Sisk v Cronin

• Jurisdiction: Ireland
• Judgment Date: 21 December 1930
• Date: 21 December 1930
• Court: Supreme Court (Irish Free State)

High Court.

Supreme Court.

Sisk v. Cronin.

JOHN V. SISK

Plaintiff

and

FREDERICK CRONIN and JOHN CRONIN, Defendants (1)

Landlord and tenant - Action for recovery of possession - Statutory tenant - Tenant not in occupation - Possession given by tenant to brother - No assignment - Subtenancy - Decree for possession against tenant - Subtenant entitled to retain possession - Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. 5, c. 17), sects. 8, 15,sub-sect. 1 - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), sect. 4, sub-sects. 1 and 2, sect. 6, sub-sect.4 (b).

Appeal from the Circuit Court.

The plaintiff, John V. Sisk, brought a civil bill against the defendants, Frederick Cronin, of 18 Sunday's Well, Cork, and John Cronin, of 11 Valentine Villas, The Lough, in the County of Cork, to recover possession of the dwelling-house, garden, and premises, No. 11 Valentine Villas, The Lough, in the County of Cork, on the ground of overholding. The Circuit Court Judge, Judge Kenny, gave a decree for possession, the decree reciting that it appeared to the Court "that the said premises were held by the defendant, Frederick Cronin, from the plaintiff at the monthly rent of £1 16s. 8d., increased to the monthly rent of £2 15s. under the provisions of the Increase of Rent and Mortgage Interest (Restrictions) Acts, and that the defendant's, Frederick Cronin's, interest determined on the 31st

day of December, 1927." The Circuit Court Judge also ordered that the plaintiff do recover from the defendants the sum of £5 9s. 8d. costs. The decree was given on the 19th June, 1928.

From this decree the defendants appealed to the High Court. The facts have been summarised in the head-note, and are fully stated in the judgments. The plaintiff had served a notice to quit on the 30th November, 1927, on the defendant, Frederick Cronin, requiring him to deliver up possession of the premises on the 31st day of December, 1927.

The plaintiff appealed to the Supreme Court (5).

Prior to 1920 F.C. became tenant of a dwelling-house under a contract of tenancy from month to month at the monthly rent of £1 16s. 8d. In 1920 F.C. went to reside elsewhere and never subsequently returned to the house. In 1920 F.C.'s brother, J.C., went, with F.C.'s permission, to reside in the house. A notice of increase of rent was served in 1920, subsequent to J.C. going into occupation. F.C. and J.C. were partners in business, and the rent of the dwelling-house was paid from the office of their firm, and was debited in the firm's accounts to J.C.'s salary or to his share of the profits. J.C. was rated in respect of the occupation of the dwelling-house. Both F.C. and J.C. stated in evidence that there was no assignment of the tenancy from F.C. to J.C. The landlord brought an action in the Circuit Court against both F.C. and J.C. to recover possession, and a decree for possession was granted by the Circuit Court Judge. On appeal:

Held by the High Court that the appeal must be allowed and the decree of the Circuit Court Judge discharged. On appeal to the Supreme Court:

Held that the proper inference from the evidence was that J.C. occupied the dwelling-house as tenant at will to his brother F.C.; that accordingly the proviso to sect. 4, sub-sect. 1, of the Increase of Bent and Mortgage Interest (Restrictions) Act, 1923, applied; it therefore followed that the landlord was not precluded from obtaining an order for possession against F.C.; that it further followed that, as the dwelling-house had been lawfully sublet to J.C. before proceedings were commenced, J.C. was entitled to retain possession under sub-sect. 2 of sect. 4 of the Act, notwithstanding the judgment for recovery of possession against F.C.

Cur. adv. vult.

