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GAZETTE
JULY-AUGUST 1979
Motor
Company
Limited)
(a
company formed by the tenant). The
terms of the new lease were substan-
tially similar to those of the lease of
the 15 October 1970. On the 10
July 1975 the Applicants served a
notice of their intention to claim relief
under the 1931 Act and on the 29
March 1976 they served notice of
their intention to apply to the Circuit
Court for a new tenancy. In their
notice they stated that their lease
"terminated" (within the meaning of
Section 19 of the 1931 Act) on the
12 November 1975. The Applicants
succeeded in the Circuit Court and
the Respondents appealed to the
High Court. The Applicants argued
that the tenant had exclusive
possession of the premises from the 6
February to the 12 February 1973
and that he was a tenant during that
week and so had been using the
premises for more than three years
before the 12 November 1975 next.
If that first proposition was wrong
the Applicants submitted that the
Caretaker's Agreement i.e. the written
acknowledgement
dated
the
6
February 1973 was made void by
Section 42 of the 1931 Act.
The High Court stated a case for
the decision of the Supreme Court on
the following questions:
"(l)Did
the
said
Caretaker's
Agreement create a tenancy?
(2) If
the
said
Caretaker's
Agreement did not create a
tenancy, is the same null and
void under the provisions of S.42
of the Landlord and Tenant Act
1931 upon the ground that it
indirectly deprives the applicant
of its right to relief sought in
these Proceedings?"
The Applicants argued that a
person in exclusive possession of land
must be regarded as holding it as a
tenant and that the reality of the
arrangement was the creation of a
tenancy from the 6 February to the
12 February 1973.
The Court found that a person
may be in exclusive possession of
land but not be a tenant and referred
to the cases of
Addiscombe Garden
Estates Ltd. v. Crabbe
[1952] I K.B.
902 and
Shell
Mex
&
BE.
Limited v. Manchester Garages Ltd.
[1971] 1 All E.R. 841. The Court did
not agree that the law in the Republic
of Ireland in this respect was different
from that in England and referred to
Davies v. Hilliard
(1967) 101
I.L.T.R. 50, where the Supreme
Court held that a person who went
into occupation under a Caretaker's
Agreement when terms for a
proposed
tenancy
were
being
negotiated and who had paid rent and
was in exclusive possession did not
hold the property as a tenant but as a
caretaker.
Held (per Kenny J.) on the two
questions as follows:
(1) No. That the tenant was not a
tenant from the 6 February to the 12
February
1973 and that the
Caretaker's Agreement did not create
a tenancy.
(2) No. That a tenant must have
an existing right before a tenant can
rely on Section 42 of the 1931 Act.
The said Section 42 provides that:
"A contract, whether made before
or after the passing of this Act, by
virtue of which a tenant would be
directly or indirectly deprived of
his right to obtain relief under this
Act or any particular such relief
shall be void."
The foundation of the Section is
that there is an existing right to relief
under the 1931 Act which the tenant
has. The Applicants did not use the
premises for the whole of the three
years next before the 12 November
1975 and could not invoke the three
years for which the tenant was
in occupation because neither the
Applicants nor the tenant were in
occupation as tenant between the 6
February and the 12 February 1973.
Even if the Caretaker's Agreement
was made void by Section 42 (which
the Court did not accept) the
Applicants were not entitled because
they had not been in possession for the
necessary three year period within the
meaning of Section 19 of the 1931
Act as at the 6 February 1973.
Gatlen Motor Company Limited v.
Continental Oil Company of Ireland
Limited — Supreme Court (per
Kenny J. with Griffin» and Parke JJ.)
- 6 April, 1979 - unreported.
MALICIOUS INJURY
Jurisdiction of Circuit Court to
Award Compensation for Malicious
Damage to Property where it occurs
outside a "County".
The Applicant was the owner of
two boats which were anchored to
permanent moorings in the sea,
when, as was found by the Circuit
Judge, on the night of the 23 October
1972 they were maliciously set fire to
and destroyed, the Applicant thereby
suffering £10,000 damages. The
moorings were in an inlet of the sea
known as Inch Channel, which is
part of the bay known as Lough
Swilly, on the coast of County
Donegal. The boats were floating
over their moorings and the moor-
ings were located in tidal waters
below the low-tide water mark. The
channel at the point in question is
about one thousand feet wide,
between Fahan Pier on one side and
the low-water mark on the other, and
the
boa ts
were
moored
approximately half-way i.e. about
five hundred feet out from the nearest
low-water mark. The land on both
sides of the channel forms part of
County Donegal and the nearest
point on the boundary between the
Counties of Donegal and Derry is
over one mile distant. It was common
case at the start of the legal argument
that the Applicant would have to
show that the damage took place
within the County of Donegal in
order to succeed. This was an incor-
rect premise on which to proceed for
the reasons that appear later.
The Circuit Court stated a case for
the decision of the Supreme Court on
the following questions:
(1) Was the malicious act committed
within the County of Donegal?
(2) Is the Applicant entitled to
compensation?
In the course of his judgment
Henchy J. stated that the boun-
daries of a County derived from and
were given validity by the ordnance
maps prepared pursuant to the
powers conferred by the Survey
(Ireland) Acts 1825 to 1870, and
having examined the various statutes
and having considered the provisions
of the Survey (Ireland) Acts 1854
and 1857, he formed the view that
land which was washed over by the
tides and not reclaimed from the sea
was not eligible for inclusion within
the boundary of a County. The line
of high tide would therefore be the
County boundary on the sea coast.
This was the difficulty that arose in
the case of
Smyth and Fordham v.
Dun Laoghaire Corporation
and
Dublin County Council
[1960] Ir.
Jur. Rep 45 but in that case the
provisions of Section 685 of the
Merchant Shipping Act 1894 were
not relied on but were relied on in this
case.
In the course of his judgment,