Termination of Lease
Notice to Quit Cases
Fleury v O’Reilly
High Court of Justice.
King’s Bench Division.
27 June 1905
[1906] 40 I.L.T.R 125
Palles, L.C.B., Madden and Kenny, JJ.
Palles, L.C.B.
We take Harvey v. Copeland as having decided that in determining a weekly tenancy there must be a week’s notice to quit, as distinguished from a reasonable notice, but the notice may be given on the 1st to quit on the 8th. Then, we have here a contract of tenancy subject to determination by a week’s notice, and we will follow Harvey v. Copeland. We therefore grant the motion for final judgment.
Sullivan v Sheehan
King’s Bench Division.
22 February 1916
[1916] 50 I.L.T.R 41
Cherry L.C.J., Madden, Boyd JJ.
Cherry, L.C.J., in giving judgment, said that the present case involved two questions of some importance. The appellant was the tenant of a house under a weekly tenancy. Notice to quit was duly served on Friday, Dec. 17, 1915, requiring her to give up possession on Friday, Dec. 24, 1915, and on the same Friday, Dec. 24, complainant demanded possession, and a summons for ejectment was issued on the same day. The justices held that such notice was sufficient, and the demand of possession was good, and made an order giving possession of the premises to the complainant. The first question involved was—Was the notice sufficient? As *41 to that point the decision of this Court in Fleury v. O’Reilly, 40 Ir. L. T. R. 125, was conclusive. In that case exactly the same notice as here had been given. The notice here was perfectly good. The second point was more serious. The notice expired on Dec. 24, and the defendant had the whole of that day to give up possession. The summons charges refusal to give up possession on the due termination of the tenancy. But the tenant never so refused. She was asked to give up possession before the tenancy expired. The summons was premature, as it had been issued at an earlier moment than it should have been, and therefore the order of the justices was wrong. The respondent must pay the costs of the appellant.
Madden and Boyd, JJ., concurred.
Wilkins v M’Ginity
4 November 1907
[1907] 41 I.L.T.R 204
Sir. S. Walker, Bart. L.C., FitzGibbon L.J., Holmes L.J.
Sir. S. Walker, Bart., L.C.
In this case the parties stipulated that the tenant should have an option of surrendering his lease at the end of two years from the commencement of the tenancy upon giving three months’ notice beforehand of his intention to do so. The question which we have to decide is whether or not the notice was served in time. It was argued that the tenant must be taken to have complied with the terms of the contract because he posted the notice at such a time that it ought, in any view of the case, to have reached the landlord three months before the end of the second year of the tenancy; but it was not within the contemplation of the parties that the post should be used as the medium for effecting service of the notice in question, and I think that Henthorn v. Fraser is an authority for holding that it is not enough merely to post a notice of this kind (see the judgment of Kay, L.J., at p. 36). As I am also of opinion that the term commenced on Nov. 1, I have now to consider whether a notice served on Aug. 1, to surrender possession on Nov. 1, was sufficient to create a surrender. In answering that question I shall assume that “month” in the agreement means calendar month; but, even if that be so, I think that the notice was served in time. There is no distinction in this respect between a notice to quit and a notice to surrender, and we have the authority of Sidebotham v. Holland, and Furlong’s Landlord and Tenant, as well as the English text books, for saying that a six months’ notice to quit, terminating on the anniversary of the day on which the term commenced, is good.
FitzGibbon, L.J.
I concur. Although I shall not attempt to decide this case upon the point as to the meaning of the word month, I wish to say, in regard to that question, that we are entitled to look at the nature and subject-matter of the agreement in order to construe its terms. The question is one of considerable practical importance, and, for my part, I think that there is enough in the agreement before us, taking into account its nature and subject-matter, to show that in it “month” means calendar month. As to the second point raised by counsel for the respondent, I am clearly of opinion that each year of the term began on Nov. 1 and ended on Oct 31, and so on de anno in annum during the continuance of the term. That brings me face to face with the question, what is a good notice to quit? because, in construing the document before us, no distinction can be drawn between a notice to quit and a notice of surrender. There are two forms of notice to quit, both equally good. A notice to quit terminating on the last day of a term is good; and I am also satisfied that, where a term ends on the last day of a month, notice to quit on the first day of the following month is good likewise, because it must be remembered that the moment when the demise ends is the first stroke of the clock at midnight on the last day of the month. Getting notice on the first of a month to go out on the first of a succeeding month—provided the requisite number of months intervene—gives the tenant the full period which the law requires, and to which his contract entitles him. As to the last branch of the argument of counsel for the respondent, I think that posting the notice was not a sufficient compliance with the contract, because it was not a question of binding the tenant, but of bringing his intention to the notice of the landlord. In such a case posting is not enough unless authorised by statute, and even then it is necessary to prove, as in cases under the Parliamentary Voters Act, that the letter or document was posted at such a time that it would, in the ordinary course of post, reach the hands of the person for whom it was destined within the time specified. In this case the sending of the notice by post was not authorised either by statute or by the contract, and there is a finding of fact that it did not reach the landlord till Aug. 1.
Holmes, L.J.
I concur. In the construction of ordinary legal instruments, such as that before us, month means lunar month. This is the rule at common law; and, although it has been abrogated as regards statutes, and altered by custom in the case of mercantile documents, it still holds good in other cases unless an intention that the word should bear another meaning can be inferred from the instrument in which it is used. In the agreement before us the evidence to that effect depends on the use of the term “half-yearly,” and is, in my opinion, scarcely strong enough to warrant us in reading month as calendar month. I do not, however, base my decision on this point, as I *205 entertain no doubt on the question that three calendar months’ notice of intention to surrender the premises on Nov. 1 was sufficient to determine the tenancy. This follows from the principle laid down in Furlong’s work on Landlord and Tenant, which has also the authority of the English text writers on that subject, and has recently been applied in Fleury v. O’Reilly to the analogous case of a weekly tenancy. I do not attach any importance to the use of the word “beforehand” in the agreement before us, it appears to me to be used merely as equivalent to “previous.”
Meath Board of Health v Reilly
4 June 1942
[1942] 76 I.L.T.R 124
Martin Maguire J.
Martin Maguire, J., giving judgment, expressed the opinion that the decision of the learned District Justice was right in law. He adopted de Moleyn’s Landowner’s Guide at page 230, in which was clearly set forth the power of agents with regard to serving Notices to Quit. It was not suggested for a moment that the rent collector had any powers of management over the property or that he was appointed in any other capacity than as a rent collector to the principal.
Mr. Gaynor’s authority was not limited, however, to the collection of rents, for at a meeting of the Board of Health on 8th November, 1938, a motion was passed authorizing him to institute and carry on legal proceedings. That was clearly an authorization to carry on proceedings and it would have been a very simple matter to include in the Motion power to serve Notices to Quit. It did not, however, include any such power. Mr. Ryan had conceded that serving a Notice to Quit was not instituting a proceeding. His Lordship referred to the decision in Palles, C.B., in Maguire v. Rogers, 27 Ir. L. T. R. 19. He held that there was no authority, express or implied, authorizing Mr. Gaynor to serve Notices to Quit.
Maguire v Rogers
23 January 1893
[1893] 27 I.L.T.R 19
Palles, C.B., Andrews J.
Palles, C.B.
The direction of the learned judge at the trial was right. The general proposition as to an agent’s authority to sign a notice to quit is correctly stated in Jones v. Phipps, L. R. 3 Q. B. 567. The letter gave express authority to the agent to serve a notice to quit on the tenant. In my construction, that letter contemplated that the notice should be signed by the agent and served accordingly. It clearly directs the agent to serve a notice. The notice itself must be in writing and signed by the principal or agent. Now, when a man directs his agent to serve a notice to quit on the tenant, the agent can sign in his own name and state that he signs on behalf of his principal. The other point has never been expressly decided, viz., that the authority in the agent to sign and serve the notice depends on whether the tenant has reason to believe that he has such authority. Now I think that that ground is the ratio decidendi of Jones v. Phipps, as distinguishing between the case of a general authority and a particular or special authority to sign such notice, In the case of a general authority the notice may be signed in the agent’s own name. A general authority means general notice to the tenants on the estate. But in the case of a special authority the law directs that as an essential to the validity of the notice the agent’s authority should be stated on the face of the notice itself—in other words, if the agent has his authority in fact he must state it. The notice in this case was a valid one.
Andrews, J., concurred.
M’Mullen v Tute and others
1 March 1877
[1877] 11 I.L.T.R 64
May C.J.
A civil bill ejectment was brought under the 72nd section of 23 & 24 Vic., c. 154, at the Sligo Quarter Sessions, October, 1876, to recover possession of the house and lands known as Finisklin, otherwise Gibralter. The defendant occupied the premises as tenant from year to year, the gale days being the 25th March and 29th September. The ejectment was brought on the alleged determination of the tenancy, the 29th of September, 1876, by a notice to quit. For the plaintiff, service of a stamped notice to quit, signed in the name of the agent, was proved; and a power of attorney, authorising the agent to serve notices to quit in his own name, was put in evidence. The agent’s name, signed to the notice to quit served, was not in the handwriting of the agent, but had been signed by a clerk in the office of the plaintiff’s attorney, who had done so by order of the agent. The notice to quit retained by the bailiff had been signed by the agent himself. The chairman gave a decree to possession, from which the present appeal was taken.
Malley, Q.C., for the appellant.—The notice to quit so signed was not valid, and could not determine the tenancy. The 58th section of 33 & 34 Vic., c. 46, declares that “No notice to quit shall be valid unless signed by the landlord or his agent lawfully authorised thereunto, nor unless such notice at the time of the service thereof was duly stamped.” The notice to quit which was stamped, and which was served, was the notice to quit which should have been signed by the landlord or lawfully authorised agent. The clerk who signed the notice was not the landlord’s agent thereunto lawfully authorised, and, as the agent of the agent, had no power to determine the tenancy, though acting by the agent’s authority, because delegatus non posse delegari. The words of the Act are clear, and, if any doubt existed as to their meaning, a construction should be put upon them in favour of the tenant.
