(Court of Appeal – Ireland) The court affirmed the decision in the King’s Bench.
Cherry LCJ said: ‘The law is, I think, well settled that where a lessee of demised premises assigns portion of these premises to a stranger, the assignee is liable to the lessor upon the covenants contained in the lease only in so far as those covenants affect the lands in his possession; and, as regards rent, only for an apportioned part of the rent properly chargeable in respect of the land actually vested in him.’ he explained this conclusion, saying: ‘the liability of an assignee to pay the rent, which the original lessee has covenanted to pay, arises, not from privity of contract, but from privity of estate. It is not because the lessee has entered into the covenant with the lessor, but because he has vested in him the lands which are charged with the rent, that the assignee becomes liable. The covenant to pay the rent, in addition to the personal liability which it imposes upon the lessee who enters into it, also affixes upon the land itself a liability to pay.’
Kenny J said: ‘it will be found that throughout [previous cases] the principle was recognized that, in order to free the assignee of part of the lands from payment of the entire rent, he must hold the part in physical severalty. When he does so there is no privity of estate, as between him and the reversioner, in the entire of the lands . . The determination of the assignee’s liability depends on privity of estate, and I am unable to draw a distinction between a case where the act of severance is that of the covenantor and a case where the severance had taken place before the covenant was entered into. In neither case is there full privity of estate, and therefore, there is no liability on the part of the assignee for the whole rent.’
Judges:
Cherry LCJ, Kenny J
Citations:
Unreported, 1914
Jurisdiction:
England and Wales
Citing:
Appeal from – Dooner v Odlum 1914
(Kings Bench Division – Ireland) Dodd J said: ‘The rent, according to the authorities I have cited, is divisible. There is absolutely no evidence and no presumption upon which to found an inference that she holds an undivided share in the lands . .
Cited by:
Considered – United Dairies Ltd v Public Trustee 1922
Greer J discussed the effect in law of the division and assignment of a tenanted property: ‘Where the leased property has been physically divided amongst two or more assignees it is clear that the obligations of the lease, so far as they affect the . .
Cited – Smith and Another v Jafton Properties Ltd CA 2-Nov-2011
The landlord challenged the right of the tenants to acquire the freehold. Lessees had been subdivided the apartments and then, without the landlord’s consent, assigned them. The new arrangement had increased the number of qualifying tenancies so as . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 08 May 2022; Ref: scu.448992