The Gazette 1979

GAZETTE

JULY-AUGUST 1979

RECENT IRISH CASES

LANDLORD AND TENANT

Breach of covenant sufficient to

sustain

grant

interlocutory

injunction at suit of lessor.

The Plaintiff lessor demised the

Units within a Shopping Centre

owned by it on foot of leases

(generally

standard

format)

prohibiting — (save with the written

consent of the lessor) — (a)

assignment or subletting, or, (b) use

by the lessees other than for the

limited purposes specified in each

instance. It was in order to obtain the

best Returns from their lettings that

the Plaintiff endeavoured to ensure

that there was a good "tenant-mix"

and it controlled the number of shops

of each variety. The user provided on

the demise of the premises, the subject

matter of these proceedings ("the

subject premises"), was that of "a

General Hardware Store". The

lessee's interest under the lease of the

subject premises had been assigned to

the first Defendant (Shalaine Modes)

who carried on therein the business of

a Boutique without objection by the

Plaintiff or anyone else. The Plaintiff

had expressly consented to such

assignment, but not to the change of

user.

The second Defendant (Crinion)

occupied two other Units in the

Centre, one of which was utilised for

the retailing of toys, which business

— recognised as being seasonal

(Christmas time) to a substantial

degree — was also carried on in a

further Unit within the Centre by

another party ("the second toy

retailed'). The second Defendant and

the second toy retailer had, in

previous years, taken temporary

sublettings of Units (including the

Units of the first Defendant) without

the Plaintiffs consent, and, likewise

without consent, had used the same

for the display or sale of toys. No

objection seems to have been taken to

these courses either by the Plaintiff

or any other tenant in the Centre. In

November

1978

the

Sxond

Defendant, without applying for or

obtaining any consent in writing, had

taken a temporary subletting from

the first Defendant of the subject

premises, and had commenced

carrying on therein the business of

selling toys in a manner which had

caused the second toy retailer and

another lessee of the Plaintiff to

object

the

Plaintiff.

The

proceedings had been instituted by

the Plaintiff to restrain the breaches

of covenants by the two Defendants.

Held (per McWilliam J.) that

prima facie there had been a clear

breach of the user Covenant in the

lease of the subject premises and that

the Plaintiff was entitled to rely on

the covenant in the Lease and was

entitled to an interlocutory injunction

to prevent the two Defendants

breaching such Covenant.

The Court did not accept as being

meritorious the following contentions

offered by way of defence viz. (i) that

the

Plaintiff's acquiescence

previous sublettings had lulled the

Defendants into a false sense of

security; (ii) that the Plaintiff on

becoming aware of the breaches did

not move with sufficient alacrity; (iii)

that consent had been given verbally

or impliedly by the Manager of the

Centre; (iv) that ttfe proceedings had

been inspired by a profit motive and

were therefore discreditable.

Shaw v.

Applegate

[1978] 1 All

.R. 123

considered, but not applied, because

underlying circumstances deemed to

be different in that there the

acquiescence of the landlord in a

tenant's breach of a user Covenant

had been of some years' duration.

Green Property Company Limited

Shalaine Modes Limited and Thomas

Crinion

— High

Court

(per

McWilliam J.) — 30 November 1978

— unreported.

LANDLORD AND TENANT

Landlord & Tenant Act 1931 —

Continuity of Tenancy — Contract-

ing Out.

The Respondents (Continental Oil

Company) leased garage premises

and equipment to Mr. L. G. C. ("the

tenant") for three years from the 6

February 1970 by lease of 15

October

1970.

The

tenant

covenanted to yield up the premises

at the end of the lease. Under the

provisions of Sections 19 and 20 of

the Landlord & Tenant Act 1931 the

tenant would not have been entitled

to a new tenancy when the three year

term would expire on the 6 February

1973 because the term would have

"terminated" within the meaning of

Section 19 three months before the 6

February 1973. During negotiations

between

the

tenant

and

the

Respondents, the Respondents stated

that they would give a new lease for

three years from the 12 February

1973 but that the tenant would have

to vacate the premises from the 6

February to the 12 February 1973.

Further negotiations took place to see

if a method could be found by which

the tenant would not acquire a right

to a new tenancy but would not have

to vacate the premises for that period

because the tenant feared that such

vacating would damage the goodwill

of the business which he had built up.

It was finally agreed that the tenant

would be allowed to remain in the

premises as a caretaker only and that

three

year

tenancy

would

commence on the 12 February 1973.

The tenant signed the following

written acknowledgement, which was

dated the 6 February 1973 and was

signed by the tenant on the 5

February 1973:

"I, ' L.G.C. —

hereby

acknowledge that I have been this

day put into the possession of all

that the premises, and equipment

attached thereto, Gatien Service

Station,

Whitechurch

Road,

Rathfamham, Co. Dublin, as

caretaker by and for Continental

Oil Company of Ireland (Conoco)

— and that now I am in

possession of said premises and

equipment solely as such caretaker

of and for Conoco and not under

any contract of tenancy. And I

hereby further acknowledge that I

have undertaken and agree and I

do now hereby undertake and

agree with Conoco to take care of

the said premises and equipment

for him (sic) and to preserve same

from trespass and injury and to

deliver up the possession thereof

to Conoco its successors, his heirs

or assigns, when required so to

do".

Before

signing

this

acknowledgement the tenant knew

that he would not be given a new

tenancy unless he did so sign, and

that the one week interval and the

acknowledgement were required to

prevent him acquiring rights to a new

tenancy and that he was fully advised

by his solicitor before signing the

acknowledgement.

A new lease for three years from

the 12 February 1973 was executed

on the 24 July 1973 and was taken in

the name of the Applicants (Gatien