Bird for the respondent.—There was no delegation of authority when the agent told the clerk to sign the notice to quit. The signature was entirely that of the agent, and the clerk was the mere instrument executing that act. If the agent had been rendered physically unable to write by sudden accident to his hand, it could not be contended that, because he got another person to write his name to a notice to quit, the notice to quit was bad, or that the signature was not that of the agent. On any other document requiring signature such a signing would be binding, for qui facit per alium facit per se. The 60th section, 14 & 15 Vic., c. 57, requires that all ejectment processes must be signed by the attorney, yet in practice, where the attorneys cause the names to be printed on ejectment processes, chairmen admit such printed names as the signature of the attorney within the meaning of the Act.
May, C. J., affirmed the decree.
Biggar v Pyers
Assizes.
1 July 1879
[1879] 13 I.L.T.R 127
Fitzgibbon L.J.
July, 1879
In this case, Mrs. Charlotte F. Biggar sought to recover from the defendant the possession of about ten acres of land on the expiration of a notice to quit. The plaintiff obtained a decree for possession in the court below, and from this decree an appeal was brought. On the hearing, at Armagh Assizes, it appeared that a notice to quit ending at May last had been served on the defendant, naming him as the tenant of the lands now sought to be recovered, and which were therein described as “that part of the lands of Drumiskin, containing about ten acres, and held by said Owen Pyers at the yearly rent of £10 11s. 6d.”
On receipt of this notice to quit the present defendant served a land claim, but failed at the land sessions, as he proceeded under the Ulster Custom, and was unable to prove that it prevailed on the estate.
The plaintiff then brought her ejectment on this notice to quit. The defendant objected to the notice to quit as invalid. He alleged that the lands now sought to be recovered formed, with other lands, one entire holding of sixteen acres; that he, the defendant, and one James Hearty were the tenants of this entire holding; and that the notice to quit had been directed to and served on the defendant alone. It was argued for the plaintiff that there were really two holdings of six acres and ten acres; that there had been a division of the holding of sixteen acres some seven years ago by the consent of Mr. M Courtney, the agent of the landlady, and that separate rents had then been fixed and had been taken down in the rent book; and that in any case the defendant, by treating the notice to quit as good and bringing his land claim on it, had ratified it and estopped himself from setting up any objection to its validity.
It appeared from the evidence of the defendant, and of the agent of the estate, that defendant’s father-in-law, the father of James Hearty, had owned the entire farm of sixteen acres, and died over 25 years ago. Since then the two portions of the farm had been occupied in severalty, but one entire rent had been paid, and receipts were always given for this rent “to the representatives of Edward Hearty, deceased,” and no change had been made in the rent books. Six or seven years ago disputes arose as to the shares of this rent to be paid by each occupier, and a survey was made and the rent apportioned. Plaintiff alleged that this was a division of the holding, but defendant alleged that it was only a matter between the two occupiers, but still only one receipt was given worded as before. One holding appeared in the landlord’s books, with this addition at foot: “Owen Pyers pays £10 1s. 6d.; James Hearty pays £6 0s. 0d.,” and four years after this arrangement a writ was issued by the now plaintiff against the now defendant, claiming one and a-half year’s rent of the entire holding, £24 odd, upon which Pyers paid this to the agent, with costs, and subsequently recovered from Hearty his proportion by civil bill.
Fitzgibbon, L.J., said he would not have held the plaintiff bound by the mere issuing of this writ, but the money had been paid under it, and the defendant had recovered the proportion from James Hearty as money paid for him. He did not consider the proceedings under the land claim estopped the defendant from objecting to the validity of the notice to quit.
McBirney & Co. v. Morris
[1942] IR 364
Supreme Court
SULLIVAN C.J. :
This is an appeal from an order of the High Court, dated the 5th April, 1940, adjudging that the plaintiffs do recover against the defendant the sum of £370 6s. 3d., being the amount indorsed on the summary summons less the sum of £19 13s. 9d. paid by the defendant in respect of income tax.
The amount indorsed on the summons is claimed against the defendant as administratrix of her husband, Michael Mofsovitz, who assumed the surname of Morris, and is alleged to be due for rent payable in respect of the premises, No. 13 Aston’s Quay in the City of Dublin. These premises were held by the late Michael Morris under a proposal in writing, made by him, and accepted by the plaintiffs, on the 3rd June, 1911, whereby he took the premises for a term of three years from the 1st July, 1911, at the yearly rent of £120 0s. 0d., payable quarterly by four equal quarterly payments of £30 0s. 0d. each. On the expiration of the term he continued in possession as tenant from year to year and was in possession up to the date of his death on the 23rd September, 1937, when the defendant went into occupation of the premises. On the 24th November, 1937, the defendant obtained a grant of letters of administration of the personal estate of her deceased husband. The last payment of rent by the deceased was for the quarter ending on the 30th June, 1936, and no rent had been paid by the defendant, although she continued in occupation of the premises.
From the affidavits filed in the action it appears that the plaintiffs held these premises, together with adjoining premises, from the Corporation of Dublin; that in the year 1935, they were tenants from year to year; that on the 23rd October, 1935, a notice to quit was served on them terminating their tenancy on the 5th May, 1936; and that on the 9th May, 1939, the Corporation caused a summary summons in ejectment to be issued against the plaintiffs and obtained judgment for possession on the 24th November, 1939. The claim indorsed on that summons was as follows:
“The plaintiffs are entitled to the possession of the house and premises, Nos. 12 and 13 Aston’s Quay, in the Parish of Saint Andrew, and City of Dublin, which were let by the plaintiffs to the defendants as tenants from year to year at the yearly rent of £270, which said tenancy was duly determined by notice to quit expiring on the 5th day of May, 1936. The plaintiffs claim possession and £810 for mesne profits.”
On the 21st November, 1939three days before the hearing of the summary summonsa meeting was arranged at the office of the plaintiffs’ solicitors, at which the plaintiffs, the Corporation, the defendant, and another party interested in the adjoining premises, were represented by their respective solicitors. At that meeting it was arranged that the plaintiffs should pay the Corporation the sum of £945 in respect of their occupation of Nos. 12 and 13 Aston’s Quay from the 5th May, 1936, to the 5th November, 1939, being for a period of three and a half years at the rate of £270 per annum. The amount indorsed on the summons as due for mesne profits was the sum of £810, but, since the issue of the summons, the plaintiffs had been in occupation for a further half year so that at the date of the meeting the amount due would have been £945. A cheque for this sum was handed by the plaintiffs’ solicitors to the solicitor for the Corporation and, accordingly, when the summons came to be heard before the High Court, the only order required by the Corporation, and obtained by them, was for possession of the premises and costs.
In the absence of evidence to the contrary, the sum of £945, paid by the plaintiffs to the Corporation, must be presumed to have been paid by the plaintiffs and to have been accepted by the Corporation in discharge of the claim for mesne profits as set out in the summons.
I am of opinion that the plaintiffs’ interest in the premises in question in the present action must be held to have terminated on the 5th May, 1936, being the date of the expiration of the notice to quit, served by the Corporation. The plaintiffs’ interest being thus terminated, it follows that the interest of the late Michael Morris under his tenancy from the plaintiffs also terminated on that date.
Accordingly the plaintiffs’ claim in its present form is unsustainable and the order of the High Court must be discharged and this appeal allowed.
The plaintiffs, however, should be given liberty, if so advised, to amend the indorsement of claim, and this action will stand adjourned for plenary hearing as if the proceedings had been commenced by plenary summons, but I am not to be taken as expressing any opinion as to what may be the result of such hearing.
MURNAGHAN J. :
I agree and have nothing to add.
MEREDITH J. :
I agree.
GEOGHEGAN J. :
I agree.
O’BYRNE J. :
I also agree.
Esmond v Price
[1875] 9 I.L.T.R 10
Thomas De Moleyns, Esq. Q.C.
December 31st, 1874
The Chairman.
In this case there are two points to be considered—first, is there any evidence to show that this tenancy originally commenced in March. I do not consider that the evidence of the two witnesses produced satisfactorily established this, so as to rebut the presumption as to its commencement, under the 6th section of the Landlord and Tenant (Ireland, Act, 1860. It is better, however, that I should decide the second point raised by Mr. Monioe— namely, assuming that the tenancy did, in fact, commence in March, whether, under such circumstances, an ejectment founded on a notice to quit served, under the 58th section of the Landlord and Tenant Act, 1870, for the last gale day of the calendar year, must be postponed until after the 25th of March following—giving in fact to the tenant so circumstanced a twelve months’ notice before dispossession. This must depend upon the construction to be put upon the 58th section, and I do not consider myself at liberty to go into the argument addressed to me as to the assumed policy of the Land Act, or its alleged object to prolong and not abridge tenancies. If speculation were to be indulged in this respect, it might perhaps be argued that the introduction of a certain period for the termination of the tenancy—the last gale day, when the crops would be probably realized,—was important for both landlord and tenant, in an Act not professing to be for the exclusive benefit of either party, but, according to its title, “to amend the law relating to the occupation and ownership of land in Ireland.”
The point raised is an important one, affecting a very large class of tenancies, and I should not be doing justice to the very able argument of Mr. Monroe if I were hastily to decide it. Having, however, considered the question beforehand, which has been the subject of recent discussion in The Irish Law Times,1 I think it is better I should not defer my judgment, so that, if my construction of the section is erroneous, it may be corrected at the ensuing assizes. In my opinion, the notice was a good and sufficient one, and the ejectment was not prematurely brought. I shall therefore make a decree for possession.
White v. Mitchell. White v. Davy
[1962] IR 348
Teevan J.
TEEVAN J. :”
25 October
In these two civil bill ejectment actions the plaintiff claimed possession of two residential flats in the house, no. 27 Lower Pembroke Street, Dublin, held by the defendants, in Mr. Mitchell’s case on a monthly tenancy and in Miss Davy’s case on a weekly tenancy. The learned Circuit Court Judge granted a decree for possession in each case and the defendants have appealed the decisions.
Common to both cases is the defence that possession is protected by the Rent Restrictions Act, 1960. Mr. Mitchell raises a further issue in his defence: he contests the validity of the notice to quit by which the plaintiff purported to terminate his tenancy. In the other case the notice to quit is not in dispute. As the defences under the Rent Restrictions Act were precisely similar, the cases were heard together.
