Sammon v Byrne

JurisdictionIreland
CourtSupreme Court (Irish Free State)
Judgment Date15 Jul 1926

High Court.

Supreme Court.

Sammon v. Byrne.
ELLEN SAMMON
and
PATRICK J. BYRNE (1)

Landlord and tenant - Rent Restriction - Increase of rent - Notice of increase - Validity - Rent increased during currency of lease - Notice purporting to alter terms of tenancy - Liability for repairs - Increase not due or recoverable - Landlord claiming possession - No rent due - Exclusion of maxim, "Quilibet potest renunciare juri pro se introducto" - Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11Geo. 5, c. 17), sect. 2, sub-sect. (1) (d); sect. 3; sect. 15.

Appeal from the Circuit Court.

The plaintiff, Ellen Sammon, issued a Civil Bill to recover possession of certain premises, comprising a dwelling-house, known as No. 108 North Circular Road, Dublin, held by the defendant, Patrick J. Byrne, from the plaintiff. The Civil Bill was heard by the Assistant Circuit Court Judge for Dublin (Judge Pigot), who granted a decree for possession, and from that decree the defendant appealed to the High Court.

By a lease dated the 28th September, 1917, the plaintiff let the premises to the defendant for a term of three years from 1st October, 1917, at a rent of £65 a year. On the 12th August, 1920, the plaintiff's solicitors wrote to the defendant pointing out that the tenancy would expire on the 1st October following, and stating that if the tenant desired to continue in possession the rent would be £87 12s. 2d. a year. On the 23rd August the defendant replied to this letter and asked for a statement

of the standard rent of the house, and requesting the plaintiff to have some repairs done to the house. (Both these letters are set out in the judgment of Sullivan P.) On the 24th August, the plaintiff served a notice of intention to increase the rent, the notice following the form prescribed by the First Schedule to the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, as amended in its application to Ireland by sect. 18, sub-sect. 2 (g), of the Act. The address of the premises, to which the notice referred was stated to be No. 108 North Circular Road, Dublin, and the notice was as follows:—

"Take notice that I intend to increase the rent of £16 5s. per quarter at present payable by you as tenant of the above-named premises by the amount of £8 9s. 3d. per quarter.

The increase is made up as follows:—

  1. (a) [This clause in the Notice was struck out.]

  2. (b) £3 19s. 3d. under paragraph (b) of sub-sect. (1) of sect. 2 of the Act, on account of an increase in the rates payable by me from £5 0s. 1d. per quarter to £8 19s. 41/2d. in respect of the premises.

  3. (c) £1 13s. 9d. under paragraph (c) of sub-sect. (1) of sect. 2 of the Act, being 15 per cent. on the net rent of the premises. The net rent is £44 19s. 8d. The standard rent is £65.

  4. (d) £2 16s. 3d. under paragraph (d) of sub-sect. (1) of sect. 2 of the Act, being 25 per cent. on the net rent of the premises. The net rent is £44 19s. 8d. The standard rent is £65.

All the increases will date from the 25th September, 1920, being four clear weeks from the date of this notice.

The increase under head (d) is on account of my responsibility for repairs, for no part of which are you under an express liability.

At any time or times not being less than three months after the 24th day of August, 1920, you are entitled to apply to the county court for an order suspending the increases under heads (c) and (d) above if you consider that the premises are not in all respects reasonably fit for human habitation or otherwise not in a reasonable state of repair. You will be required to satisfy the county court by a report of the medical officer of health of the dispensary district or otherwise that your application is well founded, and for this purpose you are entitled to apply to the medical officer of health of the dispensary district for a certificate. The issue of a certificate and the payment of a fee are subject to regulations of the Local Government Board for Ireland. The address of the Medical Officer of Health of the Dispensary District is City Hall, Cork Hill, Dublin."

The defendant remained in possession, and from 1st October, 1925, paid rent at the rate of £102 14s. 3d. per annum (not £98 17s. as stated in the Notice). The tenant paid no rent after February, 1925. He took up the position that the Notice was not a valid notice; that the original rent under his lease was the only rent that he was liable for, and that, therefore, there was no rent due by him to the plaintiff; on the contrary, he had overpaid the defendant by the sum of £155 1s. 5d. The plaintiff then brought the ejectment proceedings in the Circuit Court, based on the failure of the defendant to pay the rent, on the assumption that the defendant was a statutory tenant. The remaining facts are set out in the judgments.

The plaintiff appealed to the Supreme Court (1).

The Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, sect. 3, sub-sect. 2, provides: "Notwithstanding any agreement to the contrary, where the rent of any dwelling-house to which this Act applies is increased, no such increase shall be due or recoverable until . . . after the landlord has served upon the tenant a valid notice in writing of his intention to increase the rent . . ."

Held by the Supreme Court, that effect must be given to the requirement of the section that the notice must be a "valid" notice; that "valid"means more than correct in form; it means correct in substance as well as in form. And a notice is not valid which purports to increase the rent before the landlord is entitled to possession, namely, during the currency of the original term of years for which the tenant holds the premises; or which purports to alter the terms and conditions of the original contract of tenancy, namely, by altering the liability for repairs.

Decision of the High Court affirmed.

Observations of Salter J. in Penfold v. Newman, [1922] 1 K.B. 645,applied.

Elliott v. Ellis, [1923] 2 I.R. 45, and Bourne v. Litton, [1924] 2 K.B. 10,distinguished.

The maxim, "Quilibet potest renunciare juri pro se introducto," is excluded by the words of the section: "Notwithstanding any agreement to the contrary."

Sullivan P. ...

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