The Gazette 1986

GAZETTE

sepTemBER

1986

Having considered Stagg -v- Wyatt O'Dalaigh C.J. went on: "If I am to accept Stagg -v- Wyatt as good law the appellant is nevertheless still remote from having established a statutory title. There is here a circumstance which clearly distinguishes this case from Stagg -v- Wyatt. Here the Appellant deposes that in 1942 her landlord was indebted to her in the sum of £12 odd for shop goods. He was unable to discharge this debt but she did not institute proceedings to recover what was due. On the basis of the case which the Appellant puts forward she was herself then £2 in arrears in respect of rent (4 years rent, 1938-42, at 10/- per annum). Both the Appellant and the landlord abstained from enforcing their respective claims. Twenty years would have had to run (1942-1962) before the Appellant had recouped herself the net amount (£12 minus £2 arrears of rent) due to her for shop goods out of the rent falling due half yearly at 10/- per annum. Mr. Justice Teevan was not asked to presume the determination of the tenancy by reason of the non- payment of the rent. "Counsel's submission, I take it, is, in effect, that this Court should now do so. I would decline to do so. 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 determination of the tenancy that might otherwise arise from the non-payment of rent." 7 The use of the terminology of debtor- creditor/creditor by the Chief Justice is thus referrable to the purported agreement that the debt owed by the Respondent for shop goods was to be discharged by remission of the rent owed by the applicant. O'Dalaigh C.J, was of the opinion that Teevan J. should not have resolved the conflict of evidence between the parties regarding this agreement without hearing oral evidence but the Chief Justice went on to say that he rather doubted if Teevan J. would have done so "if he had not been satisfied that the respondent, Mrs. Shanahan, was in any event entitled to succeed on a point of law." 8 That point of law had been stated by Teevan J. thus: "Here we have a yearly tenancy, and while it subsists, the landlord is not entitled to possession and, therefore, cannot be barred by the mere possession of his tenant. This is so even if rent has not been paid for more than twelve years. In such circumstances all that is barred is the recovery of the rent for more than six years." 9 Teevan J. was asserting the orthodox view that a lessor's reversionary interest remains unaffected until the tenancy determines since his interest remains non-possessory until then and it makes no difference that the lease is for a term certain or creates a periodic tenancy. Barrington J. said he had formed a view on the facts but was concerned that he might find himself making law. Given the state of the authorities referred to by counsel this latter eventuality seemed well nigh unavoidable if the court was to reach the conclusion urgently sought by a willing vendor and a willing purchaser. In the event Barrington J. addressed only the first question posed by the Special Indorsement of Claim which was whether or not the statutory declarations were sufficient to prove that the vendors had acquired title to the lessor's interest in the tenancy agreement. The learned judge took the view that there was clear evidence on the facts put before him that the tenancy was determined for some time, probably in 1922, and there was no effort to enforce the landlord's

interest for over fifty years. In these circumstances it appeared to Barrington J. that the tenant had acquired the landlord's interest by long term possession and he thus answered the first question in the affirmative. The learned judge declined to answer the broader question concerning the application of the principle of limitation to periodic tenancies in writing since this would necessitate reserving judgment in circumstances in which the parties required clarification urgently. Barrington J. did add the rider invariably resorted to by judges when dealing with hard cases when he said that the circumstances were "peculiar" to the case in question. It could be said of course that the specific question regarding the sufficiency of the statutory declarations, and the broader question regarding the running of time in relation to periodic tenancies in writing are not separable and an affirmative answer to one implies an affirmative answer to the other. Be that as it may Barrington J.'s answer to the first question posed accords both with common sense and the raison d'etre of the principle of limitation as it applies to actions for the recovery of land which is the extinction of stale claims and the quieting of title. 10 A negative answer would lead to the remarkable result that however long rent had been unpaid and the tenant and his successor remained in possession and exclusive occupation of the demised premises without acknowledging the title of the landlord, the landlord and his successors could recover possession if the tenancy agreement had been in writing. Such a state of affairs could not obtain indefinitely in the case of a lease for a time certain since at the end of the period fixed by the lease time might begin to run against the lessor if the lessee remained in possession without paying rent or otherwise acknowledging the lessor's title." Thus we have a curious anomaly that in the case of a lease in writing for a term certain time may begin to run in favour of an erstwhile tenant while in the case of a periodic tenancy time may never so run. What might fairly be described as Barrington J.'s common-sense approach echoes that of the old Irish Court of Appeal to the quite different problem posed by the facts of Re Field J 2 There an unanimous Court of Appeal reversed O'Connor M.R. and held that a landlord was not entitled to recover any rent which accrued after the interest of an assignee of the original tenant had been extinguished by the Statute of Limitations. The claim for rent was being taken against the estate of the deceased assignee and O'Brien C. referred to the singular state of affairs which would follow the admission of such a claim viz. that despite the cesser of the assignee's interest with the effluxion of time, his estate would remain liable for ever for the rent of the tenacy from year to year. Little obvious support for the Barrington J. approach can be gleaned from the recent decision of the Supreme Court in Sauerzweig -v- Feeney. ]i The Plaintiff in the latter case claimed possession as the successor in title of the landlord who had entered into a written contract of tenancy in 1942 with the Defendant in respect of premises at 11 George's Avenue, Blackrock, Co. Dublin, under which the Defendant acquired a tenancy from week to week at a rent of fifteen shillings a week. The Plaintiff had acquired the lessor's interest on her father's death in 1962. The facts which are set out in Henchy J.'s judgment, and which were not in dispute, disclosed that

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