Salmon McCarthy

• Jurisdiction: Ireland
• Court: Supreme Court (Irish Free State)
• Judgment Date: 11 March 1925
• Date: 11 March 1925
• Docket Number: (1924. No. 75.)

Supreme Court.

(1924. No. 75.)

Rinn v. M'Carthy.

RINN

and

M'CARTHY (1)

Landlord and Tenant - Recovery of possession - Whether possession protected by Increase of Rent and Mortgage Interest (Restrictions) Act,1923 - Letting "for a temporary convenience or to meet a temporary necessity" - Whether the purpose of the letting must be stated - Letting Agreement not signed by tenant - Rent paid - Position of Tenant - Estoppel - Six months' tenancy renewed from time to time - Notice to quit - Land Law (Ir.) Act, 1881 (44 & 45 Vict., c. 49),sect. 58, sub-sect. 7 - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), sect. 4, sub-sect. 8.

Appeal from an order of Sullivan P.

By an agreement in writing, dated the 1st day of November, 1920, and made between the plaintiff of the one part and the defendant of the other part, in consideration of the sum of £23 paid by the defendant to the plaintiff, the plaintiff let to the defendant a house and garden situate in the townland of Warren or Drum, in the town of Boyle, for a period of six months from the 1st day of November, 1920, to the 1st day of May, 1921. The agreement contained the following clause:—"The

letting shall be for the term hereinbefore mentioned and no longer, and shall not be in any way in the nature of a continuing letting, and shall absolutely determine and end on the 1st day of May, 1921." At the time of this letting the plaintiff was living in America, but he intended to return to Ireland and to live in the house himself. It was explained to the defendant by the plaintiff's brother, who was acting for the plaintiff in the matter, that the letting of the house was being made for a period of six months only to cover the period during which the plaintiff would probably be absent from this country, but this purpose of the letting was not stated in the agreement. The house had previously been let to one Patrick Bowles, who paid a rent of £42 a year, and the defendant, when he heard that Bowles was leaving, asked the plaintiff's brother to let the house to him. The defendant was an Instructor in the Department of Agriculture, and had been living in Boyle for some years previously. On the expiration of the six months, a new agreement in similar terms was entered into between the plaintiff and the defendant; and, on its expiry, a further agreement, also in similar terms, and for a period of six months only, was entered into and duly signed by the defendant. The express purpose for limiting the letting to periods of six months was conveyed to the defendant on each occasion a new agreement was signed. But in May and November, 1922, and also in May and November, 1923, the agreements which were sent to the defendant for signature each for the term of six months— were not signed or returned by him, although he duly paid the rent reserved thereby. In the year 1924 the plaintiff decided to live permanently in America, and sold the house. In order to give possession to the purchaser, the plaintiff demanded possession from the defendant on the termination of the period ending the 1st May, 1924. The defendant having refused to give up possession, this action was brought to recover possession of the premises. No notice to quit had been served by the plaintiff. The defendant in his defence stated that his tenancy had not been determined, and he relied on the provisions of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923).

The action was tried by Sullivan P. without a jury on the 23rd January, 1925. At the close of the plaintiff's case counsel for the defendant asked for a direction on the grounds:—First, that prior to May, 1924, a tenancy was existing which required some notice to terminate: Right v. Darby(1);Dougal v. M'Carthy(2); and secondly, that the defendant's possession was protected by section 4 of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, the letting not being excluded from the operation of that section by sub-sect. 8, since, in the case of a letting for temporary convenience within the meaning of that sub-section, the purpose of such letting must

be made known to the tenant, and this had not been done in the case of the letting made to the defendant in November, 1923, in respect of which the action was brought: Driscoll v.Riordan(1). The direction asked for was refused.

Sullivan P. accepted the evidence of the plaintiff's brother that before the first agreement was signed it was explained to the defendant that the letting was being made for a period of six months only to cover the period during which the plaintiff would probably be absent from the country, and that at the end of the first period of six months, and at the end of the subsequent period of six months, a similar arrangement was made with the defendant for a similar reason. Sullivan P. held:—First, that there was no continuing tenancy in the premises prior to May, 1924, which required to be terminated by a notice to quit before the plaintiff could recover possession; and secondly, that the letting was one...