St.CATHERINE'S PARISH v ALKIN
| Jurisdiction | Ireland |
| Judge | Miss Justice Carroll |
| Judgment Date | 04 March 1982 |
| Neutral Citation | 1982 WJSC-HC 2639 |
| Docket Number | No. 8496P/1980 |
| Court | High Court |
| Date | 04 March 1982 |
BETWEEN:
and
1982 WJSC-HC 2639
THE HIGH COURT
Judgment of Miss Justice Carroll delivered the 4th day of March 1982.
The Plaintiff's claim is for damages for breach of covenant to repair under an Indenture of lease dated the 10th December 1880 made between the Plaintiff of the one part and John Cogan of the other part whereby the premises known as 114 and 115 Thomas Street in the City of Dublin were demised to John Cogan for the term of 100 years from the 1st January 1881 subject to the yearly rent of £180 sterling. The Plaintiff is a body corporate incorporated by private Act of Parliament (17 & 18 Vict. Cap. 23).
The Defendants are the last assignees of the lessee's interest under the said lease which has now expired. In 1972 they acquired a package which Included Nos. 113, 114 and 119 and a site to the rere of No. 117. An application to acquire the fee simple in Nos. 114 and 115 was refused by the County Registrar on 22nd February 1980.
The lessee under the lease covenanted with the lessors that he, his heirs, executors, administrators and assigns "all and will from time to time and at "all times hereafter during the continuance of the term hereby granted at his or "their own expense well and sufficiently uphold, support, maintain and keep the "premises hereby demised and all houses, buildings, walls and drains and "improvements whatsoever now "made, erected or built or which shall hereafter be "made, erected or built on the said hereby demised premises or any part thereof "in good sufficient tenantable order repair and condition and rebuild the same if "injured or destroyed by fire lightening tempest or other accident and at the "determination of this demise shall and will yield up the peaceable and quiet "possession thereof unto the said trustees their successors and assigns in such "good order repair and condition as aforesaid and will permit the said trustees "their successors and assigns and their surveyors, agents or workmen at all "reasonable times during the said term to enter into the said premises to view "the condition thereof and of all defects and want of repair there found to give "or leave notice in writing at the said premises for the said John Cogan, his "executors administrators or assigns to repair the same within three calendar "months next after such notice within which said time he the said John Cogan his "executors, administrators or assigns will repair and make good all serious "defects and want of repair mentioned in such notice."
By letter dated the 27th February 1980 the Plaintiff called on the Defendants to put the said premises into repair.
By letter dated the 23rd April 1980 the Plaintiff sent to the Defendants dilapidation notices specifying the defects and wants of repair in the said premises and called on the Defendants to carry out the works specified in the notices within three months from the date thereof in accordance with the terms of the lease.
The Defendants did not carry out the repairs and the lease expired on the 31st December 1980.
Section 65 of the Landlord and Tenant (Amendment) Act 1980provide as follows:-
2 "1. Where a lease (whether made before or after the commencement of this Act) of a tenement contain a covenant (whether express or implied and whether general or specific) on the part of the lessee to put or to keep the tenement in repair during the currency of the lease or to leave or put the tenement in repair at the expiration of the lease and there has been a breach of the covenant, the subsequent provisions of this section shall have effect.
(2) The damages recoverable in any court for the breach shall not in any case exceed the amount (if any) by which the value of the reversion (whether mediate or immediate) in the tenement is diminished owing to the breach.
(3) Save where the want of repair is shown to be due, wholly or substantially, to wilful damage or wilful waste committed by the lessee no damages shall be recoverable in any court for the breach if it is shown -
(a) that, having regard to the age and condition of the tenement, its repair in accordance with the covenant is physically impossible or,
(b) that, having regard to the age, condition, character and situation of the tenement, its repair in accordance with the covenant would involve expenditure which is excessive in proportion to the value of the tenement, or
(c) that having regard to the character and situation of the tenement, the tenement could not when so repaired be profitably used or could not be profitably used unless it was re-built, re-constructed, or structurally altered to a substantial extent."
