Re Drew, a Bankrupt

• Jurisdiction: Ireland
• Judgment Date: 21 June 1929
• Date: 21 June 1929
• Court: High Court (Irish Free State)

In re Drew

In re DREW, A Bankrupt

Landlord and tenant - Recovery of possession - Lease of licensed house and other premises - Proviso for re-entry on bankruptcy of lessee - Bankruptcy of lessee - Forfeiture - Conveyancing and Law of Property Act,1881 (44 & 45 Vict. c. 41), sect. 14, sub-sects. 1 and 6 - Conveyancing and Law of Property Act, 1892 (55 & 56 Vict. c. 13), sect. 2, sub-sects. 2and 3 - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), sects. 4 and 6.

Sect. 14, sub-sect. 1, of the Conveyancing Act, 1881, imposes certain restrictions on the enforcement of a right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease, but sub-sect. 6 provides that the section does not extend (inter alia) to a condition for forfeiture on the bankruptcy of the lessee.

Sect. 2, sub-sect. 2, of the Conveyancing Act, 1892, provides that sub-sect. 6 of sect. 14 of the Conveyancing Act, 1881, is to apply to a condition for forfeiture on bankruptcy of the lessee only after the expiration of one year from the date of the bankruptcy, and provided the lessee's interest be not sold within such one year, but in case the lessee's interest be sold within such one year, sub-sect. 6 shall cease to be applicable thereto. Sub-sect. 3 (c) of this section provides that sub-sect. 2 is not to apply to any lease of "a house used or intended to be used as a public-house or a beershop."

Held that a lease of a licensed house and premises, with the out-offices, yard, and garden, and two small dwelling-houses at the rere, was a lease within the meaning of sect. 2, sub-sect 3 (c), of the Conveyancing Act, 1892, as the inclusion of the two small dwelling-houses in the lease did not exclude it from the sub-section.

Accordingly, as the lease of the above-mentioned premises contained a proviso that, on the bankruptcy of the lessee, it should be lawful for the lessor to re-enter upon the premises, and that thereupon the tenancy should absolutely cease, and as the lessee had been adjudicated a bankrupt, the Court granted the application of the lessor for the recovery of possession of the premises, made within a year of the bankruptcy of the lessee, as, since sub-sect. 3 (c) of sect. 2 of the Conveyancing Act, 1892, applied, sub-sect. 2 of that section did not apply to the lease; and accordingly the restrictions imposed by sub-sect. 1 of sect. 14 of the Conveyancing Act, 1881, did not apply to the lessor's right of re-entry.

The term of years for which the lease was granted expired in 1924, but the lessee continued to remain in possession.

Held that the lessee was not entitled to the protection of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, as he had broken one of the conditions of his tenancy by allowing himself to be adjudicated bankrupt, and therefore he was no longer entitled to possession, even as a statutory tenant.

Motion.

This was an application by Julianne Kelly for an order declaring that the interest of James Drew, a bankrupt, in certain premises, described in the schedule to the notice of motion, was liable to forfeiture upon his bankruptcy, and that she was entitled to treat the lease under which he held the premises as forfeited, and to re-enter upon and take possession of the said premises; and also for an order that the Assignees in...