The Gazette 1958-61

MR. SEAN O'hUADHAiGH, Solicitor, died on the 2ist January, 1959, at a Dublin hospital. Mr. O'hUadhaigh served his apprenticeship with the late Mr. James Moran, z Inns Quay, Dublin, was admitted in Trinity Sittings, 1915 and practised at 51 Dawson Street, Dublin as senior partner in the firm of Messrs. Scan O'hUadhaigh & Son. He was a member of the Council of the Society from 1933 until the date of his death, was Vice- President for the year 1936-37 and President for the year 1947-48. DECISIONS OF PROFESSIONAL INTEREST In an action for forfeiture of a lease on the ground that there was a breach of covenant that the premises were not to be used for lodging or dwelling., it was held that the defendant was in breach of covenant in using the premises for residential purposes. In 1941 the defendant became the tenant of certain premises comprising a ground floor shop and basement described as a lock-up shop, for a term of three years during which he was allowed by the landlords (the plaintiffs) to sleep in an office behind the shop. By a lease dated 5th April, 1944, the plaintiffs let the premises to the defendant for a term of three years from Lady Day, 1944, the defendant covenanting not to use the premises except as a shop for his business of an antique dealer. The defendant continued to carry on business there and to sleep behind the shop and during this period he fitted up the basement rooms for residential purposes. The plaintiffs knew that the defendant slept on the premises from time to time but did not know that the property was his residence. In January 1947, the defendant asked for a new lease and in May the plaintiffs' solicitors sent a draft, clause 2 (9) of which contained a covenant by the lessee : " To use the demised premises as and for showrooms, workrooms and offices only and not to use exercise or carry on (certain specified trades and businesses) . . . and not to permit or suffer the demised premises or any part thereof to be used as a place for lodging dwelling, or sleeping." On zyth October, 1947, the defendant's solicitors returned the draft, having struck out the last part of clause 2 (9), and enclosed a letter saying that the defendant had been sleeping on the premises for some time. There followed correspondence between the solicitors. Meanwhile the plaintiffs' agent told the defendant orally that if he signed the lease the plaintiffs would make no objection to his continuing to reside there; as a result of that the defendant was willing to complete. On loth February, 1948, the lease and counterpart were exchanged, the lease omitting the words which had been struck out from

clause 2 (9) of the draft by the defendant's solicitors. After the execution of the lease the defendant con tinued to reside and carry on business on the premises. In May, 1956, the defendant asked for a new lease and the plaintiffs' managing director having visited the premises and learned that the defendant was living there wrote giving the defend ant notice to quit. In an action for forfeiture of the lease on the ground of breach of covenant, the defendant denied that he was in breach, and alleged, alternatively, that the plaintiffs had waived the covenant or, alter natively, were stopped from relying on it. He also counterclaimed for rectification of the lease and relief against forfeiture :— Held by Harman J., (i) that on the question of construction of the covenant it was not permissible for the court to look into the past history of the matter or to rely on the fact that the defendant had been living on the premises to the plaintiffs' know ledge ; nor could the fact be called in aid that-express words of prohibition as to residence had appeared in the draft but were not in the lease as executed, none of these matters being surrounding circum stances which could be called in aid to construe the language used. (2) That the nature of the property, however, was a matter to be taken into consideration, and the fact that these particular premises were not suitable for a dwelling-house, taken with the fact of a covenant to use them for showrooms, workrooms and offices only, clearly showed that the defendant was in breach of covenant in using the premises for residential purposes. (3) That the fact that the plaintiffs knew that the defendant was using the premises to sleep in and were prepared to allow that did not amount to a release by them of the covenant contained in the lease. (4) That, the defendant having signed the lease because of the promise of the plaintiffs' agent, was entitled to rely on that promise so long as he was in occupation of the shop and the action would be dismissed. (City and Westminster Properties (1934) Ltd. v. Mudd. (1958) 3 W.L.R. 312). (a) Rankers should advise on all financial matters and they must advise with reasonable care and skill, or they will be liable for negligence. (b) Solicitors should not merely disclose all relevant documents which a client has in his possession in an affidavit of documents ; but they should also carefully go through the documents to make sure that no relevant documents have been omitted. 79