Tralee Urban District Council v McSweeney

• Jurisdiction: Ireland
• Judgment Date: 30 March 1954
• Date: 30 March 1954
• Court: Supreme Court

Tralee U.D.C. v. M'Sweeney

THE URBAN DISTRICT COUNCIL OF TRALEE

Plaintiffs

and

ANDREW M'SWEENEY

Defendant.

Supreme Court.

Landlord and tenant - Lease - Covenant prohibiting assignment underletting or parting with possession without lessors' consent - Sub-lease of portion of premises comprised in lease without lessors' consent - Assignment of sub-lessee's interest without consent - Notice to quit served by sub-lessors on assignee of sub-lease - Proceedings for recovery of the premises in sub-lease by sub-lessors - Consent to sub-lease and acknowledgment of sub-tenancy given by lessors on application of assignee of sub-lease - Whether consent of lessors given subsequent to the making of the sub-lease effective in law - Landlord and Tenant Law Amendment Act (Ireland), 1860 (23 & 24Vict., c. 154), s. 18.

The Landlord and Tenant Law Amendment Act (Ireland), 1860, s. 18, provides:— "When any lease has been or shall be made containing an agreement against sub-letting . . . it shall not be lawful for the tenant to sub-let the said lands or any part thereof, . . . without the express consent in writing of the landlord or of his agent thereto lawfully authorised, testified by his being a party to the instrument of sub-lease, or by an endorsement on or subscription of such instrument, 'or by a note in writing signed by such landlord or his agent' . . ."

A lease for a term of years contained a covenant by the lessee not to assign, transfer, underlet, mortgage, charge or part with possession of the demised premises or any part thereof without first obtaining the consent of the lessors, a county council, in writing under the common seal of the county council. The lessee sub-let portion of the premises without the lessors' consent. The sub-lease contained a covenant by the sub-lessee not to assign or sub-let the demised premises or any part thereof without the previous consent in writing of the sub-lessors. The sub-lessors later commenced proceedings to recover the premises, whereupon the owner of the sub-lessee's interest applied to the lessors for their consent to the sub-lease. The lessors duly consented in writing under their common seal to the sub-lease and confirmed the sub-tenancy in the premises. On the hearing of the action for the recovery of the premises an order for possession was made in favour of the plaintiffs. On appeal by the defendant, it was

Held by the Supreme Court (Maguire C.J., Murnaghan, O'Byrne and Kingsmill Moore JJ.) affirming the High Court, that as the rights of third parties were not affected, the sub-lease, inoperative in law until the consent of the lessors had been obtained, became valid once the consent had been obtained and all previous acts of the parties—including the notice to quit— must have the valid effect they would have had if the consent of the lessors had been given at the time of the execution of the sub-lease.

Dictum of Monahan C.J. in Butler v. Smith, 16 Ir. C. L. R. 213, at p. 220, applied.

Appeal from the High Court.

The County Council of the County of Kerry, the owners in fee simple of a building, known as the County Hall or the Ashe Memorial Hall, situate in the town of Tralee, made a lease of certain portions thereof to the Urban District Council of Tralee by an indenture, dated the 21st March, 1929. The lease contained inter alia a covenant against assigning, transferring, underletting or parting with possession of the demised premises or any part thereof without first obtaining the consent of the County Council in writing under its common seal. By indenture, dated the 1st August, 1929, the Urban District Council of Tralee purported to make a sub-lease of portion of the said premises to Bernard M'Sweeney without having obtained the consent of the County Council. The sub-lease contained a covenant against assigning or sub-letting the premises without the consent of the Urban District Council. By an indenture of assignment, dated the 30th September, 1933, Bernard M'Sweeney purported to assign all his interest in the sub-lease to Andrew M'Sweeney, without having first obtained the consent of the County Council or the Urban District Council. The Urban District Council served on Andrew M'Sweeney a notice demanding clear possession of the premises comprised in the sub-lease as from the 1st August, 1949. On the 26th April, 1949, Andrew M'Sweeney served on the Urban District Council a notice of intention to claim a new tenancy under the Landlord and Tenant Act, 1931, and on the 11th July, 1949, the County Council, following an application by Andrew M'Sweeney, consented in writing under its common seal to the sub-lease and confirmed Andrew M'Sweeney's sub-tenancy in the said premises. On the 29th July, 1949, a copy of the originating application to obtain a new tenancy was served on the Urban District Council and the Urban District Council thereupon served upon Andrew M'Sweeney a notice of dispute, dated the 16th August, 1949. At the hearing of this application a question was raised as to whether the sub-lease was a contravention of the covenant prohibiting assignment and underletting without consent and whether the said covenant was a covenant against sub-letting within the meaning of s. 18 of the Landlord and Tenant Law Amendment Act, 1860. The Circuit Court Judge adjourned the application and stated a case for the opinion of the Supreme Court. The Supreme Court by its judgment, dated the 15th November, 1950, held that the execution of the sub-lease was a breach of the covenant against assigning, underletting and parting with possession without consent, contained in the lease and that the said covenant was a covenant against sub-letting, within the meaning of s. 18 of the Landlord and Tenant Law Amendment Act, 1860. The Court also held that the premises comprised in the sub-lease did not constitute a tenancy to which Part III of the Landlord and Tenant Act, 1931, applied. The plenary summons in the action for the recovery of possession of the premises was served on the 30th January, 1950, and on the 13th February, 1952, the matter came on for hearing before the President of the High Court.

