Prime GP2 Ltd v Technological University Dublin
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 09 February 2021 |
| Neutral Citation | [2021] IEHC 88 |
| Court | High Court |
| Docket Number | RECORD NUMBER: 2020 204 CA |
| Date | 09 February 2021 |
[2021] IEHC 88
Niamh Hyland
RECORD NUMBER: 2020 204 CA
THE HIGH COURT
This is an application by the plaintiff (Technological University Dublin “TUD”) brought under the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 (the “1978 Act”) to acquire the fee simple interest in two contiguous plots of land. That fee simple interest was formerly held by Atlas Limited Partnership (acting by its general partner Atlas GP Limited) (“Atlas”) and is now held by Prime GP2 Limited (“Prime”). Prime were substituted for Atlas in these proceedings by Order of the Circuit Court of 22 September 2020.
TUD holds the leasehold interest in the first plot (plot A) under a lease made on 13 October 1952 between Stanley A. Siev of the one part and Peter J. Cunningham of the other part, for a term of 150 years, and an annual rent of IEP60.00 (the “1952 lease”). TUD holds the leasehold interest in the second plot (plot C) under a lease made on 3 May 1978 (the “1978 lease”) between Stanley A. Siev of the one part and Irish Life Assurance Limited of the other part, the term being coterminous with the 1952 Lease, and with no additional rent being payable.
The two plots form part of TUD's Kevin Street campus in Dublin 8, formerly occupied by TUD.
The 1978 Act gives a right to acquire the fee simple and identifies conditions that must be met by a person holding land under lease seeking to acquire the fee simple in same, as follows:
8.— A person to whom this Part applies shall, subject to the provisions 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 interests in it and the Act of 1967 shall apply accordingly.
9.—(1) This Part applies to a person who holds land under a lease, if the following conditions are complied with:
(a) that there are permanent buildings on the land and that the portion of the land not covered by those buildings is subsidiary and ancillary to them;
(b) that the permanent buildings are not an improvement within the meaning of subsection (2);
(c) that the permanent buildings were not erected in contravention of a covenant in the lease; and
(d) one of the alternative conditions set out in section 10.
…
10.— The following are alternative conditions one of which must also be complied with in a case to which section 9 relates:
1. that the permanent buildings were erected by the person who at the time of their erection was entitled to the lessee's interest under the lease or were erected in pursuance of an agreement for the grant of the lease upon the erection of the permanent buildings;
…
TUD served a notice of intention to acquire the fee simple pursuant to the 1978 Act on 29 April 2019 in respect of plot A and plot C on both Atlas and the Estate of Stanley Siev, deceased, as it was not then known if Atlas had acquired the Lessor's interest. No response was received from Atlas. Accordingly, a notice of application to acquire the fee simple of 16 August 2019 was served on Atlas (after it had become clear that Atlas had acquired the interest).
The matter came on for hearing before the County Registrar on 20 January 2020 and on 11 March 2020 the County Registrar held that TUD were entitled to acquire the fee simple in respect of the two plots for €8,150.
This decision was appealed to the Circuit Court by way of Notice of Motion dated 20 March 2020 by Atlas. In September 2020 the matter was listed before the Circuit Court on three occasions for directions and on 22 September 2020 the matter ultimately came on for hearing before Judge Linnane and was heard over the course of a day.
On 12 November 2020 Judge Linnane gave her decision, dismissing the appeal of Prime (who had by then been substituted for Atlas). That decision was appealed to this court.
The matter came on for hearing on 26 January 2021. An application for discovery was made on the first day of the hearing by way of notice of motion dated 25 January 2021. I heard and determined the application, refusing discovery on the grounds that it was neither relevant nor necessary, and that there had been a failure to furnish reasons as to why the category should be discovered.
TUD served a notice of application to acquire the fee simple of 16 August 2019 grounded upon the affidavit of Denis Murphy sworn the same day. In that notice, TUD sought an order awarding the fee simple and any intermediate interests in the premises described in the first schedule, held under the lease and supplemental lease described in the second schedule, together with any intermediate interests, to TUD.
The first schedule identifies the property comprised in land registry folio 145094L. The second schedule refers to the lease and supplemental lease, the lease being that of October 1952 and the supplemental lease being that of 3 May 1978.
