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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Byrne v. M50 Motors Ltd. [2001] IEHC 196 (1 November 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/196.html Cite as: [2001] IEHC 196, [2003] 1 ILRM 275

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O'Byrne v. M50 Motors Ltd. [2001] IEHC 196 (1 November 2001)

THE HIGH COURT

Record No. 2001 No 140CA.

Between:

HARRY O'BYRNE

Applicant

And

M50 MOTORS LIMITED.

Respondent.

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 1st day of November 2001.

1.      The applicant is a tenant of the respondent in the premises of Oatlands House, Casteknock, County Dublin and also further premises known as 'The Mews' at Oatlands. The agreed factual position is that the applicant has carried on a business in the said premises and on that basis he claims to be entitled to a new tenancy from the respondent in respect of each of these premises under the terms of the Landlord and Tenant (Amendment) Act, 1980.

2.      It has been indicated that Oatlands House is a substantial period residence and that the same has been listed under the Development Plan for the area.

3.      The tenancy agreement in respect of Oatlands House in the instant case is dated 21st July 1988 and was made between the Knockmaroon Estate Company of the one part and the applicant of the other part. This tenancy determined by effluxion of time on the 30th March, 1989. The tenancy agreement in respect of The Mews was dated 4th August, 1989 and it appears that it determined on the 3rd August, 1990. The applicant held over under the terms of these agreements up to the date of the expiry of notices to quit served on him by the respondent. It was an express term of the tenancy agreements in relation to Oatlands House that the tenant would use same "as a private residence only for his own use". It is agreed that the subject premises were in fact used by the tenant in part for the purpose of carrying on a business there.

4.      Section 13 of the Landlord and Tenant (Amendment) Act, 1980 provides, inter alia, as follows:

"13.- (1) This Part applies to a tenement at any time if -

(a) the tenement was, during the whole of the period of three years ending at that time, continuously in the occupation of the person who was the tenant immediately before that time or of his predecessors in title and bona fide used wholly or partly for the purpose of carrying on a business."

5.      It is agreed that the respondent was not aware of the business user of the subject premises at any time prior to seeking possession herein. The issue is whether it can be said that the same was bona fide used partly for the purposes of carrying on a business.

6.      On behalf of the applicant it is submitted that insofar as the premises was used partly for the purpose of carrying on a business that the same must be considered to have been bona fide used for such purpose and that the term "bona fide used" relates to the genuine nature of the business being carried on and that the same is not in any way qualified that the user may have been in express contravention of a covenant in the letting agreement.

7.      In this regard counsel for the applicant has referred this court to the decision of O'Hanlon J in Plant v. Oakes [1991] 1 I.R. 185 where he held that the business user in question in that case was bona fide as it was genuine and not merely embarked upon as a subterfuge for the purpose of building up a "business equity" as a basis for a claim for a new lease under the Act.

8.      In that particular case the applicant claimed that the dining room in the house was set aside as an office as a necessary adjunct to a garage business carried on by him in the garage premises at the foot of the avenue leading to the Dublin Road at the premises of Kilcannon House, Enniscorthy, County Wexford.

9.      O'Hanlon J indicated at p. 187 that having heard the evidence in the case he was "driven to the conclusion that the house was, in fact, being used partly for the purpose of carrying on the garage business and as a necessary adjunct to the operations carried on in the garage proper, at all relevant times and certainly for a period of three years and upwards prior to the termination of the tenancy."

10.      He then continued as follows:

"With regard to the meaning to be attributed to the phrase "bona fide" in the sub-section I think these words are probably intended to exclude a claim based on purported business user which was not genuine but was merely embarked upon as a subterfuge for the purpose of building up a "business equity" as a basis for a claim to a new lease under the Act of 1980."

11.      Later in his judgment O'Hanlon J stated at p.188:

"A nice question arises as to whether the tenant was under the obligation to apply for a 'change of user' permission before converting part of his residence to business purposes, under the Local Government (Planning and Development) Acts, but the respondent did not seek to rely on this failure in resisting the claim to a new lease, and as I had previously decided in Terry v. Stokes (Unreported, High Court, 13th March, 1986) that I should not allow it to defeat a claim to a new tenancy, I would propose to adhere to that decision in deciding the present case."

12.      On behalf of the respondent it is submitted that as the user in question in the instant case was in breach of an express term of the tenancy agreement and was not acquiesced in by the respondent, who in fact was unaware of the user at any relevant time until after the termination of the subject tenancy, that it cannot be said that the user is bona fide business user. It is submitted that it is inconceivable that the court would grant a tenancy on the basis of a use which the court would have restrained if an application had been made to it in that regard.

13.      As against this it is submitted that the construction contended for by counsel for the respondent could lead to an avoidance of the terms of the Act of 1980. It is submitted that the character of the subject premises is not altered by reference to the particular business being carried on in the instant case. It is submitted that the relevant test is whether the business is genuine and not whether the character of the building has been altered. It is submitted that the business is such that planning permission would not have been required for a change of use.

14.      In conclusion I am satisfied that the applicant has failed to establish a bona fide business user insofar as it was clearly in breach of an express term of the tenancy agreement. I am satisfied that the connotation of bona fide user addressed by O'Hanlon J in Plant v. Oakes (supra) was not intended to be the sole and exclusive connotation of the term and I am satisfied that where the user was knowingly in breach of a tenancy agreement it cannot be said to be bona fide user such as to entitle the applicant to a business tenancy under the Act of 1980. Accordingly, I am satisfied that the decision of the learned Circuit Court judge, appealed against in these proceedings, was correct and I propose to affirm the order made by him refusing the applicant a new tenancy in the premises and further his decision that the respondent is entitled to an order for possession of the said premises and I will so order.