The plaintiff purchased the house, no. 27 Lower Pembroke Street, in 1953. The tenancies the subject of these proceedings were then subsisting. The plaintiff does not know how, or when, they were created. All he was able to say in evidence was that when he took over the premises Mr. Mitchell was in possession of his flat as a monthly tenant. There is apparently no documentary evidence of the creation of the tenancy. The defendant, Mitchell, has habitually paid his rent monthly on the first day of each calendar month. That is as far as the plaintiff can go in evidence.
The tenant did not go into evidence. The evidence of the plaintiff that the rent has been habitually paid monthly on the first day of each calendar month was not rebutted, nor was it challenged in cross-examination.
The notice to quit is dated the 22nd August, 1961, was served on the 30th August, 1961, and purported to terminate the tenancy “on the 1st day of October next ensuing . . .”No alternative date is given. The well-established formula for a self-adjusting terminal by reference to the extent of the tenancy period is omitted. This is usually inserted as alternative to a specified terminal date (and is called for convenience of reference the “alternative clause”) but it should be remembered that it is not necessary to lay any specified date: the clause I refer to would, standing alone, be sufficient to put an end to such tenancies.
In that state of the evidence Mr. Breathnach for the defendant contended that as the alternative clause is not incorporated, the notice to quit, confined as it is to a single date for termination of the tenancy, is bad, on the ground that there was no evidence showing when the tenancy had commenced. He relied, in support, upon Colfix (Dublin) Ltd.v. Hendron Bros. (Dublin) Ltd. (1).
It should be clear from the report that Colfix (Dublin) Ltd.v. Hendron Bros. (Dublin) Ltd. (1) did not lay down the proposition submitted in the argument before me”that when the date of the commencement of a tenancy of periodically self-renewing terms is not known a notice to quit laying a single date for termination of the tenancy is ipso facto bad. As this is not the first case in which the like argument has been presented, I can only conclude that a misconception of what was decided in that case is current.
The case was, needless to say, a decision of fact. The position at the end of the evidence was one of doubt as to when the tenancy commenced”and even indeed as to the nature of the tenancy. The tenancy may have commenced on any day of the month. The evidence as to this is not summarised in the statement of facts, but the judgment of Mr. Justice Maguire discloses that such was the position:”Evidence of the commencement of the tenancy is vague in the extreme. Mr. Thompson . . . made the letting some timein April . . . He has refreshed his memory by reference to certain entries in the firm’s books made by a Miss Hill at the end of May, 1933. He was not present when these entries were made. Miss Hill was not examined and the books were not produced. The evidence regarding the commencement of the tenancy, therefore, remains vague. Mr. Thompson thought it was a tenancy at will. But it now appears that it probably was a monthly tenancy. The rent was paid monthly, but irregularly. The entire difficulty in this ease centres round the commencement of the tenancy . . . The tenancy may have commenced some time in April . . .” the emphasis is mine. The notice to quit specified the first day of a calendar month, without any alternative for termination of the tenancy.
I cannot understand why the clear statement of the factual state of the ease at the end of the evidence, which I have quoted from the judgment of Mr. Justice Maguire, can be misunderstood. True, the statement of fact reveals evidence favouring treatment of the first days of calendar months as rent days but that is obviously only part of the evidence and equally obviously failed, in the judgment of the learned Judge, to repel the defence, or dissipate the ambiguity.
The headnote very briefly, but very precisely, summarises the net result: “Where the commencement and nature of a tenancy is uncertain, a notice to quit . . . requiring [the tenant] to quit . . . on a specified date, with no alternative date given, is bad” (the emphasis is mine).
Mr. Breathnach said, correctly, that the date when this tenancy commenced is unknown to the plaintiff and no evidence of such date is before the Court. He failed to answer, or even to consider as of any importance, the question: why should the date of commencement of a tenancy of recurring terms, such as a tenancy from month to month, be of importance to the validity of a notice to quit? The importance of such a fact is, of course, to fix the recurrence date of each month (or other period) of the tenancy. The question is: on what day of the month, or week, or other tenancy period, does the periodic tenancy recur? That is all that is requisite in this context. If the date of commencement of the tenancy is not ascertainable, the periodical recurrences may be fixed by other evidence, e.g., by the consistent recognition of a specific gale day. The gale day may indeed be prima facieevidence of the day of the month on which the tenancy commenced. “A receipt for rent up to a particular day, isprima facie evidence of the commencement of the tenancy at that day””per Lord Ellenborough in Castleton and Othersv. Samuel (1).
Mr. Breathnach was, it is hardly necessary to say, correct in saying that the date specified on a notice to quit is notprima facie evidence: the mere assertions, or stipulations, of the notice do not shift the onus to the opposite party. His argument, however, went the length of suggesting, or it bore the inference, that some higher degree of proof rested on a plaintiff in an ejectment action than in other forms of action.
He seems to think that the date of commencement of a tenancy must be established by positive direct evidence. In this he errs. Like any other basic fact in any action it, or rather, as I have pointed out, the day of recurrence in periodic tenancies, must be proved by the best available evidence. It may be proved by any evidence which establishes it, even inferentially, on the balance of probabilities.
In this case there was evidence, which, I repeat, remained unchallenged, of the consistent and regular recognition by both landlord and tenant of the first day of each calendar month as the gale day. That is prima facie evidence that the tenancy commenced on the first day of some calendar month; that is sufficient. That being so a notice to quit bringing the tenancy to an end on the first day of some calendar month is valid” i.e., on a day which is a recurrence of the commencement of the tenancy: see Sidebotham v. Holland, (1). It may not be amiss to quote a sentence from the judgment of Lindley L.J., (at p. 383), although in a different context:””The validity of a notice to quit ought not to turn on the splitting of a straw.”
The notice to quit in Mr. Mitchell’s case is supported by the evidence and is valid.
Nevertheless, it is difficult to understand why parties to tenancies of this kind so frequently incur the risk of invalidity in their notices to quit by tying themselves to one specific date”why they persistently omit the useful comprehensive alternative, particularly, if I may emphasise the point by repetition, when it is not essential to lay any particular date for quitting: this may be done descriptively by reference to the ending of a period of tenancy.
The second issue is common to both cases. Both tenancies are controlled by the Rent Restrictions Act, 1960, and both tenants are entitled to protected possession under section 29. The landlord, however, claims the exception provided by para. (h) of sub-s. 1 of the section””the dwelling is reasonably required for the purpose of the execution of the duties, powers or requirements of . . . a local authority . . .”
Following a complaint by a tenant in the house to the Dangerous Buildings Department of the Corporation of Dublin, the Corporation, after inspection of the premises, required the plaintiff to “take down, secure or repair” the flank wall of the house, on the ground that it is in a dangerous state and threatens the public safety. The plaintiff consulted his architect, Mr. John Costello, with a view to compliance with the requirements of the Corporation.
In Mr. Costello’s opinion the wall is coming adrift from the house and is in an advanced state of decay. Proper repair and security can be achieved only by demolition and reconstruction. It will be necessary to have the house vacant for the proper and safe performance of this work.
The tenants do not contest that it is necessary to secure the wall. They say that this can be done by insertion of suitable tie-bars. They are supported in this by the evidence of Mr. Cantwell, architect. Mr. Costello agrees that it would be possible to affix tie-bars, and that several old houses in the city are thus secured, but he does not agree that it would be effective in this case, save as a temporary palliative. The constituent materials of the wall are too decayed. He regards tie-bars as an unsuitable remedy. Eventually the more drastic work would have to be done. It is agreed that the insertion of tie-bars is a much simpler and less expensive operation and could be carried out without disturbing the possession of the tenants. Demolition and reconstruction of the wall would cost at least £1,000: the insertion of tie-bars something of the order of £100. This is agreed.
A further controversy exists between the parties’ advisers. Mr. Costello insists that the house must be vacated if the wall is to be taken down and rebuilt. Mr. Cantwell says that by erecting a screen inside the flank wall, the work could be carried out without vacation. It is agreed that such a device is frequently used but Mr. Costello again disapproves of it in this case and advises his client against it”mainly because the stairway is immediately flanked by the wall to be taken down. The provision and ultimate removal of such a screen would add some £200 to the cost of the work. Mr. Costello further says that it will be difficult to get a builder to undertake the work in this manner, in view of the additional risks to be incurred.
Mr. Breathnach contends that in view of (a) the possibility of meeting the Corporation’s requirements by the simpler expediency of tie-bars, or (b) if the more expensive work is to be done, the possibility of constructing a screen to enable occupation to continue while work is in progress, it ought not to be held that the “dwelling is reasonably required” for the purposes stated in paragraph (h).
I reject both heads of this contention. It would be most unreasonable to require a landlord so placed to accept the opinion of the tenants’ architect in place of his own; to forego work advised by his own architect in favour of a scheme which the latter disapproves of and condemns. As to the second of these two contentions, I think it is very unreasonable that the landlord should be required to incur the very substantial additional trouble, risk and expense which would be involved in the erection, maintenance, and, later, removal of a temporary screen wall while the work of demolition and reconstruction was being done.
I appreciate the hardship on the tenants in having to give up possession of comfortable flats in a convenient central position and which they have enjoyed for years. Nevertheless, they are trying to place too heavy a burden on their landlord in expecting him to lay out a substantial capital sum, additional to the normal cost of reconstruction, which would be irrecoverable by him and expendable solely to their benefit. The landlord would derive no benefit whatever from the proposed screening arrangement, and, indeed, might incur expense over and above that directly attributable to the provision of the screen wall.
From cross-examination by their counsel I gather that the tenants fear that the landlord is taking advantage of the situation; that if he gets vacant possession he will, instead of merely making good the defective wall, put the house to some other use, or sell it with the advantage of vacant possession, or even demolish the whole house and re-develop the site. The plaintiff disclaims these intentions and I accept that he seeks possession in good faith”not that there is any obligation on him to re-let as before.
I accordingly disallow the appeals and affirm the decrees for possession with costs, in both Courts.
Hynes v Cox
[1979] 113 I.L.T.R 117
Costello J.