From the above judgment the defendant appealed to the Supreme Court (1).

Cur. adv. vult.

Davitt P. :—

This is an action to recover possession of portion of the County Hall, Tralee, which for nearly twenty years has been in the occupation of the defendant and has been used by him as a cinema.

By lease, dated the 21st March, 1929, the Kerry County Council demised this building to the Tralee Urban District Council for a term of 900 years at a small rent. The Urban Council by clause 2, covenant no. 8. of the lease, covenanted not to assign, transfer, underlet, mortgage, charge, or part with the possession of the demised premises or any part thereof without first obtaining the consent of the County Council under its common seal. There was a clause providing for re-entry by the lessors in the event of a breach of covenant.

By an indenture purporting to be a sub-lease and dated the 1st August, 1929, the Urban Council purported to grant and demise to one Bernard M'Sweeney "the theatre and the rooms passages and appurtenances thereunto belonging or connected therewith" situate in the Hall for the term of one year certain from the 1st August, 1929, and thereafter as yearly tenant at the annual rent of £572 payable in equal monthly instalments of £47 13s. 4d. Clause 12 provided as follows:— "The letting of the said premises is to be made subject to the terms and conditions of the lease under which the Council hold the same from the Kerry County Council, and the lessee shall be bound by all the terms and conditions of the said lease so far as they affect the demised premises."Clause 17 provided that either party might determine the letting at the end of the first or any subsequent year by giving to the other three months previous notice in writing to terminate at the end of any such year. Before executing the said indenture, the Urban Council had not obtained the consent of the Kerry County Council under seal or otherwise.

By indenture of the 30th September, 1933, Bernard M'Sweeney, after reciting that he had become lessee or tenant to the Urban Council of the theatre known as the Ashe Memorial Hall, and that he had agreed to assign his term and interest therein to Andrew M'Sweeney, purported to assign to the said Andrew M'Sweeney the said theatre and appurtenances to hold as tenant from year to year in place of him the said Bernard M'Sweeney subject to the terms and conditions of the said lease. Andrew is Bernard's brother and the defendant in this case.

A notice to quit was served by the Urban Council on the defendant some time in 1948 and thereafter up to the present, payments of £47 13s. 4d. have been made regularly each month by the defendant and have been acknowledged by the plaintiffs in their receipts as having been received"without prejudice" and as being for use and occupation and not rent. The notice to quit was considered to be defective and no proceedings were taken on foot thereof.

On the 12th March, 1949, Mr. W. F. Quinlan as County Manager duly ordered that another notice to quit be completed and served upon the defendant, so that his tenancy might be terminated as from the 1st August, 1949, and that proceedings be taken to recover possession of the premises. In accordance with the order, a notice to quit was duly prepared, completed, and executed by the County Manager acting on behalf of the Urban Council and the seal of the Council was duly affixed thereto. On the 4th April, 1949, the notice was served personally upon the defendant.

On the 11th July, 1949, the Kerry County Council by writing under their seal consented to the subletting of the premises in question purported to have been made by the Urban Council to Bernard M'Sweeney on the 1st August, 1929; and confirmed the sub-tenancy of Andrew M'Sweeney purported to have been created by the...