The Gazette 1987

JANUARY/FEBRUARY 1 9 87

GAZETTE

Smirk v Lyndale Developments Ltd. Although the doctrine is of some antiquity, it is useful to outline the doctrine's application in greater detail by reference to a relatively recent decision of Pennycuick V.C. in Smirk v Lyndale Developments Ltd. 8 , particularly as that case treats of a number of previous decisions in this area. In Smirk the plaintiff tenant occupied two plots of land which lay immediately beyond a path running behind a house held by him under a service tenancy from British Railways which also owned those two plots. The plots were used by the plaintiff as a flower and vegetable garden — and the trial judge was to hold — one of those plots (the blue plot) had been occupied by the plaintiff for more than twelve years. Some time after having bought the freehold in the property comprised in the plain- tiff's service tenancy together with the two plots of land behind it from British Railways, the defendants commenced a building development on the two plots. The plaintiff immediately sought a declaration that he had a good possessory title to the freehold in those two proper- ties or, alternatively, that he held them as an extension of the locus of his tenancy in the house to which they were adjacent. In relation to the plot which Pen- nycuick V.C. held the plaintiff to have been in effective occupation for 12 years, (the blue plot) the following dicta of Parke B. in Kingsmill v Millard 8 were drawn upon by his Lordship as correctly reflecting the position in law of the plaintiff vis á vis the defendant as regards that property:- " I t is laid down in all cases — whether the enclosed land is part of the waste, or belongs to the landlord or a third party — that the presumption is, that the tenant has enclosed it for the benefit of his landlord, unless he has done some act disclaiming the landlord's title. I am disposed to discard the definition, that the encroachment is made " f or the benefit of the landlord", and to adopt that of Lord Campbell, viz, that the encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant made it for his

own benefit." Therefore, the plaintiff's claim that he was entitled to the freehold in the blue plot failed by virtue of the presumption. Pennycuick V.C.'s analysis of the authorities did not stop there, however, — he noted the dif- ference in judicial opinion on the question of the doctrine's applica- tion to land which wasn't waste. The first instance decision in Tabor v Godfrey 10 and the data of Parke B. (supra) suggested the doctrine to apply irrespective of whether the land encroached upon constituted was te or not whereas the judgements of Lord Russell C.J. and Willes J. in Lord Hastings v Sadd/er u emphatically demurred to such a proposition. It was the former view which Pennycuick V.C. indicated his preference for, but since the lands involved in the case before him themselves appear to have been waste land, it might be said that his Lordship's remarks on this topic were obiter. The dearth of Irish authority on the whole area of encroachments by tenants provides no definite answer to the question either. In the old case of Irwin v Boyse Ua a view contrary to that expressed by Pennycuick V.C. is attributed to Ball J. but the few expressions of opinion thereafter by Irish Bench on this doctrine 12 leave to inference whether the broader view is to be regarded as correct or not. Perhaps, the most satisfactory fashion in which this issue could be resolved by a Court now if it were required to deal with this problem would be for it to look at the rat- ionale behind the presumption and consider whether that rationale holds good when applied to the situation of encroachments by tenants on non-waste land. Unfor- tunately, examination of what is the leading exposition of the doc- trine's fundamental premise — the judgement of Willes J. in Whitmore v Humphries 13 — highlights the con f us i on wh i ch surrounds precisely what legal principles the courts are invoking where an en- croachment by a tenant on lands belonging to his landlord fails to be considered. Rationale of the Doctrine Willes J. set forth his understan- ding of the doctrine's rationale as follows:-

"The rule is based upon the obligation of the tenant to pro- tect his landlord's rights, and to deliver up the subject of his tenancy in the same condition, fair wear and tear excepted, as that in which he enjoyed it. The result is to avoid questions which would otherwise fre- quently arise as to the property in land, and to exclude persons who have come in as tenants, and who are likely to encroach, from raising such questions." 14 There is often great temptation and opportunity afforded to the tenant to take in adjoining land, which may or may not be his landlord's and it is considered more conve- nient and more in accordance with the rights of property that the te- nant who has availed himself of the opportunity afforded him by his tenancy to make encroachments should be presumed to have in- tended to make them for the benefit of the reversioner, except under circumstances pointing to an intention to take the land for his own benefit exclusively. These dicta when considered in the light of their application to the dispute before the Court in that case demonstrate how sight has been lost in some later judgements of the fact that Whitmore and other decisions have nothing to do with the operation of the Statute of Limitations but are in fact cases negativing the assertion made in them that the Statute over ran against the landlord in respect of the encroachments over the landlord's land. In Whitmore, for example, the te- nant had enclosed, with the assent of the landlord, a piece of the landlord's waste land adjoining the tenant's premises. Possession of the waste by the defendant (who was treated as successor-in-title to the tenant) was proved for 21 years and on the expiration of the lease of the demised premises the plaintiff lessor sought possession of both properties. It was contended on behalf of the defendant that the landlord's oral assent to the enclosure of the was te by the de f endan t 's predecessor-in-title gave rise to a tenancy-at-will which must be deemed to have determined one year from its commencement by virtue of the then s t a t u t ory

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