The Gazette 1986

GAZETTE

sepTemBER

1986

Having considered

Stagg

-v-

Wyatt

O'Dalaigh C.J. went

on: "If I am to accept

Stagg

-v-

Wyatt

as good law the

appellant is nevertheless still remote from having

established a statutory title. There is here a circumstance

which clearly distinguishes this case from

Stagg

-v-

Wyatt.

Here the Appellant deposes that in 1942 her landlord was

indebted to her in the sum of £12 odd for shop goods.

He was unable to discharge this debt but she did not

institute proceedings to recover what was due. On the

basis of the case which the Appellant puts forward she

was herself then £2 in arrears in respect of rent (4 years

rent, 1938-42, at 10/- per annum). Both the Appellant

and the landlord abstained from enforcing their respective

claims. Twenty years would have had to run (1942-1962)

before the Appellant had recouped herself the net amount

(£12 minus £2 arrears of rent) due to her for shop goods

out of the rent falling due half yearly at 10/- per annum.

Mr. Justice Teevan was not asked to presume the

determination of the tenancy by reason of the non-

payment of the rent. "Counsel's submission, I take it,

is, in effect, that this Court should now do so. I would

decline to do so. 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 determination of the

tenancy that might otherwise arise from the non-payment

of rent."

The use of the terminology of debtor-

creditor/creditor by the Chief Justice is thus referrable

to the purported agreement that the debt owed by the

Respondent for shop goods was to be discharged by

remission of the rent owed by the applicant.

O'Dalaigh C.J, was of the opinion that Teevan J.

should not have resolved the conflict of evidence between

the parties regarding this agreement without hearing oral

evidence but the Chief Justice went on to say that he

rather doubted if Teevan J. would have done so "if he

had not been satisfied that the respondent, Mrs.

Shanahan, was in any event entitled to succeed on a point

of law."

That point of law had been stated by Teevan

J. thus: "Here we have a yearly tenancy, and while it

subsists, the landlord is not entitled to possession and,

therefore, cannot be barred by the mere possession of his

tenant. This is so even if rent has not been paid for more

than twelve years. In such circumstances all that is barred

is the recovery of the rent for more than six years."

Teevan J. was asserting the orthodox view that a lessor's

reversionary interest remains unaffected until the tenancy

determines since his interest remains non-possessory until

then and it makes no difference that the lease is for a term

certain or creates a periodic tenancy.

Barrington J. said he had formed a view on the facts

but was concerned that he might find himself making law.

Given the state of the authorities referred to by counsel

this latter eventuality seemed well nigh unavoidable if

the court was to reach the conclusion urgently sought by

a willing vendor and a willing purchaser. In the event

Barrington J. addressed only the first question posed by

the Special Indorsement of Claim which was whether or

not the statutory declarations were sufficient to prove that

the vendors had acquired title to the lessor's interest in

the tenancy agreement. The learned judge took the view

that there was clear evidence on the facts put before him

that the tenancy was determined for some time, probably

in 1922, and there was no effort to enforce the landlord's

interest for over fifty years. In these circumstances it

appeared to Barrington J. that the tenant had acquired

the landlord's interest by long term possession and he thus

answered the first question in the affirmative. The learned

judge declined to answer the broader question concerning

the application of the principle of limitation to periodic

tenancies

in writing

since this would necessitate reserving

judgment in circumstances in which the parties required

clarification urgently. Barrington J. did add the rider

invariably resorted to by judges when dealing with hard

cases when he said that the circumstances were "peculiar"

to the case in question.

It could be said of course that the specific question

regarding the sufficiency of the statutory declarations,

and the broader question regarding the running of time

in relation to periodic tenancies in writing are not

separable and an affirmative answer to one implies an

affirmative answer to the other. Be that as it may

Barrington J.'s answer to the first question posed accords

both with common sense and the

raison d'etre

of the

principle of limitation as it applies to actions for the

recovery of land which is the extinction of stale claims

and the quieting of title.

A negative answer would lead

to the remarkable result that however long rent had been

unpaid and the tenant and his successor remained in

possession and exclusive occupation of the demised

premises without acknowledging the title of the landlord,

the landlord and his successors could recover possession

if the tenancy agreement had been

in writing.

Such a state

of affairs could not obtain indefinitely in the case of a

lease for a time certain since at the end of the period fixed

by the lease time might begin to run against the lessor

if the lessee remained in possession without paying rent

or otherwise acknowledging the lessor's title." Thus we

have a curious anomaly that in the case of a lease in

writing for a term certain time may begin to run in favour

of an erstwhile tenant while in the case of a periodic

tenancy time may never so run.

What might fairly be described as Barrington J.'s

common-sense approach echoes that of the old Irish

Court of Appeal to the quite different problem posed by

the facts of

Re Field J

There an unanimous Court of

Appeal reversed O'Connor M.R. and held that a landlord

was not entitled to recover any rent which accrued after

the interest of an assignee of the original tenant had been

extinguished by the Statute of Limitations. The claim for

rent was being taken against the estate of the deceased

assignee and O'Brien C. referred to the singular state of

affairs which would follow the admission of such a claim

viz. that despite the cesser of the assignee's interest with

the effluxion of time, his estate would remain liable

for

ever

for the rent of the tenacy from year to year.

Little obvious support for the Barrington J. approach

can be gleaned from the recent decision of the Supreme

Court in

Sauerzweig

-v-

Feeney.

The Plaintiff in the

latter case claimed possession as the successor in title of

the landlord who had entered into a written contract of

tenancy in 1942 with the Defendant in respect of premises

at 11 George's Avenue, Blackrock, Co. Dublin, under

which the Defendant acquired a tenancy from week to

week at a rent of fifteen shillings a week. The Plaintiff

had acquired the lessor's interest on her father's death

in 1962. The facts which are set out in Henchy J.'s

judgment, and which were not in dispute, disclosed that

254