The Gazette 1978

GAZETTE

N O V E M B E R

1978

(2) The Hall Floor Flat by an Agreement made the 18 July 1951 to a Mr. Thornhill who covenanted to keep the interior of the premises in the same order repair and condition as they then were, not take down any fixtures or fittings whatsoever or to put up or erect other fixtures or fittings (electric and gas fittings excepted). The Landlord covenanted with Mr. Thornhill, "that the tenant paying the said rent and performing and observing the covenants and conditions hereinbefore contained may have quiet and peaceable enjoyment of the said premises". (3) The Drawing Room Flat by an Agreement made the 19 February 1962 to a Miss O'Neill who covenanted to keep the interior of the premises and the doors, windows and landlord's fixtures in good an t enan t ab le order repair and condition. The Landlord covenanted with Miss O'Neill, "that the tenant paying the rent and observing the covenants and stipulations on the tenant's part herein contained shall during the tenancy quietly enjoy the d em i s ed p r em i s es w i t h o ut interruption by the landlord or any person claiming under or in trust for him. (4)The Top Flat by an Agreement made the 15 October 1955 to a Miss Whelan who covenanted to permit the landlord on giving due notice at all reasonable times during the tenancy to enter the said flat for the purpose of inspecting the condition and state of repair thereof, not to put up any fixtures or fittings whatsoever (electrical and gas light fittings, cookers, heaters and stoves excepted), to keep and maintain the ulterior of the said flat in good and tenantable order, repair and condition during the tenancy, reasonable wear and tear excepted. There was no covenant by the Landlord for quiet and peaceable possession. The Defendant Landlord had bought the premises in 1971. On or about the 3 January 1978 he got a letter from Miss Lynch sending him the rent less the rates, although the legislation dealing with the effect of decision to abolish rates on private residences had not become law. He decided he would apply the strict letter of the law to all of the tenants and on the 5 January 1978 he gave notice that he would call to inspect the properties on the 7 January 1978. When he arrived on that day

Whelan, Miss Lynch and Mr. Thornhill for trespass, such damages to include any to which Mr. Thornhill and Miss Whelan were entitled for breach of covenant for quiet enjoyment. Mr. O'Neill and the other three plaintiffs were entitled to 'quia timet' injunctions against the Defendant. Held further, with reference to the counterclaims by the Defendant for damages for breach of the covenants to repair, that all the breaches of covenant alleged against Miss Whelan were within the exception of reasonable wear and tear. The Court further held that part of the claim against Mr. Thornhill related to the taking out of the partition wall and that this was not a breach by him and the rest of the claim failed because of failure to establish whether a crack complained of was there when the tenancy agreement was made. The Court further held that the claim against Miss Lynch succeeded even though there was no damage to the reversion because Section 55 of the Landlord & Tenant Act 1931 was confined to covenants contained in a lease and awarded £25 damages to the Defendant on that counter-claim. The Court further held, referring to Lister v. Lane [1893] 2Q.B.D. 212 Lurcott v. Wakeley and Wheler [1911] 1 K.B. 905 and Groome v. Fodhla Printing Company [1943] I.R. 380, that the claim against Mr. O'Neill failed because the defects were caused by a structural defect, the absence of a damp proof course and of provision for ventilation of the area between the floor and the sub floor, which was present in the premises when they were let. The Defendant Landlord had further counterclaimed that the tenants had installed fixtures or fittings in the flats without the consent in writing of the person who was at the time of the installation the Landlord. The Court held that telephones were not fixtures or fittings because they can never become the property of the Landlord. The Court further held that T.V. aerials were fixtures and that the Defendant was entitled to insist on the removal of those belonging to Miss Whelan and Miss Lynch. Costs only awarded to PlaintifTs. Nora Whelan, William Thornhill, Pierce O'Neill & Joan Lynch v. Patrick Madigan — The High Court (per Kenny J.) — 18 July, 1978 — unreported.

Mr. O'Neill was the only person he found in. He had no key to the main hall door and decided to break in. He forced open the hall door and forced three letter boxes which had been attached thereto and made them unuseable. He did not know that the previous owner had carried out reconstruction on the hall floor flat and he tried to enter it by force. He did considerable damage to the door and the surround and he also damaged the stud partition wall at the side. He found the hall door of Miss Whelan's flat in position and because he thought that consent had not been given to its installation he removed the door and left it standing at the landing. On 9 January 1978 the Defendant made a number of telephone calls from a public call box to Miss Whelan's premises. In each of them he telephoned her and when she lifted the speaker he said nothing. All she heard was a man breathing. On the 9 January 1978 he returned again to the premises and Miss Lynch, who was terrified that her flat was going to be broken into, telephoned the Gardai. When they came the Defendant maintained that he was entitled to do what he had done. He came again on the 11 January 1978 accompanied by a workman with the intention of restoring the premises to the condition they had been in beofre they were let, and also to fit a new hall door lock so that he would be able to get in and to remove the separate hall door into the hall floor flat and to remove part at least of the partition wall. Held (High Court, Kenny J.) that the Defendant had committed an act of trespass against Mr. Thornhill when he damaged his door and when he made a hole in the partition wall. The removal of Miss Whelan's door and the interference with the letter boxes was an act of trespass. Interference with the letter box was a sufficient act of physical interference with the enjoyment of the premises to sustain an action for breach of covenant for quiet enjoyment. The Court further held that as there was no covenant for quiet enjoyment in Miss Whelan's agreement and as she was in arrears with her rent the covenant implied by Section 41 of the Landlord & Tenant (Ireland) Act 1960 would not apply. The Court, referring to Drone v. Evangelou [1978] 2 All E.R. 437, awarded aggravated damages to Miss