The Gazette 1973

Acquisition of ground rent relating to premises includes relevant right of way. By lease of 29 December 1948, C.I.E. demised to Auto Services Ltd., lands at Adelaide Road, Dublin, for a term of twenty-one years expiring on 31 December 1969. The lease contained a grant of a right of way at all reasonable times as delineated on the map. The interest of the lease was subsequently acquired by the defendants, Hardwicke Ltd., and on 17 February 1964 the lease was assigned to Smiths (Harcourt St.) Ltd., as lessees, who are the plaintiffs in this case. By notice dated 29 September 1969 the plaintiffs informed the defendants of their intention to acquire the fee simple in the lands demised by the lessee with- out reference to the right of way, under Section 3 of the Landlord and Tenant (Ground Rents) Act, 1967. Section 6 of that Act provides that, once notice is given, the parties concerned shall without unreasonable delay take all necessary steps to effect a conveyance free from incumbrances of the fee simple. On 31 October 1969 the solicitors for defendant wrote to solicitors for the plaintiffs stating that defendants were unwilling save under terms to agree to the acqui- sition of the fee simple. The plaintiffs served a Notice of Application upon the County Registrar declaring them to be entitled to the fee simple. At the statutory arbitration, having heard the parties, the County Regis- trar found that the plaintiffs were entitled to acquire the fee simple, and the agreed price was £11,250. At this stage the defendants tried to contend that only the land without the apportenant right of way had been acquired, which would have been of much less value to the plaintiffs, despite the fact that their valuer had negotiated on the basis that the right of way had been included. The award of the County Registrar had been made on 15 December 1969 but it was only on 3 July 1970 that defendant's solicitors clearly indicated that the plaintiffs were not entitled to acquire the fee simple in the right of way, on the grounds (1) that an. incor- poral hereditament could not be acquired under the Act, and (2) that in their notice the plaintiffs had not indicated that they had intended to acquire the right of way. It was contended that Section 3 of the 1967 Act only applied to land. If this contention were correct, no right of way could be leased under the Landlord and Tenant Act 1931 as amended. In the 1967 Act, the word "land" is to be construed in accordance with the Interpretation Act 1937, and therefore must necessarily include incorporal heredita- ments, and accordingly the Act of 1967 does enable a tenant to enlarge into a fee simple his interest in land including a right of way. There was little doubt but that the notice that had been served under Section 4 of the 1967 Act included a description, in which sufficient particulars had been given to identify the property, and the effect of the service of this notice was to give rise to a statutory contract of sale between the vendor and purchasfer. Undoubtedly the purchaser wished to acquire the fee simple in the lands described together with the right appurtenant under the lease and the County Registrar's award fr £11,250 entitles them to do so upon pay- ment of this sum. There was also a discussion about hte pleadings. [Smiths (Harcourt St.) Ltd. v. Hardwicke Ltd.; unre- ported; O'Keeffe P.; 30th July 1971]

Sisters of Charity allowed to build private nursing home in Elm Park. The trustees of the Irish Sisters of Charity have suc- ceeded in their action against the Attorney-General, in which they sought the High Court's permission to apply the net proceeds of the old St. Vincent's Hospital and other property at St. Stephen's Green and Leeson Street towards the building of their new private nursing home at Elm Park, Dublin. A sum of more than £1,250,000 was involved. After a three-day hearing, Mr. Justice Kenny held that the old St. Vincent's Hospital was purchased out of the Order's funds as distinct from money used for maintenance. He said there was no charity known as St. Vincent's Hospital separate from the religious pur- poses of the Order of Charity, and there was no obli- gation on them to use the buildings for the nursing of the sick poor. The buildings, he said, were held on trust for the Order for their charitable purposes and the funds were impressed with the same trust. On the question of the private nursing home, he said he did not have to decide if this was charitable. The question would have arisen if this was a cy-pres appli- cation. Mr. Justice Kenny said that the summons was brought to determine what should be done with the funds and the Court was asked to decide whether the trusts which affected these properties were in favour of the Sisters of Charity or St. Vincent's Hospital. When Mother Mary Aikenhead founded the Order the pur- pose was the sanctification of members by nursing the sick poor. In 1834, No. 56 St. Stephen's Green was purchased with money given by a member of the Order. In the following year it was opened as a hospital and the Sisters lived there. The building was conveyed to members of the Order, and in 1887 No. 57 was bought with the money of Sister Clifford. Mr. Justice Kenny referred to paragraph 12 of the affidavit of the Mother General of the Order in which she stated that the hospital had been purchased "with monies provided by our congregation". This, he said, was corroborated by the 1834 prospectus of the order which stated : "The Institution to be established by the Sisters of Charity". He would declare that the plaintiffs hold the proceeds of the sale of the buildings referred to in the summons on trust for the charitable purposes of the Religious Sisters of Charity in Ireland. How this was to be applied was a matter for the trustees. He allowed both sides their costs out of the funds. [Gleeson v. Attorney-General; The Irish Times, 10th April 1973] The Supreme Court has affirmed the decision of Mr. Justice Pringle, reported in the February Gazette at page 58, in which it was held that the rules for sealing a defendant's blood sample, when he has been given a blood test in a Garda Station to determine the amount of alcohol which appears as a result of this test, must be very strictly complied with. It is understood that this is a test case which will affect many other cases. [Attorney-General (Nagle) v. Hollingsworth; Sup- reme Court; unreported; 2 May 1973] Rules for sealing blood samples with a stopper under the Road Traffic Act not complied with.

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