The Gazette 1986

GAZETTE

sepTemBER

1986

Periodic Tenancies in Writing and the Running of Time by James C. Brady Professor of Property and Equity, University College, Dublin

T he application of the principle of limitation to actions for the recovery of land has a long juris- prudential pedigree yet the Irish courts have recently been confronted with apparently intractable problems to which the relevant legislation and case law provide no clear answers. 1 The most recent such problem involved the question whether when there is a periodic tenancy in writing the tenant can, by possessing the demised premises without payment of rent for upwards of forty years, acquire the title of the lessor by adverse possession. Such a question was posed in Foreman -v- Mowlds 2 but, as we shall see, Barrington J. in the High Court managed an adjudication on the facts of the case without answering that question. The matter came before Barrington J. by way of a special summons under s.9 of the Vendor and Purchaser Act, 1874, and concerned a contract, dated 20 December, 1984, between Mary Mowlds and Kathleen Mowlds, the vendor, and Robert Walsh, the purchaser in trust, of certain premises at 39 Lower Stephen St., Dublin 2. The applicant named in the special summons was one Robert Foreman for whom the premises were being purchased in trust by Robert Walsh and he sought answers to the following questions arising out of the contract of sale. Firstly, were the statutory declarations of Thomas Mowlds and Desmond Mowlds, dated 7 November, 1951, sufficient to prove that the vendors had acquired title to the lessor's interest in the tenancy agreement, dated 6 April, 1907, between William Lewis and Thomas Mowlds. The second question which the applicant sought to have answered was whether where there is a tenancy from year to year in writing the tenant can, by remaining in occupation and possession of the demised premiss, for upwards of forty years without payment of rent, acquire the lessor's title by adverse possession. The statutory declarations in question revealed that Thomas Mowlds, the original tenant, had paid the rent reserved by the tenancy until approximately January, 1922, and thereafter he and his successors in title had remained in occupation and possession of the demised premises without paying any rent to the original lessor William Lewis or his successors in title or to any person claiming an estate or interest in the premises through the said William Lewis or otherwise, and no demand for payment of the rent had been made on Thomas Mowlds or his successors. The vendors accordingly claimed that

Thomas Mowlds, and they as his successors in title, had acquired the lessor's interest in the tenancy agreement by adverse possession. Objections and Requisitions on Title were raised by and on behalf of the purchaser who objected to the title furnished on the ground that there was nothing in the Statute of Limitations, 1957, or the earlier Statutes of Limitation, which provided for the running of time in the case of a periodic tenancy where the tenancy agreement was in writing. The matter came before the High Court to have the dispute as to the sufficiency of the statutory declarations resolved with counsel for the applicant stressing the urgency of a decision to the parties since the date fixed for completion of the contract had passed; the court was dealing with a willing purchaser and a willing vendor. Counsel could find no guidance in the statutes and authorities which he opened all of which were silent on the point in question when the court was dealing with a written tenancy agreement. 1 Counsel for the respondents said that the point was an open one and referred to In re Shanahan 4 in which O'Dalaigh C.J. ( nem. diss.) in the Supreme Court upheld the ruling of Teevan J. that in the circumstances of that case mere non payment of rent barred only claims for rent and did not bar the right of the landlord in reversion on the determination of the tenancy; there was no adverse possession of the land but only of the rent charge under s. 18(4) of the Statute of Limitations, 1957. The report of Foreman -v- Mowlds in the Irish Law Times continues the reference to In re Shanahan thus: "O'Dalaigh C.J. declined an invitation to presume the determination of the tenancy by reason of the non-payment of the rent. His Lordship, the Chief Justice stated: 'The relationship of debtor-creditor/creditor-debtor which existed between the parties for twenty years terminating in 1962 would, in my opinion, negative any presumption of the determi- nation of the tenancy that might otherwise arise from the non-payment of rent.' This latter extract from the judgment of O'Dalaigh C.J. may well be misleading if taken out of context in so far as it seems to equate the relationship of creditor/ debtor with that of landlord/tenant. The English case Stagg -v- WyatC was relied on in In re Shanahan in support of the argument advanced for the applicant that where rent under a tenancy from year to year is not paid there is a presumption that the tenancy has terminated. 253