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GAZETTE
sepTemBER
1986
Periodic Tenancies in Writing
and the Running of Time
by
James C. Brady
Professor of Property and Equity, University College, Dublin
T
he application of the principle of limitation to
actions for the recovery of land has a long juris-
prudential pedigree yet the Irish courts have recently been
confronted with apparently intractable problems to which
the relevant legislation and case law provide no clear
answers.
1
The most recent such problem involved the
question whether when there is a periodic tenancy
in
writing
the tenant can, by possessing the demised premises
without payment of rent for upwards of forty years,
acquire the title of the lessor by adverse possession. Such
a question was posed in
Foreman
-v-
Mowlds
2
but, as
we shall see, Barrington J. in the High Court managed
an adjudication on the facts of the case without answering
that question.
The matter came before Barrington J. by way of a
special summons under s.9 of the Vendor and Purchaser
Act, 1874, and concerned a contract, dated 20 December,
1984, between Mary Mowlds and Kathleen Mowlds, the
vendor, and Robert Walsh, the purchaser in trust, of
certain premises at 39 Lower Stephen St., Dublin 2. The
applicant named in the special summons was one Robert
Foreman for whom the premises were being purchased
in trust by Robert Walsh and he sought answers to the
following questions arising out of the contract of sale.
Firstly, were the statutory declarations of Thomas
Mowlds and Desmond Mowlds, dated 7 November, 1951,
sufficient to prove that the vendors had acquired title to
the lessor's interest in the tenancy agreement, dated 6
April, 1907, between William Lewis and Thomas
Mowlds. The second question which the applicant sought
to have answered was whether where there is a tenancy
from year to year
in writing
the tenant can, by remaining
in occupation and possession of the demised premiss, for
upwards of forty years without payment of rent, acquire
the lessor's title by adverse possession.
The statutory declarations in question revealed that
Thomas Mowlds, the original tenant, had paid the rent
reserved by the tenancy until approximately January,
1922, and thereafter he and his successors in title had
remained in occupation and possession of the demised
premises without paying any rent to the original lessor
William Lewis or his successors in title or to any person
claiming an estate or interest in the premises through the
said William Lewis or otherwise, and no demand for
payment of the rent had been made on Thomas Mowlds
or his successors. The vendors accordingly claimed that
Thomas Mowlds, and they as his successors in title, had
acquired the lessor's interest in the tenancy agreement by
adverse possession.
Objections and Requisitions on Title were raised by and
on behalf of the purchaser who objected to the title
furnished on the ground that there was nothing in the
Statute of Limitations, 1957, or the earlier Statutes of
Limitation, which provided for the running of time in
the case of a periodic tenancy where the tenancy
agreement was
in writing.
The matter came before the
High Court to have the dispute as to the sufficiency of
the statutory declarations resolved with counsel for the
applicant stressing the urgency of a decision to the parties
since the date fixed for completion of the contract had
passed; the court was dealing with a willing purchaser and
a willing vendor. Counsel could find no guidance in the
statutes and authorities which he opened all of which were
silent on the point in question when the court was dealing
with a written tenancy agreement.
1
Counsel for the respondents said that the point was an
open one and referred to
In re Shanahan
4
in which
O'Dalaigh C.J. (
nem. diss.)
in the Supreme Court upheld
the ruling of Teevan J. that
in the circumstances of that
case
mere non payment of rent barred only claims for rent
and did not bar the right of the landlord in reversion on
the determination of the tenancy; there was no adverse
possession of the land but only of the rent charge under
s. 18(4) of the Statute of Limitations, 1957. The report
of
Foreman
-v-
Mowlds
in the Irish Law Times continues
the reference to
In re Shanahan
thus: "O'Dalaigh C.J.
declined an invitation to presume the determination of
the tenancy by reason of the non-payment of the rent.
His Lordship, the Chief Justice stated: 'The relationship
of debtor-creditor/creditor-debtor which existed between
the parties for twenty years terminating in 1962 would,
in my opinion, negative any presumption of the determi-
nation of the tenancy that might otherwise arise from the
non-payment of rent.'
This latter extract from the judgment of O'Dalaigh
C.J. may well be misleading if taken out of context in
so far as it seems to equate the relationship of creditor/
debtor with that of landlord/tenant. The English case
Stagg
-v-
WyatC
was relied on in
In re Shanahan
in
support of the argument advanced for the applicant that
where rent under a tenancy from year to year is not paid
there is a presumption that the tenancy has terminated.
253