Costello J.:
This case is distinguishable on its facts from the Phoenix Picture Palace Ltd. v. Capitol and Allied Theatres Ltd. (supra). There, the agreement for the term of three years provided for a weekly rent. Here, however, the agreement for the term of three years provides for a yearly rent, payable by weekly instalments. Accordingly, when the tenants held over after the expiration of the term, they did so as tenants from year to year. The Notice to Quit served, being based on an alleged weekly tenancy was ineffective to terminate the plaintiff’s interest. I will treat the motion as the hearing of the action and grant the injunction sought.
Lynch v. Dolan
[1973] IR 320
Pringle J.
The plaintiffs’ claim in the civil bill dated the 5th January, 1971, is for the recovery of possession of the garage premises known as No. 78 Baggot Lane, Dublin, the property of the plaintiffs. In his defence the defendant pleaded that he is in possession of the premises as tenant to the plaintiffs from week to week at the weekly rent of £2.00; that his tenancy has never been determined, and that he is entitled to claim a new tenancy under the Landlord and Tenant Act, 1931. In regard to this last plea, as the defendant did not serve a notice of intention to claim relief within the required time and, as an application to extend the time for serving same was refused, no question of the defendant being entitled to a new tenancy now arises.
It appears that the premises in question were let to Mr. Edward Kavanagh by the plaintiffs in the month of October, 1958. The letting was a weekly tenancy at the weekly rent of £1. The letting was not in writing, but it appears to be agreed that the user of the premises was to be confined to the storage of motor cars and that it did not include any part of the garden. Neither Colonel Lynch, who made the letting, nor Mr. Kavanagh, to whom it was made, has any recollection of the date of the commencement of the tenancy; but Colonel Lynch said that the rent was paid in advance on each Friday. Mr. Kavanagh, on the other hand, said that there was no particular date for the payment of rent and that in fact it was usually collected once a month by Mrs. Lynch who generally came on a Monday. I accept Colonel Lynch’s evidence that the rent was payable in advance on Friday. An effort was made by Colonel Lynch to establish from his books the actual date of the commencement of the tenancy but, apart from the unsatisfactory nature of the entries in the books, Colonel Lynch was only entitled to refer to them to refresh his memory and he admitted that, even after referring to his books, he had no recollection of the date or day of the week on which the tenancy commenced, and I am satisfied that I must deal with the case on the basis that there is no evidence as to the day of the week upon which the tenancy commenced.
The rent was subsequently increased to £2 per week. Colonel Lynch says that this was because of an increase in the rates, but Mr. Kavanagh and the defendant, who used to work in the premises as Mr. Kavanagh’s foreman, say that this was because Mr. Kavanagh was given portion of the garden in which to store paint and other articles. Colonel Lynch swore that he never agreed to portion of the garden being included in the tenancy and that, when Mr. Kavanagh asked for permission to store paint in the garden, he refused to allow him to do so. He also said that Mr. Kavanagh did attempt to use the garden but cleared it when he objected. I am satisfied that no part of the garden was ever included in the tenancy.
In the year 1968 Mr. Kavanagh wanted to leave and his solicitor applied to the landlords for their consent to the assignment of the premises to the defendant; this was apparently done under the erroneous impression that such consent was necessary. The application was refused by the landlords who have never recognized the defendant as a tenant and have refused to accept rent from him. Mr. Kavanagh executed an assignment in writing dated the 16th August, 1968, of his tenancy to the defendant. No mention of this assignment was made in the correspondence which ensued between the solicitors for the Parties and the landlords had no knowledge that any such assignment existed until it was produced at the hearing of this case in the Circuit Court. It is to be noted that the assignment, which included other premises, described the premises in question simply as “78 Lower Baggot Lane in the City of Dublin held upon a verbal tenancy at a weekly rent of two pounds.” There is no mention of any part of the garden being included.
The defendant has been in occupation of the premises since the year 1968 and there can be no doubt in my opinion that he became the tenant since the date of the assignment, although never recognized as such by the landlords. Correspondence and conversations took place between the parties and their solicitors since the defendant took over. He was trying to get the landlords to give him a lease of the premises, including the garden, and he offered an increase of rent to £6.50 but the landlords were not willing to grant him a lease or to include the garden and no agreement was ever reached between them.
Eventually the plaintiffs served a notice to quit dated the 28th April, 1970, on the defendant. The notice to quit was served on Wednesday, 6th May, 1970, and it was in the following form:”
“NOTICE TO QUIT
Take notice that I hereby require you to quit and deliver up to me or my lawful agent on the 15th day of May, 1970, the quiet and peaceful possession of ALL THAT the garage premises known as Number 78 Baggot Lane in the City of Dublin, any tenancy you may have in the said premises being hereby determined.
Dated this 28th day of April, 1970.
Signed:”Thomas Lynch
Anna Lynch”
The defendant’s contention is that this notice to quit was not effective to determine his tenancy in the premises. Mr. Barron, in his very able argument, contended in the first place that it was not sufficiently clear and unambiguous inasmuch as it did not specify what tenancy was being determined and, in particular, whether it was the tenancy formerly held by Mr. Kavanagh or some other tenancy created after he left. Mr. Barron says that the words”any tenancy you may have in the said premises” create such an ambiguity as to render the notice to quit bad. He relied on the cases of Allam & Co. Ltd. v. Europa Poster Services Ltd. 21; P. Phipps & Co. Ltd. v. Rogers 22; Hankey v.Clavering 23; and Dagger v. Shepherd. 24
In Allam’s Case 21 Buckley J. quotes the following passage from the judgment of Evershed L.J. in Addis v.Burrows 25:” “Nothing that I say should be taken as qualifying in any way the general duty of landlords to give notices in terms which are sufficiently clear and unambiguous either by stating the right date or by making it ascertainable by the tenant by reference to his tenancy agreement, with the terms of which he must be taken to be familiar.” Mr. Justice Buckley then goes on to say26:””The reference there to the right date is a reference to the date from which the notice to quit was intended to operate. By analogous reasoning a notice given by or on behalf of one party to a contract intending to bring that contract to an end . . . must, I think, be sufficiently clear and unambiguous to convey to the party to whom it is given precisely how it is intended to operate, and when it is intended to operate.” In P. Phipps & Co. Ltd. v. Rogers 22,at p. 49 of the report of the decision in the King’s Bench Division of the High Court, Lush J. said:” “A notice to quit, though it need not actually name the date, must indicate with reasonable clearness when possession will be demanded or given, so that the other party may know what is required of him, and the time must be the proper time as provided by the lease.” I think these cases make it clear that a notice to quit must be clear and unambiguous as to the premises and as to the date upon which possession is being demanded. In this case that date is quite clear; it is the 15th May, 1970. No authority was cited for the proposition that a notice to quit must specify the particular tenancy which is being determined, or even the nature of that tenancy. In my opinion the notice to quit is sufficiently clear and unambiguous and the defence on this ground fails.
The second point raised by Mr. Barron is that the notice to quit is not effective to determine the defendant’s tenancy because the plaintiffs have not established that a week’s notice had been given expiring at the end of a week of the tenancy. The notice to quit was served on Wednesday, the 6th May, 1970, for Friday, the 15th May and this meant, according to Mr. Barron’s contention, that unless the tenancy commenced on a Wednesday, Thursday or Friday (which was not proved) the notice would be bad. Mr. Barron said that if the notice had been in the alternative form, such as “on 15th day of May, 1970, or at the end of the week of your tenancy which shall expire next after seven days after service hereof”, it would have been valid. Mr. O’Hanlon’s answer to Mr. Barron’s argument is that seven days notice is sufficient and that it is not necessary that the notice should expire at the end of a week of the tenancy. He further contended that, as the gale day was proved to have been a Friday, a seven-days notice expiring on a Friday was a valid notice to quit.
Harvey v. Copeland 27 is the case which appears to have been generally accepted as establishing that a week’s notice to quit expiring on any day of the week is sufficient to determine a weekly tenancy; but Mr. Barron says that, on a close examination of the judgments in that case, it is not a decision to that effect. In that case the date of the commencement of the weekly tenancy was Thursday, the 7th May, 1891, and the rent was payable on every Thursday. A notice to quit was served on Thursday, the 5th November, 1891, and it required the tenant to deliver up possession”on or before the 13th November, 1891″ which was a Friday. The argument on behalf of the tenant (who was the appellant) was that the notice to quit, in order to be effective must be for a gale day. On behalf of the landlord it was contended that the notice, being a notice to quit on or before the 13th November, was in fact a notice to quit on the 12th and at latest on the 13th, and it was further contended that a week’s notice was not necessary to determine a weekly tenancy and that a reasonable notice was sufficient. The court by a majority, consisting of Johnson and O’Brien JJ., held that the notice to quit was good; while Gibson J. held that it was bad.
Mr. Justice Johnson held that a reasonable notice is sufficient to determine a weekly tenancy and that a week’s notice is reasonable and the fact that eight day’s notice had been given did not vitiate the notice. He appears to have held that, provided seven days’ notice is given, it need not expire on any particular day.
Mr. Justice O’Brien, although holding that the notice in question was good, said that he did not agree with the reasoning of Johnson J. that reasonable notice was sufficient. He held that seven days’ notice is required and the fact that eight days were given meant that the notice was not only sufficient but more than sufficient. He said at p. 422 of the report:” “The tenant entered on a Thursday, and he is required to leave on or before the following Friday. He is entitled in law to hold during the whole of the Thursday up to the last minute, and here the notice is to quit on the next day or before it . . . I am not aware that in a tenancy of this kind it ever has been held that a notice beginning on the right day, and ending on a wrong day, if it be a wrong one, but on a day beyond, and not short of the time when the period of tenancy would expire ” for that is the point ” has been decided to be bad; in other words, that too long a notice, instead of too short a one, is not sufficient, when the necessary effect is that it cannot put in the tenant for a new payment of rent.”It appears to me that the learned judge was of the opinion that, provided the notice covered the period of one week of the tenancy, it is not invalidated because it gives a date beyond this week for the tenant to quit or, in other words, it need not expire at the end of a week of the tenancy.
Mr. Justice Gibson on the other hand, while agreeing with O’Brien J. that a week’s notice is necessary, held, with some doubt, that the week’s notice must expire on the same day as the tenancy commenced which in that case was a Thursday; and that, as the notice in question required the tenant to quit on or before a Friday, the notice was bad.
