Burns v Radcliffe
Jurisdiction | Northern Ireland |
Judgment Date | 09 May 1923 |
Date | 09 May 1923 |
Docket Number | (1922. No. 5164.) |
Court | Court of Appeal (Northern Ireland) |
Appeal. (N. I.)
Landlord and tenant - Recovery of possession - "Dwelling-house" - House used as a temperance hotel - Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. 5, c. 17), sect. 12, sub-s. 2.
Appeal from the judgment of Brown J., sitting without a jury, in an action for the possession of certain premises between the plaintiff, Thomas Robert Burns, and the defendant, May Radcliffe.
By an agreement dated the 22nd August, 1917, Alice Rose Lepper, Geraldine Amelia Lepper, and Ethel Maud Boydell Wright demised to the defendant the premises known as 7 College Square, East, Belfast, for the term of six months from August 1st, 1917, and thereafter from quarter to quarter, and it was agreed that either party might terminate the tenancy by three months' notice in writing, expiring on February 1st, 1918, or any subsequent quarter day, and it was provided that the rent should be £20 per quarter. One of the terms of the agreement was that the defendant should use the premises for the purpose of the business of a temperance hotel only. The defendant carried on the business of a temperance hotel in the premises, two of the rooms being reserved exclusively for her private use as her own separate apartments. The whole estate and interest of the landlords subsequently became vested in the plaintiff. The plaintiff instituted proceedings for recovery of possession of the premises, but the defendant claimed that she was entitled to retain possession on the ground that the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, applied.
It was held by Brown J. that as these premises were occupied by the defendant as her dwelling-house, although the real purpose of the letting was to carry on in them a business, that of a temperance hotel, he was compelled by the decision of the English Court of Appeal in Epsom Grand Stand Association v. Clarke(1)to hold that the defendant was protected by the Act; he therefore gave judgment for the defendant.
The plaintiff appealed to the Court of Appeal of Northern Ireland (2). | 9 May. |
Certain premises, known as 7 College Square, East, in the City of Belfast, were let to the defendant in 1917 for the term of six months from 1st August, 1917, and thereafter from quarter to quarter, at the rent of £20 per quarter, in order that the defendant might carry on the business of a temperance hotel, and were used by the defendant as a temperance hotel.
The defendant, as proprietress of the hotel, resided there. In an action for recovery of possession of the premises, the defendant claimed to be entitled to retain possession on the ground that the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, applied. Brown J. found that the premises were occupied by the defendant as her dwelling-house, although the real purpose of the letting was to carry on in them the business of a temperance hotel. He accordingly, following the decision of the English Court of Appeal in Epsom Grand Stand Association v. Clarke([1919] W.N. 170), held that the defendant was protected by the Act, and gave judgment for the defendant.
Held by the Court of Appeal (Moore and Andrews L.JJ.), affirming the judgment of Brown J., that the premises came within sect. 12, sub-s. 2, of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. 5, c. 17), on the ground that the hotel trading was a business of such a nature that the premises in which it was conducted never lost the character of a dwelling-house.
The premises were let to the defendant that she might carry on the business of a temperance hotel; it was therefore let for business purposes, and is not a "dwelling-house" entitled to the protection of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. We rely on paragraph 5 of the agreement of letting, by which the defendant was required to use the premises for the purpose of the business of a temperance hotel only. The question to be considered was what was the real, main, and substantial purpose of the letting. These premises had not been let as or for the purpose of a "dwelling-house," and there must be a letting for the purpose of a dwelling-house before sect. 12, sub-s. 2 (ii), of the Act applies; and in this case the letting was specifically for a business purpose.
[Waller v. Thomas(3); Colls v. Parnham(4); Epsom Grand Stand Association v. Clarke(1); Callaghan v. Bristowe(5);Greig v. Francis and Campion(6) were referred to.]
The defendant was not bound under the agreement to continue the user of the premises as a temperance hotel, but could have given up the business at any time and retained the premises under the agreement solely as a "dwelling-house." The fact that the premises were used by the defendant to carry on the business of a temperance hotel does not make it the less a"dwelling-house" entitled to the benefits of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. The Court was not to be guided by the dominant purpose for which the letting was made, but by the real substantial use actually made of the premises, which use was in contemplation of both parties at the time the agreement was made. We rely on Waller v. Thomas(3),Colls v. Parnham(4), and Cohen v. Benjamin(7).
Moore L.J. :— |
This action was brought by the plaintiff to recover possession of certain premises known as 7 College Square, East, in the occupation of the defendant...
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