O'Reilly v Gleeson

• Jurisdiction: Ireland
• Judgment Date: 20 January 1975
• Docket Number: [1972 No. 1501 P]
• Date: 20 January 1975
• Court: Supreme Court

O'Reilly v. Gleeson

Patrick O'Reilly

Plaintiff

and

Mary Gleeson

Defendant

[1972 No. 1501 P]

High Court

Supreme Court

Landlord and tenant - Lease - Forfeiture - Disclaimer by lessee of title of lessor - Denial of lessor's title to part of demise - Acts in pais - Lessor not entitled to recover possession.

The defendant made arrangements to sell by tender the premises demised to her by the plaintiff by a lease dated the 29th August, 1946; the property comprised in that lease was bounded on the east by Leeson Lane. The defendant also arranged to sell some property on the west side of Leeson Lane which was held by her under a lease dated the 12th July, 1933, and granted by a third party. The defendant's particulars and conditions of sale were drawn on the mistaken basis that a parcel of land at the eastern end of the premises demised by the lease of 1946 was held by the defendant as part of the property demised to her by the lease of 1933, and one of the conditions of sale compelled a purchaser to assume and admit that the map endorsed on the lease of 1946 was inaccurate. The plaintiff complained to the defendant about her denial of his title to the parcel at the eastern end of the demise of 1946 but the defendant in correspondence on several occasions repeated her denials of the plaintiff's title. The plaintiff claimed in the High Court the possession of the entire premises demised by the lease of 1946, or the said parcel, on the ground that there had been a forfeiture of the lessee's interest under that lease.

Held by Butler J., in giving judgment for the plaintiff, that the plaintiff was entitled to forfeit the defendant's interest in the portion of the demise of 1946 which was the subject of the defendant's disclaimer of title, and to recover possession of that portion.

The defendant appealed to the Supreme Court and the appeal was heard by FitzGerald C.J., Henchy and Griffin JJ. The Chief Justice died without having delivered a judgment and the parties agreed to be bound by the judgments of the remaining two members of the Supreme Court.

Held by Henchy and Griffin JJ., in allowing the appeal, 1, that, in the absence of an appropriate re-entry clause in the lease, a disclaimer of title by an act in paisis not sufficient to ground a forfeiture of the lessee's interest under a lease for a term certain.

Doe d. Graves v. Wells, 10 Ad. & E. 427; Cricklewood Property & Investment Trust Ltd. v. Leighton's Investment Trust Ltd.[1945] A.C. 221; and Warner v. Sampson[1959] 1 Q.B. 297 considered.

2. The actions of the defendant did not constitute a disclaimer of the plaintiff's title as lessor of the lease of 1946.

3. A forfeiture terminates the lessee's interest in all the land demised by the lease.

Plenary Summons.

The plaintiff claimed possession of the premises known as No. 60 St. Stephen's Green, Dublin, which had been demised by him to six members of the Irish Sisters of Charity (including the defendant) as joint tenants by an indenture of lease dated the 24th August, 1946. The defendant was the survivor of the six lessees. In the circumstances indicated in the head-note and described in the judgments. post, the defendant asserted that part of the premises demised to her by the lease of 1946 was held by her under a lease dated the 12th July, 1933, and granted by the Earl of Pembroke and Montgomery. The defendant repeated that assertion several times in correspondence between the parties but she did not persist in that assertion either in her defence or at the trial of the action in the High Court, and she did not attempt to justify that assertion by producing at the trial the lease of 1933. During the hearing of the appeal the defendant undertook not to repeat that assertion during the continuance of the lease of 1946.

The defendant appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard on the 18th and 19th June, 1974. by FitzGerald C.J., Henchy and Griffin JJ.

Cur. adv. vult.

Butler J.

