold as against Catherine O'Connor. No evidence was given in support of any such claim. There were ruins of two other cottages, inhabited in 1883, and of a mill on the holding. All said cottages but one had gardens attached. In 1883 Mrs. L. M. Gibbon was the landlady, and Catherine O'Connor was tenant of the holding at a yearly rent of £4, and on the 18th day of December, 1883, an agreement and declaration fixing a fair rent on the holding of Catherine O'Connor of £3 4s. was signed by said L. M. Gibbon and said Catherine O'Connor, purporting to be pursuant to sect. 8 of the Land Law (Ireland) Act, 1881, and duly filed in the Irish Land Commission on the 21st day of March, 1884. A certified copy of the agreement and declaration (County Mayo No. 3047) is to be deemed incorporated herewith, the land being therein described as Rathnagissane. I find, as a fact, so far as the said agreement leaves it open to me to do so, that at the time of the filing of the said agreement the said holding was not agricultural or pastoral, or partly agricultural or pastoral, within the meaning of the Land Law (Ireland) Act, 1881.

The Congested Districts Board recently acquired the estate of said L. M. Gibbon, and, in consideration of a cash payment by plaintiff, sold to him the lands comprised in the tenancy of Catherine O'Connor, to whom he thus became landlord. The plaintiff was registered pursuant to the Local Registration of Title (Ireland) Act, 1891, as owner of the lands, and the conveyance to him and certified copy of the folio and map under said Act are to be deemed incorporated herewith. There has been no further fixing of a fair rent than that by the filing of the agreement and declaration of the 18th December, 1883. The defendant Catherine O'Connor, who is the mother of the plaintiff, did not defend the ejectment, and notice was served on the defendants, other than Maria O'Connor, that it was not proposed to disturb their tenancies, and they did not defend. An original or copy of such notice is to be deemed incorporated herewith. Maria O'Connor entered a defence, and the county court judge dismissed the ejectment. Maria O'Connor relied on the statutory rights arising under the Land Law (Ireland) Acts, and the Local Registration of Title Act, from the said agreement and declaration, as a defence to the ejectment. The plaintiff contended that the holding was not agricultural or pastoral or one on which a fair rent could have been fixed, and that even if it could, the statutory term had expired, and that under his title above set out he was entitled to recover possession of the holding. It was agreed by both parties that I should state this case for the opinion of the King's Bench Division. The question for the Court being, whether the plaintiff is entitled to a decree for possession; if he is, the dismiss is to be reversed and a decree granted with costs and £2 witnesses' expenses; if not, the decree is to be affirmed with costs and £2 witnesses' expenses. The Court shall be at liberty to draw all inferences of fact.”

Price (with him Arthur Meredith K.C.) for the plaintiff:—

Sect. 8 (sub-s. 6) of the Land Law Ireland Act, 1881, is the section giving power to a landlord and tenant to fix a rent by agreement. An agreement under that section could only be made with reference to a holding to which the Land Acts applied. “Such” agreement when filed operates to create a statutory term and restrain the common law right to serve a notice to quit. In the present case the holding was not in fact a holding to which the Acts applied. No consent could make it a holding to which the Acts applied, and the agreement, therefore, does not come within sect. 8, sub-s. 6.

In Ex parte Johnston (1) it was decided that the Land Commission had jurisdiction to decide in point of fact whether or not a holding came within their jurisdiction, and that their finding could not be questioned; but that was under sect. 37, giving the Land Commission such power in case of dispute between landlord and tenant. No such power exists where there is no dispute. The holding must be in fact within the jurisdiction for sect. 8, sub-s. 6, to have anything to operate upon.

Assuming that the agreement fixing a fair rent operated to create a statutory term, the statutory term has now expired. The restraint upon serving a notice to quit imposed by section 5 of the Land Law Act, 1881, only lasted during a statutory term.

Sect, 3 of the Land Act of 1896 continued the tenancy after the expiration of the statutory term, subject to the same conditions. The restriction on serving a notice to quit was not a condition of the tenancy. If it were a condition of the tenancy, the restriction was limited to the duration of the statutory term which has now expired.

Fitzgerald Kenny and Fetherstonhaugh K.C., for the defendant Maria O'Connor:—

The agreement fixing a fair rent, duly...