This Section is identical for all practical purposes to Section 55 of the Landlord and Tenant Act 1931.
It is necessary to make the following determinations in this matter:-
1. Are all the items of want of repair specified in the dilapidation notices occasioned by breach of covenant by the lessee?
2. What is the cost of repairing the damage occasioned by the breaches of covenant?
3. What is the amount by which the value of the reversion is diminished owing to the breaches?
4. Do any of the sub-clauses in Section 65(3) apply?
5. If so, was the want of repair or any of it caused by the wilful damage or wilful waste committed by the lessee?
Question 1: Are all the items of want of repair specified in the dilapidation notices occasioned by breach of covenant by the lessee?
Both houses are in a very bad state of repair and number 114 is worse than number 115. Since they acquired the premises in 1972 the Defendants spent a small amount in running repairs but not enough to comply with the covenant. By virtue of section 12, Deasey's Act (Landlord and Tenant Law Amendment Act (Ireland) 1860) the Defendants are liable as successors in title of the original lessee for breaches of the covenant to repair by their predecessors in the title as well as has themselves. The premises had been completely re-built by the lessors in or around 1880 under a building contract dated the 3rd of November 1879. It seems that the buildings formerly on that site had been destroyed by fire.
One of the causes of damage to number 114 was due to the demolition of number 113 about sixteen years ago and the consequent exposure of the flank wall of number 114 which was formerly protected by number 113.
At the rear, each house was stepped back from its neighbour so that the back wall of number 113 joined the side wall of number 114 about four feet in from the back wall of that house.
I consider that damage caused by the exposure of this wall is not due to a breach of covenant to repair by the lessee. Therefore I do not think that the item in the Schedule of Dilapidations relating to number 114 which provides for lining the wall, fixing sarking felt and trimming around the existing flying shores is the lessee's responsibility. Similarly where it is provided in the Schedule of Dilapidations for the removal of all loose, dead or decayed plaster from the inside of that side wall, this is not the lessee's responsibility either, because the primary cause of the damage must be the exposure of the outside wall.
There was a conflict of evidence in relation to whether there was a crack or a fracture in the flank wall of number 114 at the former junction of the back wall of number 113 ( a fracture being defined as a crack that went through the entire fabric of the wall).
I inspected the premises myself. I confirmed, as was the evidence, that there was a crack on the outside of the flank wall which corresponds with the crack on the inside of the flank wall. Therefore on the balance of probabilities I hold this is a fracuture not a crack. Accordingly since this is a structural defect any work connected with repairing this is not the responsibility of the lessee.
There was a further conflict of evidence in relation to the front wall of the two houses, namely whether the wall was distorted on the vertical and horizontal plane and whether the parapet was leaning in. To my untrained eye the front wall was undulating at the top storeys and the parapet was leaning in but both conditions could be described as slight. Therefore I hold that the front wall of both houses is slightly distorted and the parapet is leaning in slightly.
However in the case of Gilligan .v. Silke ( 1963 I.R. 1)Kingsmill-Moore J. (at page 22) gives as a typical incidence of permissive waste,
"failure to take steps to prevent an incipient bulge in the wall from affecting the stability of the whole wall through neglect to supply bars."
Therefore by analogy I consider that the lessee should be held responsible for a condition of the front wall.
There was also conflict of evidence whether the front wall was originally bonded into the flank wall of number 114 and the party wall of 114/115. It is in my opinion immaterial which was the case. The necessity to repair the front wall which includes stitching the front wall to the flank wall and party wall is necessary because of the neglect of the front wall and does not depend on whether the wall was bonded originally or not.
In relation to the garden at the rear, the Schedule of Dilapidations specifies the restoration of demolished buildings in the garden. I find that the evidence in relation to these buildings is very tenuous and I do not consider that this want of repair has been proved to my satisfaction.
Similarly in relation to a dividing wall between numbers 114 and 115, the evidence does not establish to my satisfaction that it existed at the time of the lease or since then. No such wall is shown on the lease map.
It is clear...
To continue reading
Request your trial