Whelan v Madigan

• Jurisdiction: Ireland
• Court: High Court
• Judge: KENNY J.:
• Judgment Date: 18 July 1978
• Neutral Citation: 1978 WJSC-HC 3765
• Date: 18 July 1978

WHELAN v. MADIGAN

BETWEEN:

NORAH WHELAN , WILLIAM THORNHILL, PIERCE O'NEILL AND JOAN LYNCH

.v.

PATRICK MADIGAN

1978 WJSC-HC 3765

191P /1978

258P /1978

259P /1978

260P /1978

THE HIGH COURT

1 Judgment delivered 18th July 1978. KENNY J.:

2 26 Elgin Road, Dublin, a fine terrace house with a basement and three stories, was built about 1860. The cost of heating these large old houses, the difficulty of getting domestic employees and the inflation have made their maintenance as one residence almost impossible and so, many of them have been converted into three or four flats. This was the fate of 26 Elgin Road. The basement was let as a flat in May 1943 and, in 1951, the remaining part of the house was converted into three flats. The approach to the house is by a flight of stone steps leading to the hall level: these are not in the middle of the house but at the right hand side as one faces it. The result was that the flat on the hall floor consisting of two large rooms on the left of the hall door together with the return room on the stairs became one flat. There had been a large hall in the house and to make the flat on the hall floor level self contained, a light stud plaster partition with an entrance door in it was constructed with one side close to the stairs which were on the right of the hall and the front partition enabled a door to be built in it which led into a small hall. This was let to Mr. Thornhill, the second named plaintiff, after the conversion had been completed. The conversion also included the fixing of three letter boxes on the inside of the hall door and the three tenants were given keys to separate boxes. The flat above Mr. Thornhill's was constructed by making a hall door off the return landing so that it was self contained. The top flat was then made separate by erecting a hall door at beginning of the stairs which led to it in the hall outside the first floor flat. Thus the tenant of the top flat had one which was self contained and which included the flight of stairs leading from the hall in the first floor flat.

3 In these four actions which were heard together, the plaintiffs sue Mr. Madigan, the defendant, claiming an injunction in each case to restrain him from interfering with their peaceable enjoyment of the properties let to them and damages for breach of the obligation to give this and for trespass and intimidation. The defendant counterclaims against them for damages for breach of their covenants to keep the properties let to them in repair. The plaintiffs' claim arises out of incidents which occurred on the 7th, 9th and 11th of January, 1978.

4 The letting agreements used were, unfortunately, not standard forms and as the tenants rights depend, in part at least, on the terms of the agreements, it is necessary to deal with the principal provisions of each of the agreements. All the contractual terms for which the properties were let have long since expired and the tenants now hold the flats let to them as monthly tenants on the terms contained in the letting agreements which are imported into the monthly tenancies which now exist. The four tenancies are within the protection given by the Rents Restrictions Acts and so the rents payable are very low.

Mr. Thornhill

5 His tenancy agreement was made on the 18th of July 1951 and by it the hall flat comprising two rooms, kitchenette and bathroom on the hall floor and one room on the return floor together with the exclusive use of the garden at the rear and the right of ingress, egress and regress through the hall, hall door, entrance hall and passages, were let for a term of one year from the 11th of June 1951 at the rent of £82.55 per annum. He agreed to keep the interior of the premises in the same order, repair and condition as they were then, not to take down any fixtures or fittings whatsoever or to put up or erect other fixtures or fittings (electric and gas fittings excepted) and provision was made that the tenancy should, if continued after the term thereby granted, be deemed to be a monthly tenancy at the same rent and subject to the same covenants and conditions as were contained in the agreement and that such tenancy arising at the expiration of the one year should be terminable by either party by one calendar months notice in writing. The landlord covenanted with Mr. Thornhill to pay all the rates and taxes payable in respect of the property let and "(c) that the tenant paying the said rent and performing and observing the covenants and conditions hereinbefor contained may have quiet and peaceable enjoyment of the said premises".