I think that Harvey v. Copeland 28 is an authority for the proposition that a week’s notice is necessary to determine a weekly tenancy (see Fleury v. O’Reilly 29, but that it is not an authority that the notice to quit may expire on any day of the week, nor that it must expire on the same day of the week as the commencement of the tenancy. Therefore, I think that Mr. Barron is correct in his submission that the effect of this decision was misinterpreted by Wright J. in Skelly v. Thompson 30 where he said:”” Harvey v. Copeland 31 is a direct authority for the proposition that reasonable notice is sufficient to terminate a weekly tenancy. A week’s notice has always been held reasonable and sufficient, and the question I have now to decide is whether or not it must determine upon the gale day of the tenancy. I hold that the notice, if it is sufficient in other respects, may be given for any day of the week, and, accordingly, I affirm the decree for possession.”
In Queen’s Club Gardens Estates Ltd. v. Bignell 32 the plaintiffs let certain premises to the defendant under a written agreement dated Saturday, the 13th January, 1912, for the term of a weekly tenancy from that date. A notice to quit was served on Friday, 6th October, 1922, in the following form:” “The Estate Company hereby give you the requisite week’s notice for the termination of your tenancy one week from Monday next, on or before which date they will require vacant possession.” At p. 122 of the report, after referring to the notice to quit, Lush J. said:” “The notice to quit, therefore, did not expire at the end of a current week, that is to say upon a Saturday, but a week from the next Monday.” In regard to the length of a notice to quit to determine a weekly tenancy, he said at p. 123:” “Several cases have decided that a reasonable notice is all that is necessary. I cannot bring myself to accept that view.” At p. 124 he said:” “I think that the law is that in the case of a weekly tenancy a week’s notice to quit is that which should be given.” He then went on to deal with the second point, whether a notice to quit must expire at the end of a current week or may be made to expire on any day the landlord or tenant chooses to fix. At p. 125 he said:” “A weekly tenancy is a tenancy by the week, just as a quarterly tenancy is a tenancy by the quarter. If the week’s notice to quit is not given so as to expire at the end of a particular week, but at some other time, then another week begins before the notice expires, and this must mean that another complete week has begun. The tenancy being by the week, I do not see how it is possible for either party to give a notice to quit to expire during the currency of a week. When a fresh week begins the tenancy continues for another week, just as, in the case of a quarterly tenancy, when a fresh quarter begins, the tenancy continues for another quarter.” The learned judge then considered a number of decided cases, including Harvey v. Copeland 33 and Skelly v. Thompson. 34 In regard to the former he said at p. 127 of the report:” “As to the question with which we are now dealing”namely, the date of expiration of the notice”Gibson J. took the view, which, as I have said, is in my opinion the right view, that the tenancy can only be determined by a notice expiring at the end of the term. I need not read the learned judge’s judgment. As to the other two learned judges, I desire to say that I am not sure that they took the view which Swift J. [in Simmons v. Crossley 35] thought they took. It will be observed that in that case the notice to quit was for Friday, one day after Thursday on which the period expired.” In regard to Skelly v. Thompson 34, after referring to the statement of Wright J. that a notice to quit may be given for any day of the week, Lush J. at p. 129 said:””Although the learned judge expressed that view I think he did so not as having come to it independently, but rather on the authority of Harvey v. Copeland 33, and it would be wrong to say that that case so decided.” Finally, at p. 131 Lush J. said:” “For these reasons I think that the notice to quit which was given in the present case is bad. It was not a notice to quit which was to expire at the end of a week.”
Mr. Justice Salter agreed with the judgment of Lush J. In reference to Harvey v. Copeland 33, Salter J. said at p. 136:” “One of the three learned judges in that case, Gibson J., expressed a view which I respectfully think is the right view. As to the other two judges, Johnson and O’Brien JJ., it seems to me that not only did they not hold that a notice to determine a weekly tenancy can be good if it expires during the currency of a weekly period, but on the contrary they assumed that it should expire at the end of a period, and they read the notice to quit which was given in that particular case in a way which enabled them to reconcile it with the rule.” Mr. Justice Salter then went on to say that he did not agree with the decision of Wright J. in Skelly v. Thompson 36 in so far as it laid down that a notice to determine a monthly tenancy can be good if it is made to expire during the currency of the month; the learned judge should, of course, have referred to a weekly tenancy and not to a monthly tenancy.
While I agree with Mr. O’Hanlon that English cases are not of very great assistance as the English law of landlord and tenant is based on tenure whereas our law is based on contract, I must say that I am impressed with the reasoning of the judgments in Bignell’s Case 37 and I am inclined to the view (notwithstanding the decision in Skellyv. Thompson 36 and the view of O’Byrne J. noted at 60 I.L.T. & S.J. 227) that a week’s notice to quit expiring on any day of the week is not sufficient; but, in my opinion, it is not necessary for me to so decide as my view is that the notice to quit in this case which gave more than seven days’ notice, and which expired on a gale day (a Friday) and so at the end of a week of the tenancy, was sufficient to determine the tenancy. I do not consider that it is necessary that proof must be given that the notice to quit expired on the same day of the week as the commencement of the tenancy and certainly not where, as in this case, the gale day is proved.
In my opinion, a notice to quit which is given seven days or more before a gale day and which expires on a gale day, as was the case here, is a good notice to quit to determine a weekly tenancy, as the tenancy is determined at the end of a week of the tenancy and this is sufficient. It follows that the decision of the Circuit Court judge, granting a decree for possession to the plaintiffs, must be affirmed.
Colfix (Dublin) Ltd. v. Hendron Bros. (Dublin) Ltd.
[1948] IR 120
Maguire J.
This is most unfortunate litigation between two highly respectable firms in this city. I have to decide whether or not the action can succeed.
The notice to quit demands possession on the 1st June, 1947. It is a notice to quit on that date and no alternative date is given; it is, therefore, either good for that date or it is entirely bad.
Evidence of the commencement of the tenancy is vague in the extreme. Mr. Thompson, endeavouring to cast his memory back to the events at the time of the commencement of the tenancy, cannot remember clearly what happened. Mr. Thompson made the letting some time in April, 1933. Some time in May, 1933, Hendron Brothers entered into possession. He has refreshed his memory by reference to certain entries in the firm’s books made by a Miss Hill at the end of May, 1933. He was not present when these entries were made. Miss Hill was not examined and the books were not produced. The evidence regarding the commencement of the tenancy, therefore, remains vague. Mr. Thompson thought it was a tenancy at will. But it now appears that it probably was a monthly tenancy. The rent was paid monthly, but irregularly. The entire difficulty in this case centres round the commencement of the tenancy. Mr. Thompson says the entries in the books were made some weeks after the conversation regarding the commencement of the tenancy. I am, therefore, unable to hold that the notice to quit is good. The tenancy may have commenced some time in April, 1933. I do not even know must hold that the notice to quit is bad. I will reverse the order of the Circuit Court Judge granting a decree for possession; I will affirm his order for the payment out of Court of the amount of the rent due and will give Hendron Brothers, Limited the costs of this appeal. As this money could have been withdrawn at any time, I will limit the amount of the costs in respect of the withdrawal to the costs incurred up to the date when the money could have been first withdrawn from Court.
O’Neill v Naughten
[1876] 10 I.L.T.R 9
Theobald Purcell Esq. Q.C.
Ejectment on the title for a house and garden situated at Rathina. The civil bill ejectment stated that the lands were held by the defendant as tenant under a “contract of tenancy from year to year commencing on the 25th March, 1871.” On the hearing at the Quarter Sessions for the county of Limerick (Newcastle Division), it appeared that a notice to quit, dated 21st September, 1874, had been served on the defendant on the 22nd September, 1874, and was as follows:—“Notice to quit, to deliver up on 25th March, 1875, possession of a house and garden in Rathina, provided your tenancy originally commenced at that time of the year, and if otherwise then that you quit and deliver up the premises at the end of the year of your tenancy, which shall expire next after the end of the half year from the time of your being served with this notice.”
Mr. C. M’Cartie, attorney for the plaintiff, relied on Lord Ashtown v. Larke, 6 Ir. L. T. R. 140, as establishing that an alternative notice to quit is good, and so that this notice was, therefore, good for Sept., 1875.
Mr. M. Leahy, attorney for the defendant, contra, relied on Lord Fitzwilliam v. Dillon, 9 Ir. L. T. R. 106, as establishing that the notice to quit in September, served six months prior to September, was insufficient to terminate the tenancy in September.
Mr. C. M’Cartie, in reply.—That case applies only to tenancies created before the Landlord and Tenant Act, 1870.
The Chairman
In my opinion, in this case the alternative notice to quit is good, and the service of it sufficient to terminate the tenancy. Whether Lord Fitzwilliam v. Dillon does, or does not apply to tenancies created subsequently to the Landlord and Tenant Act, 1870, this case comes within the principle of that decision, as the notice to quit was given for the first gale-day of the tenancy, and has been served more than six months before the last gale-day of the current year; and the ejectment was not brought until after its expiration.
Hamill v Toomey
Circuit Cases.
1 July 1900
[1900] 34 I.L.T.R 163
Palles C.B.
Palles, C.B.
I will not hold that three persons who are tenants in common can put an end to a tenancy created by them by a notice to quit signed by one of them. It is not necessary in this case to decide that point, or whether the notice by one puts an end to the interest in an undivided third, for the parties themselves have set out in the agreement the method by which this tenancy is to be determined. The notice to quit must be signed by either party to the agreement. In the case of the lessors that clearly means that all the lessors must sign it, as they three constitute the first party to the agreement. I reverse this decree and dismiss.
Raymond V. Judd v Samuel Cochrane
Circuit Court.
[1926] 60 I.L.T.R 152
Judge Pigot
An agreement made between John M”Dermott, 2 Burgh Quay, Dublin, hereinafter called the landlord, and Samuel Cochrane, 37 Parliament Street, hereinafter called the tenant, whereby the landlord agrees to let and the tenant agrees to take for a term of four years from the 1st April, 1918, the shop known as 31 Mary Street, Dublin, at a yearly rent of one hundred and forty pounds sterling, including all rates and taxes, and to be payable in weekly equal payments of £2 14s. each on the Monday of each, and every week in each year. The first payment to be made on the signing hereof. The said tenant hereby agrees to be bound by the usual covenants between landlord and tenant, and further undertakes to return the said shop at the end of the tenancy in the same good, tenantable order, repair and condition as they now are, reasonable allowance being made for ordinary wear and tear. The agreement, containing other usual covenants, including should the said rent be due and unpaid for the space of 21 days after falling due, the said land lord shall be at liberty to re-enter and take possession, and thereupon this tenancy shall cease and be at an end.