Meredith J. :—

This was an ejectment for overholding of a dwelling-house, No. 11 Valentine Villas, The Lough, Cork, and it was not disputed that the Increase of Rent and Mortgage Interest (Restrictions) Act applies. The tenancy was one from month to month, and the original rent was £1 16s. 8d. a month, which was increased to £2 16s. 4d. under the 1920 Act. On the 30th November, 1927, notice to quit was served on the tenant to give up possession on the 31st December, 1927, and, possession being refused, these ejectment proceedings were brought against the tenant, Frederick Cronin—his brother, John Cronin, who was in occupation, being also joined. The monthly rent had been regularly paid by Frederick Cronin down to the expiration of the notice to quit.

The tenant, Frederick Cronin, relies on sect. 4 of the Act of 1923, and John Cronin relies solely on the rights of his brother, Frederick, whose permission he has to occupy the premises. In reply to the defence under sect. 4 of the Act (1), the plaintiff

contends, first, that Frederick Cronin assigned the premises to John; and, secondly, that the Act only protects occupying tenants, and that Frederick is not in occupation.

It appears from the evidence that Frederick Cronin was in occupation down to some date in 1920, when he had to go away for ten or twelve months. He then allowed his brother, John, to go into occupation of the premises. On his return, he took a house in Sunday's Well, and allowed his brother to continue in occupation of the premises in Valentine Villas, and his brother has continued in such occupation ever since. It appears that since John Cronin went into occupation the rent, though nominally paid by Frederick, has in effect been paid by John. Both Frederick and John denied that there was ever any purported assignment or subletting of the premises to John, and both maintained that John was only a permissive occupant. The landlord never recognised John as a tenant. No attempt was made to prove that there ever was in fact any perfected assignment, and the argument of the plaintiff's counsel, based on an alleged assignment, is founded only on an inference, which we are asked to draw from the change of occupation and the discharge of the rent by John.

Although, on the point of assignment, counsel's argument on behalf of the plaintiff was difficult to follow, it is easy to see the real point of the plaintiff's case. In the case of Keevesv. Dean(1) it was decided that the interest of a statutory tenant under the 1920 Act was a mere personal interest, and so not assignable; and under the 1923 Act it was expressly made a condition of the statutory tenancy that the tenant should not"assign the dwelling-house, or any part thereof, without the consent in writing of the landlord." That being so, is the tenant to be allowed to circumvent the Legislature by continuing the nominal tenant, paying the rent, while the would-be assignee goes into occupation, and recoups the tenant for the payment of the rent? The position, it may be argued, is just the same as if there had been an effective assignment, save that the original tenant remains liable to the landlord for the rent, and the observance of all the terms and conditions of the tenancy. If it is possible for such a transaction to be effective the policy of the Act is defeated.

On the other hand, it is not difficult to see what are the real merits of the defendants' case. They are that the plaintiff's argument on the point of assignment in substance must ultimately be founded on his second contention, viz.: that the Act only protects occupying tenants. If that contention be correct, then Frederick Cronin has no defence, because he is not the occupying tenant, and John is not a subtenant, and does not, and could not, claim as an assignee. If that contention is unsustainable, then the merits of the plaintiff's case at once disappear. It would be absurd for the Court to be staggered by recognising that in substance and effect the position is the same as if there had been a voluntary assignment, save for the qualification that Frederick remains liable for the rent, if in substance and effect the position is precisely, and without qualification, the same as if the tenant had sublet the premises, and if in such case the subtenant would be protected from eviction. There is no sense in asking the Court to deal with the case as if the tenant had assigned, and allow the landlord to eject both defendants, when the Court might just as reasonably—and, indeed, more reasonably, since the tenant remained liable for the rent—deal with the case as if the tenant had sublet, in which case the subtenant would be protected by sub-sect. 2 of sect. 4 of the Act. If the plaintiff had been asking the Court to hold that Frederick Cronin had sublet the premises to John, and that, accordingly, he, the plaintiff, was entitled to the benefit of the proviso at the end of sub-sect. 1, and was, therefore, entitled to judgment as against Frederick, but without prejudice to the rights of John, then the plaintiff would have real merits, but then the case would have been settled at once, for all that the defendants are seeking to do is to obtain protection for the possession of John. But the plaintiff expressly stated that he is...