By lease dated the 16th August, 1895, Patrick O'Reilly (the grandfather and predecessor in title of the plaintiff) demised to Richard F. Tobin the premises which are the subject matter of these proceedings; the term was 20 years from the 15th July, 1895, and the lease reserved a yearly rent of £125. The demised premises are described in the lease as @". . . the dwellinghouse garden and yard stable coach house and premises known as Number 60 on the east side of Stephen's Green in the Parish of St. Peter and County of the City of Dublin which said house and premises are bounded . . . on the east by Leeson Lane . . . which said premises are more particularly described on the map hereunto annexed."# There was also granted to the lessee a right of way by a door from Leeson Lane along a passage leading into the yard of the premises and there was reserved to the lessor a like right of way over portion of the yard which was enclosed by a newly built wall. The map clearly shows the stable opening directly out on Leeson Lane and. alongside it, the passage and gate or door referred to. By an endorsement dated the 19th June, 1903, the term granted by the lease of 1895 was extended for a period of 30 years from the expiration of the term originally granted, i.e., from the 15th July, 1915. In 1916 the Irish Sisters of Charity acquired the lessee's interest in the lease and the premises have since been used by them in conjunction with, and as part of, the former St. Vincent's Hospital.

On the 29th August, 1946, the plaintiff made a further lease of the premises to six lessees as joint tenants. The term was 30 years from the 15th July, 1945—the date of expiration of the extended term of the lease of 1905. The lessees were nominees of the Sisters of Charity and the defendant is the sole survivor. It is recited that the lease is granted by way of renewal of the earlier lease pursuant to an application made under the provisions of the Landlord and Tenant Act, 1931. In reciting the lease of 1895, the lease of 1946 refers to the premises as @"therein and hereinafter further demised."# There can be no doubt, therefore. that the premises intended to be demised by the lease of 1946 were the same as those comprised in the lease of 1905. In the lease of 1946 the premises are described as:—@". . . the dwellinghouse, garden, yard, garage, shed and premises known as Number Sixty on the east side of Saint Stephen's Green in the Parish of Saint Peter and County of the City of Dublin which said dwellinghouse and premises are more particularly described on the map endorsed hereon and thereon coloured red."# The map again clearly shows the garage opening directly in Leeson Lane and the passage over which other buildings had apparently been erected.

From the statements of the parcels in both leases and from both maps, it is clear beyond any question that the premises demised by the lease of 1946 extended to and was bounded by Leeson Lane and comprised the garage and the buildings over the original right of way. During the hearing this was (for the first time) admitted to be so on behalf of the defendant.

In 1971 the Sisters of Charity put the premises up for sale as part of the former St. Vincent's Hospital. Conditions of sale, a tender form and a guide plan of the entire property for sale were prepared, published and circulated on behalf of the vendors. The guide plan shows the premises demised by the lease of 1946 in two portions: one portion was coloured brown and comprised the area of the house, the garden and portion at least of the original yard, the other portion was coloured blue and comprised the area of the stable or garage and possibly portion of the stable yard.

There are a number of references to the premises in the particulars and conditions of sale. First, Lot B of the property for sale is described as @"All That And Those the premises known as Number 60 St. Stephen's Green in the City of Dublin as indicated on the plan annexed to these conditions and thereon coloured brown."# The garage and the frontage to Leeson Lane are, therefore, excluded from the description. The premises are stated to be held under the lease of 1946 with the exception of a small hatched area which appears to correspond to the portion of the stable yard which was excluded from the lease of 1895. This portion is stated to be held in fee simple free of rent.

Secondly, Lot A of the property for sale is described as @"All That And Those the premises known as St. Vincent's Hospital in the City of Dublin consisting of the premises Numbers 55, 56, 57, 58 and 59 St. Stephen's Green and premises on the West side of Leeson Lane as indicated on the plan annexed to these Conditions and thereon coloured red and blue respectively."# The premises on the west side of Leeson Lane (i.e., those coloured blue) are stated to be held under a lease dated the 12th July, 1933, from the Earl of Pembroke and Montgomery to Honoria O'Connor and others for the term of 10,000 years from the 29th September, 1936, at the yearly rent of one peppercorn.

Thirdly, clause 4 of the special conditions relating to Leeson Lane states:—@"The purchaser's particular attention is drawn to the map annexed to the lease dated 29th day of August, 1946 (in Lot B) made between Patrick O'Reilly of the one part and Mary Carew and others of the other part for a term of 30 years from 15th day of July, 1945, at the yearly rent of £295. Upon the map (which refers to the leasehold portion of No. 60 St. Stephen's Green) a small portion of Leeson Lane premises which is hatched on the plan annexed hereto is shown as being demised by the said lease. The purchaser shall be bound to assume and admit that the said map on the lease is erroneous in this respect and no objection or requisition shall be taken or made in respect of such error."#

These three references constitute a clear and unambiguous statement that the plaintiff is not entitled to the...