The landlord, wanting to create a new tenancy at the end of the four years’ lease, served a “notice to quit” on the tenant on September 30, 1925, in the following manner:—
Served copy of within notice on Samuel Cochrane by posting copy thereof on door of shop at 31 Mary Street, Dublin, the shop being closed up at the time, and by further leaving another copy of said notice in the letter-box of said Samuel Cochrane in the door of said shop, both on Wednesday, 30th day of September, 1925.
(Signed) Henry Mandeville.
Hungerford, for landlord.—If personal service cannot be effected service of the notice on the wife, or on the child or servant of the tenant of the age of sixteen, or upwards, at the tenant’s usual abode on or off the lands, will be good, although the notice may not have been in fact delivered to him. The presumption in such a case is that it did reach the tenant himself; as the question is not whether the wife, child or servant performed his or her duty in delivering it to the master, but whether the person so served was to be considered as the agent of the master to receive the notice, and whose duty it was to deliver it to him. This principle has been at length clearly established by the highest authority. In the case of Alford v. Vickery, Carrington and Marsh man’s Reports, 1842, p. 280, it was held that a notice to quit which was served by being placed under the door was sufficiently served.
Black, for tenant, cited Boross and others v. Lucas and others, 5 Espinasse, p. 153. The mere leaving of a notice to quit at the tenant’s house without further proof of its being delivered to a servant, and explained, or that it came to the tenant’s hands, is not sufficient to support an ejectment. Woodfall’s Landlord and Tenant, p. 450. Merely leaving the notice at the tenant’s house without any explanation and without proof that the person to whom it was delivered was the tenant’s wife or servant, or that it ever came to his hands, is not sufficient. Putting the notice under the door of the tenant’s house, or any other mode of service, has been said to be sufficient if it be shown that the notice came to the tenant’s hands before the commencement of the six months.
Judge Pigot
This was a lock-up shop. The notice was served on a half-holiday when the shop was closed. Notice was served by putting one notice in the letter-box and by putting another on the door. There has been nothing to show that the tenant or his agent got or saw the notice. I must hold that the notice to quit in this case is not sufficient.
Bernard Lyons v Hubert Johnston
[1944] 78 I.L.T.R 19
Judge Sealy
January 12, 1944
Judge Sealy:
Payment of rent after a notice to quit has expired is only evidence for a judge or jury that the landlord and tenant had mutually agreed that the notice should not operate and had been withdrawn. Payment of rent is not conclusive evidence that there was an agreement for the withdrawal of notice to quit, and whether the rent was paid in this case or was not paid, there was no mutual agreement that the notice to quit should not operate. The plaintiff had not the least intention of withdrawing the notice, and even if rent were inadvertently accepted, the tenant is not entitled to take advantage of any such inadvertency.
The plaintiff is entitled to a decree for possession.
Pile v Kent
Supreme Court
[1930] 64 I.L.T.R 17
Kennedy C.J., FitzGibbon, Murnaghan JJ.
Nov. 28, Dec. 2, 1929
Kennedy, C.J., giving judgment, said that in his opinion the appeal must be refused. The notice was not made invalid by having attached to it any offer of a new tenancy. It was a proper notice to quit, together with an offer of a new tenancy at a much larger rent, to be given on the determination of the old tenancy. There was first a clear and unequivocal notice to quit, and, secondly, a clear and unequivocal offer of a new tenancy, to be given on the determination of the old tenancy.
The question arose: “Was the new tenancy accepted?” In his Lordship’s opinion there was no evidence that it was accepted. “Was the notice to quit waived before it became operative?” or “Did something subsequent to it annul it or set up again the old tenancy?” The Court had not before it anything in the nature of a waiver of the notice. After the determination of the tenancy possession was demanded, and the tenant said that the notice was invalid. Nothing further happened till another notice was served two or three months later, and simultaneously there was a demand made for a quarter’s rent at the old rate. The learned Trial Judge found that that notice was sent out in error. The appellant sent in response to that demand a cheque for the rent at the old rate, which was received in the agent’s office, and subsequently at his house. He indorsed this cheque in a bundle of other cheques. He never cashed or lodged it, but returned it to the appellant. There was no evidence in all that to show that there was any new agreement to re-establish the old tenancy. His Lordship could find no evidence whatever of any concurrent intention in the two parties to re-establish the old tenancy or to revoke the notice to quit. In his Lordship’s opinion the appeal should be dismissed on the grounds that:—
(1) The notice to quit was good.
(2) There was no evidence of any revocation of the notice.
(3) The tenancy was determined by the notice.
(4) There was no agreement creating a new tenancy.
FitzGibbon, J., concurred.
Murnaghan, J., also concurred, saying that the notice to quit must not leave the tenant an option in respect of an existing tenancy. The notice, even though it contained an option, was good in respect of a future tenancy to be created by the determination of the existing tenancy.
The appeal was dismissed with costs.
Miles v Murphy
Court of Queen’s Bench.
1 June 1871
[1871] 5 I.L.T.R 174
Whiteside, C.J.
This is an ejectment on the title; it was brought upon a notice to quit, served upon the defendant as tenant from year to year. It appeared at the trial that William Miles held the lands in question for a life still in being The defendant, in January, 1858, became tenant from year to year to William Miles, at a rack-rent. It was proved that on the 17th April, 1860, William Miles conveyed the lands to the plaintiff, George Williams, brother of the plaintiff, Anne Miles, for a term still subsisting, subject to redemption. Upon the 4th April, 1862, these lands were demised by W. Miles to Michael M’Kenna, for 21 years. In the result of the argument the sole question was whether the notice to quit served on the defendant, and signed by Anne Miles and M’Kenna, but not signed by the plaintiff, Williams, the mortgagee, nor given in his name, was valid, to determine the yearly tenancy of the defendant. The only evidence touching this point was the testimony of Anne Miles. She swore—“The plaintiff, George Williams, is now unwell; he did not interfere in the management of the lands mortgaged to him, but allowed my husband to receive the rent and make lettings, and allowed me to receive the rents since my husband’s death.” On cross-examination, she said—“M’Kenna never received rent from Heffernan or Murphy.” The form of the mortgage deed was also relied on. There was no proof nor allegation that the mortgage had been paid off; the day of default was long passed, and the mortgage contained a power to demise in a limited and special manner. His Lordship read the proviso. There was no other evidence at the trial. The only notice to quit was the one signed by the representatives of the mortgagor, and in his name; and the precise objection taken by the defendant was, that the mortgage having been proved, and the relation of mortgagor and mortgagee established, the legal estate was in the mortgagee, who was the reversioner, and the notice to quit should have been in his name. The plaintiff’s counsel did not requne the learned judge to leave any question to the jury, as to any authority that might be implied to be in the representative of the mortgagor, from the circumstances proved, to serve notice to quit and accept surrender, and so the matter stands. The verdict was for the plaintiff, with liberty for the defendant to move the court to have a verdict entered for the defendant. The question has been reduced to a very narrow point, namely, whether, in a case where there is a mortgagor and mortgagee, and the mortgagor is allowed to receive the rents, a notice to quit is valid upon tenants signed by the mortgagor alone, although the mortgagee is a party to the ejectment, but no authority on his part to give that notice has been proved. Mr. O’Hagan has referred to the case of Keech, Lessee of Warne v. Hall, Doug. 21. This case is of importance when we are pressed at the other side by the principle. Lord Mansfield says—“When the mortgagor is left in possession, the true inference to be drawn is an agreement that be shall possess the premises at will in the strictest sense, and therefore no notice is ever given him to quit, and he is not even entitled to reap the crop, as other tenants at will are, because all is liable to the debt, on payment of which the mortgagee’s title ceases. The mortgagor has no power, express or implied to let leases, not subject to every circumstance of the mortgage. If by implication the mortgagor had such a power, it must go to a great extent; to leases, where a fine is taken, on a renewal for lives.” In this case a special power of leasing is given, and no other power as to making surrenders, or dealing with the property. In the case of Trent v Hunt, 9 Exch., 14, the relation between mortgagor and mortgagee is explained. One of the counsel said that “a mortgagor cannot, without the consent of the mortgagee, accept a surrender, or give a valid notice to quit, nor bring an ejectment for breach of covenant; and that a mortgagor in possession is more like a receiver than a bailiff.” Baron Alderson in that case referred to the fact that the defendant had been allowed by the mortgagee to remain in possession, and receive the rents, and, if it became necessary, to realize the rent by distress, and to distrain for it, in the mortgagee’s name, and as his bailiff. I cannot help thinking upon the subject of the relation between mortgagor and mortgagee, that there is a difference between a lease made before and after a mortgage. The case of Burrowes v. Graden, 1 Dow and Low, 210, explains the distinction. Wightman, J., says—“Where a tenancy has existed before the mortgage, upon the mortgage taking place, the tenant is to be considered as having attorned to the mortgagee, and as becoming tenant to him, in the same manner as in the ordinary case of a conveyance of a reversion.” There is a distinction between a case in which the tenancy was created before, and one where it was created after a mortgage, as in Evans v. Elliott, 9 Ad. & E., 342. In the case of Burrowes v. Graden, it was held that “whenever a mortgagor conveyed his estate to a mortgagee, subject to all the ordinary incidents to such a relation, the mortgagee could not dispossess the tenant without a regular notice to quit, but he might eject both the mortgagor and the mortgagor’s tenant who came in after the mortgage, and the utmost he need do would be to demand possession.” The next question is, if a notice be served by one who claims to be agent for the mortgagee, how is it to be framed? In the case of Doe v Goldwin, 2 Ad. & El., N.S, 143, Chief Justice Denman has settled the point—“Now, if Mr. Lyster be considered merely as the agent of the mortgagees, the notice is bad, both because the notice is in his own name, and not in that of his principal, and also because no authority from them was proved, the joining in the ejectment being no evidence of such authority;” but in that case the clause in the mortgage deed, as to Mrs. Lyster receiving the rents till default made, operated as a re-demise to her husband. Mr. Lyster had a legal estate in the reversion when he gave the notice to quit, and as no default was made the notice by him was good, and might have been acted on by the tenant. In the present case the notice is a plain, common notice by Anne Miles, without any reference to the mortgagee, or giving the tenant to understand that she acted for the principal The case of Buron v. Denman, 2 Ex, 186, bears upon this point. In that case the seizure of slaves in Africa was an act that was ratified by the Ministers of State in England. Baron Parke said—“Generally speaking, between subject and subject, a subsequent *175 ratification of an act done as agent, is equal to a prior authority; that, however, is not universally true. In the case of a tenant from year to year, who has by law a right to half a year’s notice to quit, if such notice be given by an agent, without the sanction of the landlord the tenant is not bound by