The Gazette 1986

GAZETTE

sepTemBER

1986

the tenant had paid no rent since 1950 but, about 1956, there had been negotiations for the purchase of the landlord's interest by the Defendant but these negotia- tions came to nothing. The Defendant attempted to pay the rent in 1956 but was dissuaded from doing so by the landlord's solicitor on the ground that negotiations for the purchase by him of the landlord's interest were still pending. While the tenant thus paid no rent since 1950 the only steps taken by the landlord with regard to the recovery of rent were three letters written by his solicitor in August 1977, August 1978 and February 1981 requesting payment of the rent. The tenant had paid the ground rent and rates since 1960. The Plaintiff, having served a notice to quit determin- ing the weekly tenancy, brought a civil process in the District Court for overholding and got a decree for possession. The Defendant appealed against that decree and it was argued on his behalf before Judge Smith in the Dublin Circuit Court that since he had not paid any rent since 1950, and had not acknowledged the Plaintiff's title since then, he had acquired the Plaintiff's title by adverse possession. Judge Smith stated a case under s. 16 of the Court of Justice Act, 1947, requiring the Supreme Court to rule on the validity of the submission. Henchy J. who delivered the judgment (nem. diss.) of the Supreme Court considered s. 17(2) of the Statute of Limitations, 1957, which is in the following terms: (a) A tenancy from year to year or other period, without a lease in writing shall, for the purposes of this Act, be deemed to be determined at the expiration of the first term or other period. (b) The right of action of a person entitled to land, subject to a tenancy from year to year or other period, without a lease in writing, shall be deemed to have accrued at the date of the determination of the tenancy, unless any rent or other periodic payment has subsequently been received in respect of the tenancy, in which case the right of action shall be deemed to have accrued on the date of the last receipt of rent or other payment. Henchy J. pointed out that the case before him was not one of a tenancy from year to year but a tenancy from week to week with a lease in writing since the documentary tenancy from week to week ranked as a lease for the purpose of the Statute of Limitations; there was therefore no artificial determination of the tenancy under s. 17. This rather left the defendant in the same position as the tourist who inquired of a native in Sneem, Co. Kerry, which was the correct road to Dublin to be met with the reply; "If I was going to Dublin I wouldn't start from here." Counsel for the Defendant sought to circumvent the difficulty posed by the fact that the tenancy agreement was in writing by submitting that in the circumstances of the instant case the tenancy should be deemed to have been determined by abandonment for which proposition he cited Stagg -v- Wyatt. u Reliance on the latter case was to prove no more successful in the instant case than it had before Barrington J. in Foreman -v- Mowlds. Henchy J. pointed out that in Stagg -v- Wyatt there had been a demise of the disputed premises for 99 years and

the lease having run out in 1808 an implied tenancy from year to year had then arisen. Rent under the latter tenancy having last been paid in 1821, and, no rent having subsequently been paid by any of the persons successively in possession for the subsequent sixteen years preceding the action, it was held that failure to demand rent during that period was evidence on which the termination of the tenancy could be presumed. Thus, even if it was held that Stagg -v- Wyatt was correctly decided, it was not in Henchy J.'s opiniori, authority for the proposition for which it was cited in the instant case. Henchy J. went on to point out that although the report of Stagg -v- Wyatt does not refer to the then relevant Statute of Limitations, the Real Property Limitation Act, 1833, 15 it was clear that the facts were covered by s.8 of that Act which is the equivalent of s. 17 of the 1957 Act; the position was quite different however when, as in the instant case, the tenancy in question was a documentary one. Henchy J. did not let the matter rest there but went on: "Moreover, the defendant is the original tenant under the documentary tenancy from week to week entered into in 1942. He paid his rent under the tenancy up to 1950 and would have resumed payment in 1956 were it not that he was then negotiating the purchase of the landlord's interest. The landlord showed that he had not determined or abandoned the tenancy when he made for- mal demands in writing for the payment of the rent in August 1977, in August 1978 and again in February 1981. To none of these demands did the defendant reply that the tenancy had no application to him." 16 Henchy J. felt that the only proper conclusion in those circumstances was that the tenancy was not determined until the ser- vice of the notice to quit in the present proceedings and what the Plaintiff, as landlord, had lost was not her title to the property but her right to recover rent after the ex- piration of six years from the date when the arrears became due. 17 The Supreme Court decision in Sauerzweig -v- Feeney is more, the present writer believes, than a simple affirma- tion of the principle that time cannot run in favour of a tenant who holds a written tenancy. Henchy J.'s consideration of the facts led inexorably to a decision in the Plaintiff's favour and, it is at least arguable, that on- the facts that decision is not necessarily inconsistent with Barrington J.'s finding in Foreman -v- Mowlds. In Sauerzweig -v- Feeney the tenant had acknowledged the landlord's title in 1956 18 and the landlord was claiming rent as late as 1981 whereas in Foreman -v- Mowlds rent had neither been paid or claimed for upwards of fifty years. If one were to explain to a lay person the rationale of the principle of limitation as it applies to action for the recovery of land, i.e. the quieting of title and the ex- tinction of stale claims, he might well be forgiven for assuming that the principle would apply to the factual situation which confronted Barrington J. in Foreman - v- Mowlds but not to that before the Supreme Court in Sauerzweig -v- Feeney. Common sense and the law do not always coincide, but, in so far as they may be said to have done so in Barrington J.'s affirmative answer to the first question posed in Foreman -v- Mowlds subsequent courts should be loath to separate them simply on the basis of the writing/no writing dichotomy with regard to periodic tenancies. •

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