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GAZETTE
N O V E M B E R
1978
(2) The Hall Floor Flat by an
Agreement made the 18 July 1951 to
a Mr. Thornhill who covenanted to
keep the interior of the premises in
the same order repair and condition
as they then were, not take down any
fixtures or fittings whatsoever or to
put up or erect other fixtures or
fittings (electric and gas fittings
excepted). The Landlord covenanted
with Mr. Thornhill, "that the tenant
paying the said rent and performing
and observing the covenants and
conditions hereinbefore contained
may have quiet and peaceable
enjoyment of the said premises".
(3) The Drawing Room Flat by an
Agreement made the 19 February
1962 to a Miss O'Neill who
covenanted to keep the interior of the
premises and the doors, windows and
landlord's fixtures in good an
t enan t ab le order repair and
condition. The Landlord covenanted
with Miss O'Neill, "that the tenant
paying the rent and observing the
covenants and stipulations on the
tenant's part herein contained shall
during the tenancy quietly enjoy the
d em i s ed p r em i s es w i t h o ut
interruption by the landlord or any
person claiming under or in trust for
him.
(4)The Top Flat by an Agreement
made the 15 October 1955 to a Miss
Whelan who covenanted to permit
the landlord on giving due notice at
all reasonable times during the
tenancy to enter the said flat for the
purpose of inspecting the condition
and state of repair thereof, not to put
up any fixtures or fittings whatsoever
(electrical and gas light fittings,
cookers, heaters and stoves
excepted), to keep and maintain the
ulterior of the said flat in good and
tenantable order, repair and
condition during the tenancy,
reasonable wear and tear excepted.
There was no covenant by the
Landlord for quiet and peaceable
possession.
The Defendant Landlord had
bought the premises in 1971. On or
about the 3 January 1978 he got a
letter from Miss Lynch sending him
the rent less the rates, although the
legislation dealing with the effect of
decision to abolish rates on private
residences had not become law. He
decided he would apply the strict
letter of the law to all of the tenants
and on the 5 January 1978 he gave
notice that he would call to inspect
the properties on the 7 January
1978. When he arrived on that day
Mr. O'Neill was the only person he
found in. He had no key to the main
hall door and decided to break in. He
forced open the hall door and forced
three letter boxes which had been
attached thereto and made them
unuseable. He did not know that the
previous owner had carried out
reconstruction on the hall floor flat
and he tried to enter it by force. He
did considerable damage to the door
and the surround and he also
damaged the stud partition wall at the
side. He found the hall door of Miss
Whelan's flat in position and because
he thought that consent had not been
given to its installation he removed
the door and left it standing at the
landing.
On 9 January 1978 the Defendant
made a number of telephone calls
from a public call box to Miss
Whelan's premises. In each of them
he telephoned her and when she lifted
the speaker he said nothing. All she
heard was a man breathing. On the 9
January 1978 he returned again to
the premises and Miss Lynch, who
was terrified that her flat was going to
be broken into, telephoned the
Gardai. When they came the
Defendant maintained that he was
entitled to do what he had done. He
came again on the 11 January 1978
accompanied by a workman with the
intention of restoring the premises to
the condition they had been in beofre
they were let, and also to fit a new
hall door lock so that he would be
able to get in and to remove the
separate hall door into the hall floor
flat and to remove part at least of the
partition wall.
Held
(High Court, Kenny J.) that
the Defendant had committed an act
of trespass against Mr. Thornhill
when he damaged his door and when
he made a hole in the partition wall.
The removal of Miss Whelan's door
and the interference with the letter
boxes was an act of trespass.
Interference with the letter box was a
sufficient act of physical interference
with the enjoyment of the premises to
sustain an action for breach of
covenant for quiet enjoyment. The
Court further held that as there was no
covenant for quiet enjoyment in Miss
Whelan's agreement and as she was in
arrears with her rent the covenant
implied by Section 41 of the Landlord
& Tenant (Ireland) Act 1960 would
not apply.
The Court, referring to Drone v.
Evangelou [1978] 2 All E.R. 437,
awarded aggravated damages to Miss
Whelan, Miss Lynch and Mr.
Thornhill for trespass, such damages
to include any to which Mr. Thornhill
and Miss Whelan were entitled for
breach of covenant for quiet
enjoyment. Mr. O'Neill and the other
three plaintiffs were entitled to 'quia
timet' injunctions against the
Defendant.
Held further,
with reference to the
counterclaims by the Defendant for
damages for breach of the covenants
to repair, that all the breaches of
covenant alleged against Miss
Whelan were within the exception of
reasonable wear and tear. The Court
further held that part of the claim
against Mr. Thornhill related to the
taking out of the partition wall and
that this was not a breach by him and
the rest of the claim failed because of
failure to establish whether a crack
complained of was there when the
tenancy agreement was made. The
Court further held that the claim
against Miss Lynch succeeded even
though there was no damage to the
reversion because Section 55 of the
Landlord & Tenant Act 1931 was
confined to covenants contained in a
lease and awarded £25 damages to
the Defendant on that counter-claim.
The Court further held, referring to
Lister v. Lane [1893] 2Q.B.D. 212
Lurcott v. Wakeley and Wheler
[1911] 1 K.B. 905 and Groome v.
Fodhla Printing Company [1943]
I.R. 380, that the claim against Mr.
O'Neill failed because the defects
were caused by a structural defect,
the absence of a damp proof course
and of provision for ventilation of the
area between the floor and the sub
floor, which was present in the
premises when they were let.
The Defendant Landlord had
further counterclaimed that the
tenants had installed fixtures or
fittings in the flats without the
consent in writing of the person who
was at the time of the installation the
Landlord. The Court held that
telephones were not fixtures or
fittings because they can never
become the property of the Landlord.
The Court further held that T.V.
aerials were fixtures and that the
Defendant was entitled to insist on
the removal of those belonging to
Miss Whelan and Miss Lynch. Costs
only awarded to PlaintifTs.
Nora Whelan, William Thornhill,
Pierce O'Neill & Joan Lynch v.
Patrick Madigan — The High Court
(per Kenny J.) — 18 July, 1978 —
unreported.