it.” The only remaining question is this—It is said that the case has been brought to that of a receiver. The plaintiff says that the mortgagor, her husband, allowed her to receive the rents. I cannot consider this question without looking at the relations that existed between the parties. It is the case of a mortgagor and mortgagee; the mortgage deed is precise; the lease should be made according to legal principles; the court cannot disregard the relations between the parties. In the first edition of Filgate’s L. & T., 92, there were cases in which it was held that an agent in Ireland had power to determine a tenancy, but some of the judges in England seem to consider that an agent in this country had no such power. In the case of Lessee Conner v. M’Carthy, Batty’s Reports, 643, it was held that the bringing of an ejectment, after a service of a notice to quit by the agent was a sufficient recognition by a lessor of the act of that agent, without further proof of the agency. In Doe dem. Mann v. Walters, 10 B.C.C., 626, it was held that where a notice to quit was given by an agent of the landlord, the agent ought to have authority to give it at the time when it begins to operate, and that a subsequent recognition of the authority of the agent will not make the notice good. When that case was presented to the Court of Exchequer Chamber, the court thought that “it went very close to the wind.” The case of Lessee Frewen v. Ahern, 4 Ir. L. Rep., 18, bears upon the question here. The point turned upon the service of a notice to quit, by the agent, and he was regarded as a mere receiver. Chief Baron Brady said that the case of Lessee Conner v. M’Carthy (ubi supra), and the case of Roe v. Pierce, 2 Campbell, went a great way to establish the proposition that there was sufficient recognition of the authority of the receiver by bringing the ejectment, but “these decisions were, however, encountered by the subsequent decision of the Court of Queen’s Bench, in England, in which case the court were of opinion that although a notice to quit, given by an agent, might be recognized on the part of the landlord by something subsequent to the service of it, yet that such recognition must be something independent of, and antecedent to, the bringing of the ejectment.” So far from that decision being overruled or impeached, he (Chief Baron Brady) found it recognized by the Court of Common Pleas, in England, in the more recent case of Doe, dem, Rhodes v. Robinson. In the case then before the court “there was not any evidence of the agent having authority to serve the notice to quit, except the fact of his being the receiver of the rents; but a mere receiver of rents had no authority, as such, to demand possession, or serve a notice to quit.” Baron Richards said—“If, however, we be pressed by the conflicting authority of the Court of Queen’s Bench in this country, I can only say that the English decision is the later one, which, so far from having been overruled, has been expressly recognized by a subsequent decision in the Court of Common Pleas in that country.” The case cited from Burrowes was one in which a notice was served by a receiver, but he did it by order of the Court of Chancery. He was appointed a receiver of the rents and profits, with liberty to let the lands with the approbation of the Master. He gave the notice, and the Court held that the receiver was the agent of the landlord lawfully authorized, and that the notice was sufficient. This question came before the Court of Exchequer, when my learned predecessor in this Court was one of the Judges there. The Court had to determine whether the tenancy existing in the defendant was rightly determined by the service of the notice to quit. The case was that of Lessee Keating v. Cleary (6 Ir. L. Rep., 221). Chief Baron Brady was of opinion that a receiver appointed by the Court of Chancery, had authority, by virtue of his office, to determine a tenancy by service of a notice to quit, the Master, after the service of that notice, having made an order that the ejectment should be brought, though at the time of the service he had not been authorized to institute the proceeding. “A receiver appointed by a Court of Equity,” said Chief Baron Brady, “is to be considered as a public officer, acting under the direction of the Court in the discharge of a public duty; and it is to be supposed that the Court, while on the one hand it will keep him strictly within the line of his duty, will on the other hand, protect a party, whose conduct may have been influenced by his acts. Furthermore, as was observed by my brother Lefroy, the rule of Court directing that the receiver is not to serve a notice to quit without the order or approval of the Master, is a recognition that the service of a notice to quit is within the scope of the receiver’s general authority; and, in my opinion, the Court, so long as it had authority over the property, if it saw that the tenant was misled by the act of the receiver, would not visit that tenant with the consequences of an unauthorized proceeding of its own officer; and even supposing the suit to terminate before the expiration of such a notice, this would make no difference, because the party entitled to the property after such termination, must take it, bound by the acts of the Court legitimately done in the progress of the suit.” Baron Lefroy said—“Everything that can be said upon the subject has already been so fully stated, that I shall content myself with observing that in my opinion the authority of a receiver is quite different from that of a private agent. When the Court takes possession of the estate, it can only act upon it through its officer. On the other hand, a private agent acts under the direction of his principal, and does not interfere with his possession; but this Court, or the Court of Chancery, can only deal with the possession, or manage the estate through the medium of its officer. In the case of a private agent, you must prove a special authority to serve a notice to quit; but in the case of a receiver you must presume it—in other words, in the case of a receiver, that authority must be implied, which in the case of a private agent must be proved.” If this case could be brought round to the case of a private agent, and it could be proved that the plaintiff had acted as the agent of the mortgagee, our view might be different, but there is not any evidence of that authority, and I do not know that if my brother O’Brien had been called upon to imply an authority he would have been justified in so leaving it to the jury. The observations of Denman, Chief Justice, in Doe v. Goldwin, were “that if the agent of the mortgagee be considered as merely an agent, the notice was bad, because the notice was in his own name, and no authority from the principals was proved.” There was evidence in that case to go to the jury to imply that there was authority to serve the notice to quit, as he had the legal estate in the reversion—but this does not apply to the present case; in that case it was right to draw the inference; in the present case no such inference could be drawn. There was not any material for a judge to justify him in directing the jury to find for the plaintiff, nor to leave the question to them Under these circumstances I am of opinion that the verdict for the plaintiff should be changed into a verdict for the defendant.
Fitzgerald, J.
I concur in the judgment that has been delivered by the Lord Chief Justice. We should feel ourselves indebted to him for having gone so fully through the authorities, and for the research which he has displayed in bringing before us many that had not been referred to by counsel. At the close of the argument I did not entertain any doubt as to the question It might be convenient to adopt Mr. Murphy’s view, that so long as the mortgagor exercised the ordinary dominion over the property he should have as incidental thereto all the powers usually possessed, considering the great number of existing mortgages involved in the question. All we are at present called upon to say is whether the proposition thus laid down by the plaintiff’s counsel is law—all we shall at present say is, it is not law. The question has been brought before us in a manner most convenient for our decision. There has been a verdict for the plaintiff, with liberty to the defendant to apply to change it into a verdict for him. It seems to me *176 that we need not go into the abstract question, whether we are, from the relation of mortgagor and mortgagee—the mortgagor being allowed to receive the rents—to infer a power in the mortgagor to determine tenancies. That proposition has been presented in the broadest way. There was a special provision in the mortgage deed that, till there was default, the mortgagor should remain in possession. Default did take place in the life of Miles—that default is not of any importance. It appears from the evidence of Mrs. Miles that her husband, and since his death the mortgagee, suffered her to receive the rents. The question comes to the abstract proposition—a mortgagor—a default, the mortgagor continuing in possession of the rents. We are called upon to assume and almost to infer, and we are told we should arrive at the conclusion, that the relation between the parties authorized the mortgagor to determine tenancies for the mortgagee. No authority has been cited warranting such a conclusion. The authorities relied upon by Mr. Murphy have been distinguished from the others that have been cited, on the most solid grounds, by the Chief Justice, either as regards the question of agency, or the relationship of the parties, and it has been shown that there is not any analogy between them. The case in 9th Exchequer Reports is quite consistent with all that Mr. O’Hagan has put forward. It decides that until the mortgagee interferes the mortgagor can receive the rent, and the tenant can safely pay him. The nature of the case requires it. Somebody must receive the rents. The mortgagor is permitted to receive the rents, and he must be-treated as the bailiff of the mortgagee, otherwise the rents would be derelict unless the mortgagee were coerced to go at once into possession. The question is, has the mortgagor the power to let? If he had any other power than that which the instrument gives, he might let upon a fine, grant long leases, and detract considerably from, if not annihilate, the security of the mortgagee All the authorities show that he has not any such power. He may let as between him and the tenant, but the moment the mortgagee interferes, the mortgagor and the tenant are regarded as trespassers. It is said that he has power to determine tenancies. If he have that power he must be equally empowered to accept surrenders. Take the case of a mortgagee lending his money and finding a solvent tenant in possession; he knows that the tenant is in good circumstances, and that he can look to him for the payment of the interest of his mortgage. If the argument for the plaintiff were right, the mortgagor would have power to relet and detract from the security of the mortgagee. There are other consequences that would necessarily follow. There are covenants. the breaking of which by the tenant would injure the reversion. Has the mortgagor, being allowed to receive the rents, any power to take advantage of the forfeiture without the authority of the mortgagee? He has not, and to permit him to do so might enable him to affect the mortgage security. If the mortgagor has such a power, the authority would be carried to the extent of seriously endangering that security. In the absence of authority, and with a precise authority the other way, we have been called upon, and with great vigour, to determine this case in favour of the plaintiff, and we have been told that if we did not the case, would be taken to the Court of Exchequer Chamber, or, if necessary, to the House of Lords. I think it will be found that the rule is too strong. I put out of the case the statement that Mrs. Miles has been suffered to receive the rents and make lettings. She says in her evidence that her husband allowed her to receive the rents. She limits the authority which she received to a permission to receive the rents. 1 do not think that there is any evidence of authority. If anything was relied on as to that, it should have been submitted to the jury. At the trial, Mr. Murphy did not rely upon the verbal testimony, but he called upon us to infer from the mortgage, the relationship between the parties themselves, and the fact that the mortgagor was suffered to remain in possession—that she had authority to serve this notice to quit. I entirely concur in the conclusion at which the Chief Justice has arrived, that the verdict should be entered for the defendant.