Miss Lynch

6 By the tenancy agreement made on the 19th of February 1962 which Miss Lynch had, the three rooms on the drawing room floor and the kitchen and bathroom on the upper return floor were let to her for two years. She covenanted to keep the interior of the premises let to her and the doors, windows and landlord's fixtures in good and tenantable order, repair and condition. The landlord covenanted with her "that the tenant paying the rent and observing the covenants and stipulations on the tenants part herein contained shall during the tenancy quietly enjoy the demised premises without interruption by the landlord or any person claiming under or in trust for the landlord".

Miss Whelan

7 By an agreement made on the 15th of October 1955 "the self-contained residential flat" comprising the entire top floor of the house and premises 26 Elgin Road with a right of way only through the main entrance door, hallway and stairway of the house to and from the said flat were let to her for twenty four months from the 1st of October 1955 at the monthly rent of £11.65 and she agreed with the landlord to permit her the then landlord on giving due notice at all reasonable times during the tenancy to enter the said flat for the purpose of inspecting the condition and state of repair thereof, not to put up any fixtures or fittings whatsoever (electric and gas light fittings, cookers, heaters and stoves excepted), to keep and maintain the interior of the said flat in good and tenantable order, repair and condition during the tenancy, reasonable wear and tear only excepted. There was provision that unless either party gave one months notice in writing to the other of their intention to terminate the tenancy, it should continue thereafter as a tenancy from month to month on the same terms and conditions as were in the agreement and that the tenancy so arising could be determined by one months notice in writing expiring on a gale day. There was no covenant by the landlord for quiet and peaceable possession and so the covenant implied by s. 41 of the Landlord and Tenant (Ireland) Act 1860 (Deasy's Act) would apply but this prevails so long as the tenant pays the rent and performs the agreements by her in the lease. This covenant for quiet enjoyment would have become a term of the tenancy which arose on the expiration of the two year period but it applies so long as the tenant pays the rent. It was agreed during the hearing that on the 1st of January 1978 Miss Whelan owed £114.50 for rent and so the covenant for quiet enjoyment imported into the monthly tenancy was not in force when the events complained of happened. The result is that Miss Whelan did not have the benefit of a covenant for quiet enjoyment.

Mr. O'Neill

8 By an agreement made on the 1st of May 1943 the residential flat consisting of all the rooms and passages on the ground floor of the premises were let to Mr. O'Neill for one year from the 1st of May 1943 at a yearly rent of £65. Mr. O'Neill covenanted that he would keep and maintain the interior of the flat in good order and repair, wear and tear excepted.

9 The defendant had bought the premises 26 Elgin Road in 1971 subject to the four tenancies. He has for some time been indignant about the low rents he was receiving particularly as he thought that three of the tenants were in prosperous circumstances and could afford to pay a lot more. About the 3rd of January 1978 he got a letter from the plaintiff, Miss Lynch in which she sent the rent less the rates although the legislation dealing with the effect of the decision to abolish rates on private residences had not become law because it had not been passed by the National Parliament. He decided that he would apply the strict letter of the law to all the tenants and went through the agreements carefully and decided that he would enforce each clause in them. On the 5th of January he gave notice that he would call to inspect the properties on the 7th of January and, when he arrived on that day, Mr. O'Neill was the only person whom he found in. He did not have a key to the main hall-door and he decided to break in. He forced open the hall-door and found the three letter boxes at the back of it. By a strange coincidence, he had brought a screw driver with him and he forced the letter boxes and made them unusable. He did not know that the previous owner had carried out the reconstruction on Mr. Thornhill's flat and he tried to enter it by force and, in the process, did considerable damage to the door and its surround. He removed the covering on the hall floor and threw it out on the steps. He then damaged the stud partition wall at the side and by some means (probably with the screw driver) made a hole in it. It is difficult to understand why he did this as he could not hope to remove the whole wall. He then went upstairs, found the chairs on the return landing and put them outside the door of the house. When he continued upstairs he found the hall door of Miss Whelan's flat in position and because he thought that consent had not been given to its installation he removed the hall door and left it standing at the landing. The result was that Miss Whelan's flat was without a hall door and was not self contained. When he had done the work which he thought was a removal of...