266 / 330
GAZETTE
sepTemBER
1986
the tenant had paid no rent since 1950 but, about 1956,
there had been negotiations for the purchase of the
landlord's interest by the Defendant but these negotia-
tions came to nothing. The Defendant attempted to pay
the rent in 1956 but was dissuaded from doing so by the
landlord's solicitor on the ground that negotiations for
the purchase by him of the landlord's interest were still
pending. While the tenant thus paid no rent since 1950
the only steps taken by the landlord with regard to the
recovery of rent were three letters written by his solicitor
in August 1977, August 1978 and February 1981
requesting payment of the rent. The tenant had paid the
ground rent and rates since 1960.
The Plaintiff, having served a notice to quit determin-
ing the weekly tenancy, brought a civil process in the
District Court for overholding and got a decree for
possession. The Defendant appealed against that decree
and it was argued on his behalf before Judge Smith in
the Dublin Circuit Court that since he had not paid any
rent since 1950, and had not acknowledged the Plaintiff's
title since then, he had acquired the Plaintiff's title by
adverse possession. Judge Smith stated a case under s. 16
of the Court of Justice Act, 1947, requiring the Supreme
Court to rule on the validity of the submission.
Henchy J. who delivered the judgment
(nem. diss.)
of
the Supreme Court considered s. 17(2) of the Statute of
Limitations, 1957, which is in the following terms:
(a) A tenancy from year to year or other period,
without a lease in writing shall, for the purposes of
this Act, be deemed to be determined at the
expiration of the first term or other period.
(b) The right of action of a person entitled to land,
subject to a tenancy from year to year or other
period, without a lease in writing, shall be deemed
to have accrued at the date of the determination of
the tenancy, unless any rent or other periodic
payment has subsequently been received in respect
of the tenancy, in which case the right of action shall
be deemed to have accrued on the date of the last
receipt of rent or other payment.
Henchy J. pointed out that the case before him was
not one of a tenancy from year to year but a tenancy from
week to week with a lease in writing since the
documentary tenancy from week to week ranked as a
lease for the purpose of the Statute of Limitations; there
was therefore no artificial determination of the tenancy
under s. 17. This rather left the defendant in the same
position as the tourist who inquired of a native in Sneem,
Co. Kerry, which was the correct road to Dublin to be
met with the reply; "If I was going to Dublin I wouldn't
start from here."
Counsel for the Defendant sought to circumvent the
difficulty posed by the fact that the tenancy agreement
was in writing by submitting that in the circumstances
of the instant case the tenancy should be deemed to have
been determined by abandonment for which proposition
he cited
Stagg
-v-
Wyatt.
u
Reliance on the latter case
was to prove no more successful in the instant case than
it had before Barrington J. in
Foreman
-v-
Mowlds.
Henchy J. pointed out that in
Stagg
-v-
Wyatt
there had
been a demise of the disputed premises for 99 years and
the lease having run out in 1808 an implied tenancy from
year to year had then arisen. Rent under the latter tenancy
having last been paid in 1821, and, no rent having
subsequently been paid by any of the persons successively
in possession for the subsequent sixteen years preceding
the action, it was held that failure to demand rent during
that period was evidence on which the termination of the
tenancy could be presumed. Thus, even if it was held that
Stagg
-v-
Wyatt
was correctly decided, it was not in
Henchy J.'s opiniori, authority for the proposition for
which it was cited in the instant case.
Henchy J. went on to point out that although the report
of
Stagg
-v-
Wyatt
does not refer to the then relevant
Statute of Limitations, the Real Property Limitation Act,
1833,
15
it was clear that the facts were covered by s.8 of
that Act which is the equivalent of s. 17 of the 1957 Act;
the position was quite different however when, as in the
instant case, the tenancy in question was a documentary
one. Henchy J. did not let the matter rest there but went
on: "Moreover, the defendant is the original tenant
under the documentary tenancy from week to week
entered into in 1942. He paid his rent under the tenancy
up to 1950 and would have resumed payment in 1956 were
it not that he was then negotiating the purchase of the
landlord's interest. The landlord showed that he had not
determined or abandoned the tenancy when he made for-
mal demands in writing for the payment of the rent in
August 1977, in August 1978 and again in February 1981.
To none of these demands did the defendant reply that
the tenancy had no application to him."
16
Henchy J.
felt that the only proper conclusion in those circumstances
was that the tenancy was not determined until the ser-
vice of the notice to quit in the present proceedings and
what the Plaintiff, as landlord, had lost was not her title
to the property but her right to recover rent after the ex-
piration of six years from the date when the arrears
became due.
17
The Supreme Court decision in
Sauerzweig
-v-
Feeney
is more, the present writer believes, than a simple affirma-
tion of the principle that time cannot run in favour of
a tenant who holds a written tenancy. Henchy J.'s
consideration of the facts led inexorably to a decision in
the Plaintiff's favour and, it is at least arguable, that on-
the facts that decision is not necessarily inconsistent with
Barrington J.'s finding in
Foreman
-v-
Mowlds.
In
Sauerzweig
-v-
Feeney
the tenant had acknowledged the
landlord's title in 1956
18
and the landlord was claiming
rent as late as 1981 whereas in
Foreman
-v-
Mowlds
rent
had neither been paid or claimed for upwards of fifty
years. If one were to explain to a lay person the rationale
of the principle of limitation as it applies to action for
the recovery of land, i.e. the quieting of title and the ex-
tinction of stale claims, he might well be forgiven for
assuming that the principle would apply to the factual
situation which confronted Barrington J. in
Foreman -
v-
Mowlds
but not to that before the Supreme Court in
Sauerzweig
-v-
Feeney.
Common sense and the law do not always coincide,
but, in so far as they may be said to have done so in
Barrington J.'s affirmative answer to the first question
posed in
Foreman
-v-
Mowlds
subsequent courts should
be loath to separate them simply on the basis of the
writing/no writing dichotomy with regard to periodic
tenancies. •
256