The Gazette 1979

JULY-AUGUST 1979

GAZETTE

RECENT IRISH CASES LANDLORD AND TENANT Breach of covenant sufficient to sustain grant of interlocutory injunction at suit of lessor. The Plaintiff lessor demised the Units within a Shopping Centre owned by it on foot of leases (generally in standard format) prohibiting — (save with the written consent of the lessor) — (a) assignment or subletting, or, (b) use by the lessees other than for the limited purposes specified in each instance. It was in order to obtain the best Returns from their lettings that the Plaintiff endeavoured to ensure that there was a good "tenant-mix" and it controlled the number of shops of each variety. The user provided on the demise of the premises, the subject matter of these proceedings ("the subject premises"), was that of "a General Hardware Store". The lessee's interest under the lease of the subject premises had been assigned to the first Defendant (Shalaine Modes) who carried on therein the business of a Boutique without objection by the Plaintiff or anyone else. The Plaintiff had expressly consented to such assignment, but not to the change of user. The second Defendant (Crinion) occupied two other Units in the Centre, one of which was utilised for the retailing of toys, which business — recognised as being seasonal (Christmas time) to a substantial degree — was also carried on in a further Unit within the Centre by another party ("the second toy retailed'). The second Defendant and the second toy retailer had, in previous years, taken temporary sublettings of Units (including the Units of the first Defendant) without the Plaintiffs consent, and, likewise without consent, had used the same for the display or sale of toys. No objection seems to have been taken to these courses either by the Plaintiff or any other tenant in the Centre. In November 1978 the Sxond Defendant, without applying for or obtaining any consent in writing, had taken a temporary subletting from the first Defendant of the subject premises, and had commenced carrying on therein the business of selling toys in a manner which had caused the second toy retailer and

February 1973. During negotiations between the tenant and the Respondents, the Respondents stated that they would give a new lease for three years from the 12 February 1973 but that the tenant would have to vacate the premises from the 6 February to the 12 February 1973. Further negotiations took place to see if a method could be found by which the tenant would not acquire a right to a new tenancy but would not have to vacate the premises for that period because the tenant feared that such vacating would damage the goodwill of the business which he had built up. It was finally agreed that the tenant would be allowed to remain in the premises as a caretaker only and that a three year tenancy would commence on the 12 February 1973. The tenant signed the following written acknowledgement, which was dated the 6 February 1973 and was signed by the tenant on the 5 February 1973: "I, ' L.G.C. — do hereby acknowledge that I have been this day put into the possession of all that the premises, and equipment attached thereto, Gatien Service Station, Whitechurch Road, Rathfamham, Co. Dublin, as caretaker by and for Continental Oil Company of Ireland (Conoco) — and that now I am in possession of said premises and equipment solely as such caretaker of and for Conoco and not under any contract of tenancy. And I hereby further acknowledge that I have undertaken and agree and I do now hereby undertake and agree with Conoco to take care of the said premises and equipment for him (sic) and to preserve same from trespass and injury and to deliver up the possession thereof to Conoco its successors, his heirs or assigns, when required so to do". Before signing this acknowledgement the tenant knew that he would not be given a new tenancy unless he did so sign, and that the one week interval and the acknowledgement were required to prevent him acquiring rights to a new tenancy and that he was fully advised by his solicitor before signing the acknowledgement. A new lease for three years from the 12 February 1973 was executed on the 24 July 1973 and was taken in the name of the Applicants (Gatien

another lessee of the Plaintiff to object to the Plaintiff. The proceedings had been instituted by the Plaintiff to restrain the breaches of covenants by the two Defendants. Held (per McWilliam J.) that prima facie there had been a clear breach of the user Covenant in the lease of the subject premises and that the Plaintiff was entitled to rely on the covenant in the Lease and was entitled to an interlocutory injunction to prevent the two Defendants breaching such Covenant. The Court did not accept as being meritorious the following contentions offered by way of defence viz. (i) that the Plaintiff's acquiescence to previous sublettings had lulled the Defendants into a false sense of security; (ii) that the Plaintiff on becoming aware of the breaches did not move with sufficient alacrity; (iii) that consent had been given verbally or impliedly by the Manager of the Centre; (iv) that ttfe proceedings had been inspired by a profit motive and were therefore discreditable. Shaw v. Applegate [1978] 1 All E .R. 123 considered, but not applied, because underlying circumstances deemed to be different in that there the acquiescence of the landlord in a tenant's breach of a user Covenant had been of some years' duration. Green Property Company Limited v. Shalaine Modes Limited and Thomas Crinion — High Court (per McWilliam J.) — 30 November 1978 — unreported. LANDLORD AND TENANT Landlord & Tenant Act 1931 — Continuity of Tenancy — Contract- ing Out. The Respondents (Continental Oil Company) leased garage premises and equipment to Mr. L. G. C. ("the tenant") for three years from the 6 February 1970 by lease of 15 October 1970. The tenant covenanted to yield up the premises at the end of the lease. Under the provisions of Sections 19 and 20 of the Landlord & Tenant Act 1931 the tenant would not have been entitled to a new tenancy when the three year term would expire on the 6 February 1973 because the term would have "terminated" within the meaning of Section 19 three months before the 6