In Mr Murphy's affidavit, he refers to the premises identified in the first schedule to the notice of application and to the leases in the second schedule. He describes the terms of the 1978 supplemental lease, including the provision to the effect that the 1952 lease shall be read and construed as if the additional premises had been originally included in same. He avers that the intent and effect of the 1978 supplemental lease is simply to extend the portion of ground demised by the 1952 lease.
At paragraph 8 he avers that the 1952 lease as amended by the 1978 supplemental lease complies with the requirements made out in s. 9 of the 1978 Act in that there is a permanent building erected on the land and a portion of land not covered by that building is subsidiary and ancillary thereto, the permanent buildings are not an improvement within the meaning of subsection 9(2) or erected in contravention of a covenant in the lease, and there is compliance with condition 10 (1).
A valuation report prepared by Duff & Phelps of 26 April 2019 is exhibited by Mr. Murphy.
In response, three affidavits were filed by Atlas, one by a Mr. Barrett, engineer, one by a Mr. Sweetman, expert conveyancer, and the last by Mr. Crean of Atlas.
Mr. Barrett of Barrett O'Mahony, consulting engineers, swore his affidavit on 17 January 2020, and exhibited a copy of a report he had carried out, outlining the physical condition and layout of the property. His report identifies the land demised under the 1952 lease as plot A and that demised under the 1978 lease as plot C. A map is attached to the report which identifies plot A and plot C. The majority of the land in plot A is covered by a building save for a small area to the north and a small strip to the south. The map identifying plot C does not show buildings on same. I address the evidence in respect of plot A further below.
In relation to what is described as the 1978 lease, the report notes that “ this lease covers the plot of land behind the College court development which houses the Boojum Burrito restaurant. The plot is used for fire escape access from the annex building only and there is no access to it from the restaurant or the College court development”.
The affidavit of Mr Sweetman is sworn 20 January 2020 and exhibits his opinion, in which he identifies his qualifications as an expert conveyancer, including the fact that he was the head of the commercial property department in Matheson solicitors and has been a member of the Conveyancing Committee of the Law Society of Ireland since 1995 and served as chairman until recently. He states that he has been asked to review the lease and supplemental lease and to give his opinion from a conveyancing point of view as to the relationship between them. I deal with the conclusions of Mr. Sweetman below in the context of (a) the discussion on how plot A and plot C are held and (b) the question of surrender and re-grant.
Mr. Crean swore an affidavit on 21 January 2020 summarising the history of the interaction between the parties in respect of the application to acquire the fee simple. I deal with certain of its contents below in the context of the admissibility of the subsidiary/ancillary argument.
Prior to the substantive Circuit Court hearing, three further reports were filed – two by Paul Kelly, architect, on behalf of TUD, of 17 and 20 September 2020 and one by Barrett Mahony of 17 September 2020. Although not placed on affidavit, it was agreed by the parties at the hearing that I could treat same as evidence. Those reports are considered in more detail below in the context of my consideration of whether there are permanent buildings on the land demised by the 1978 lease, plot C.
The 1978 lease contains the following clauses which I set out in full given the reliance placed on Clause 2 by TUD and that placed on Clause 1 by Prime:
NOW THIS INDENTURE WITNESSTH AS FOLLOWS:
1. The Lessor hereby demises unto the Lessee ALL THAT the plot or piece of ground situate in Church Lane off Lower Kevin Street in the Parish of Saint Peter in the City of Dublin which said plot or piece of ground is now known as “the additional premises” and which adjoins the existing premises on the North side and is more particularly delineated and described on the map or plan annexed hereto and thereon edge in red TO HOLD the same unto the Lessee from the date hereof for the residue of the term now unexpired created by the Lease subject to the rent reserved by the Lease and to the covenants by the Lessee and conditions contained in the Lease.
2. The Lessor and the...
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Prime GP2 Ltd v Technological University Dublin
...Technological University Dublin (TUD), submitted that it was largely successful in the appeal before the High Court ([2021] IEHC 88) and that it ought to be entitled to the costs of the appeal, as the defendant/appellant, Prime GP2 Ltd (Prime), was unsuccessful in all but one of the grounds......