George, J.
The facts of this case have been so clearly stated by the Lord Chief Justice, which undoubtedly are sustained by the authorities which he has quoted in detail, that I do not consider myself to be justified to do more than to express a general concurrence in his views and state, in a few words, the grounds upon which I have come to that conclusion. The case of the plaintiff has been based upon three grounds; first, that according to the facts and circumstances, and upon the evidence, authority express or implied, is to be supposed to exist in the mortgagor who gave the notice to quit. The plaintiff further relies upon the express terms of the mortgage deed, as conferring upon her authority which she would not have had otherwise; and thirdly, that upon its general doctrine of the relation between a mortagor and mortgagee, the Court should infer that an authority existed in the mortgagor to give the notice to quit. In none of these propositions do I concur. There is not anything in the evidence of Mrs. Miles, to carry this case beyond the ordinary relation of a mortgagee, out of possession, and a mortgagor suffered, and tolerated at the will and pleasure of the mortgagee, to remain in possession. In every case of mortgage an authority is not inferred, it must be expressed in the deed, and I do not see anything to say that an express or implied authority to give a notice to quit had been conferred upon Mrs. Miles. The mortgage deed has been read in extenso, and the only provisions in it, as to authority, are those which enabled the mortgagor, and his wife after his death to make leases; this is followed by a necessary incident enabling the mortgagor in possession to distrain; it is a different thing to give authority to a mortgagor to lease lands and get the fruits thereof, and to give a power, with which no agent usually is or should be entrusted—namely, to determine a tenancy by giving a notice to quit. The fact that a power of leasing and recovering by distress, had been given would lead me to think that it was not the intention of the party, as expressed by the deed, that the power of determining tenancies and levying fines, should be possessed by a person who could be dispossessed at a moment’s notice, at the will and caprice of the mortgagee, In the ordinary relation of mortgagor and mortgagee, no such power is given nor intended to be given. The mortgagee is the real owner of the property, from the moment that the mortgage has been executed, and can exercise all the powers of a landlord; he allows the mortgagor, for the convenience of collecting the rents, to remain in possession, which possession he may at any time determine. Although the possession of a mortgagor is permitted, suffered, and tolerated, until a default takes place in the payment of the purchase-money, the power which it is said, in this case, is given to him, cannot be maintained. The moment it is sought to give to the mortgagor in possession, the same authority as that of a mortgagee, an authority is contended for that is not incident to the perishable nature of the interests of a mortgagor—namely, a power to determine a tenancy by a notice to quit All the cases in the books seem to be distinguishable from the relation of mortgagor and mortgagee, which exists in the present case—namely, the cases of agents and receivers in the Court of Chancery, trustees cestui que trusts, or tenants at will. As to a receiver, the power has, from the necessity of the case, been given to him, It is necessary that receivers who have the management of estates should have such a power. But I am at a loss to understand, how a common agent who has been appointed to receive rents has, either in practice or in point of law, a power to determine tenancies by a notice to quit. This would be, under ordinary circumstances, a dangerous power to give an agent, and except with a warrant of attorney no such power is given. I am of opinion that upon none of the grounds urged, neither upon the construction of the deed of mortgage, nor from the relation of mortgagor and mortgagee, can it be inferred or concluded that such a power was given in this case.
O’Brien, J.
Being the judge before whom the case was tried, I shall say a few words merely. I do not recollect, nor probably is it important for me to consider whether I formed or expressed a decided opinion upon the subject at *177 the time, but I am now satisfied from the arguments I have heard, that I should have ruled the other way. I thought it immaterial in which way the ruling was made, and I put it in the shape of a reservation of liberty to the defendant to apply to set aside the verdict for the plaintiff; and perhaps if this case is brought before the Court of Exchequer Chamber, or the House of Lords, my first impression will he upheld.
Celina Curoe v Wm. Gordon
14 March 1892
[1892] 26 I.L.T.R 95
Palles, C.B.
Palles, C.B.
I am against the defendant on both of the points put forward. Here there is in all strict *95 ness a tenancy from year to year, and it is well known that this kind of tenancy originally sprung out of a tenancy at will. It was found by the judges that it was both inconvenient and unjust to allow a determination of these tenancies at will at certain seasons of the year, when the crops of the tenant were about to be harvested; they therefore invented a six months’ notice to quit, which has been extended to notice to quit determinable at the last gale day of the year. When a notice to quit has been served by one of the parties, then, if nothing in the nature of a waiver takes place, there is a determination of the tenancy. The service of the notice to quit per se determines the tenancy when the particular time mentioned in the notice has elapsed. When a notice to quit is waived there is a continuation of the old tenancy. The tenant for life had power to serve the notice to quit, and the tenancy was determined at the time mentioned in it, and consequently the reversioner can bring an ejectment relying on it. There is more difficulty about the second point. Formerly such a point would have been comparatively insignificant, but that is not now the case. Since the Land Act of 1881 it has become of great importance. Suppose a tenant lost his right to have a fair rent fixed owing to the creation of a new tenancy, it would be thought that he had suffered great hardship. Here I must look at the substance of the transaction, and if by an inference of law I am able to give effect to it I will do so, instead of, by introducing a fiction of law, throwing everything into confusion. At one time I was of opinion that a change in the amount of rent was conclusive evidence of a change of tenancy, but in the case of Lord Inchiquin v. Lyons the Court of Appeal hold that I was wrong; I must follow their decision now. In this case there was a surrender of part of the lands, and on surrender there followed an extinguishment of part of the rent. On a surrender of portion of the lands the amount of rent could be fixed by a jury or by contract between the parties. Here the amount of rent was fixed by contract. The defendant succeeded Andrew Crutchley as tenant, and the parties were plainly dealing with one another on the old interest. There was no intention of creating a new tenancy; and I therefore hold that six months’ notice to quit is sufficient, and that a decree be given to the plaintiff for possession of the lands set out in the ejectment process.
Order accordingly.
Colfix (Dublin) Ltd. v Hendron Bros. (Dublin) Ltd.
High Court.
1 January 1949
[1949] 83 I.L.T.R 45
Maguire J.
Landlord and tenant—Notice to quit—Uncertainty as to nature of tenancy—Uncertainty as to date of commencement of tenancy—Whether notice to quit served for one date good in such circumstances.
A notice to quit served for one specified date without any alternative date is bad, when the date of the commencement and the nature of a tenancy cannot be ascertained.
Circuit Appeal.
The plaintiffs had for many years owned *45 the premises Nos. 104 to 109 Sheriff Street, Dublin, which consisted of a yard without any buildings. On some unknown date in April or May, 1933, the plaintiffs entered into an oral agreement with Mr. Hendron, who was one of the directors of the defendant company. By that agreement it was agreed that the plaintiffs would permit the defendants to occupy a certain part of the premises. The plaintiffs stated that the tenancy commenced on 1st May, 1933, at a rent of £6 per month as a tenancy at will, and they also stated that the rent was raised to £8 per month from 1st June, 1946, by notice to the defendants on 1st July, 1946. That notice took the form of an application for the increased rent. The defendant company denied that the tenancy was a tenancy at will and stated that the rent legally payable for the premises was, at all material times, £6 per month and that it was never legally raised to £8 per month. They refused to pay the increased rent and stated that they were always willing to pay all rent and arrears at the old rate.
When the defendant company ceased to pay the rent a notice to quit was served on them by the plaintiffs on 17th April, 1947. The notice to quit was as follows:—
“We Colfix (Dublin) Ltd., having our registered office at East Wall Road, Dublin, C.10, hereby give you notice to quit and deliver up to us on the 1st day of June, 1947, possession of all that the yard being portion of our premises at East Wall Road in the City of Dublin, on the corner of Sheriff Street and East Wall Road, which you now hold from us as tenant from month to month or tenant at will.”
The defendant company, upon receipt of the notice to quit, served a notice of intention to claim relief under the Landlord and Tenant Act, 1931, on the ground that they were, during the whole period of approximately fourteen years next preceding the service of the notice to quit upon them, bona-fide using the tenement in question for the purpose of carrying on a business. They also contended that the notice to quit was invalid as it did not purport to terminate the tenancy and they claimed compensation for improvements and for disturbance.
The plaintiffs then served an ejectment civil bill for overholding, for possession of the premises and for £98 arrears of rent. The defendant company, by their defence, alleged that the rent should be £6 monthly but nevertheless lodged £98 in Court without admission of liability.
Representation
C. Sainsbury, for the plaintiff company.
D. P. McCann, for the defendant company.
Maguire, J., in delivering his judgment said that this was very unfortunate litigation between two highly reputable Dublin firms.
The notice to quit demanded possession for 1st June, 1947; it was a notice to quit on that date and no alternative date was given and therefore it had to be good for that date or bad altogether.
Evidence of the commencement of the tenancy was very vague. Mr. Thompson, who made the letting on behalf of the plaintiffs, tried to cast his mind back to the events at the commencement of the tenancy but could not clearly remember them. The letting was made some time in April, 1933, and Hendrons entered into possession some time in May, 1933. Mr. Thompson refreshed his memory by reference to certain entries in the firm’s books made by a Miss Hill at the end of May, 1933, but he was not present when such entries were made, Miss Hill was not examined and the books were not produced, and the evidence as to the commencement of the tenancy remained vague. Mr. Thompson thought it was a tenancy at will, but it appeared that it was probably a monthly tenancy. The rent was paid monthly, but irregularly and the entire difficulty in the case arose from the vagueness of the commencement of the tenancy. Mr. Thompson said that the entries in the books were made some weeks after the conversation regarding the commencement of the tenancy. His Lordship could not, therefore, hold that the notice to quit was good. The tenancy might have commenced some time in April, 1933. It was not even clear when Hendrons entered into possession and His Lordship could not, therefore, make the order asked for by the plaintiffs and he had to hold that the notice to quit was bad. The order of the Circuit Court making a decree for possession was reversed, and costs were awarded to the defendant company.