Consultation Paper on the General Law of the Landlord and Tenant

management of the said Railway arch (which is an integralpart of the station and the railway undertaking andnecessarily and essentially required in connection with theoperation thereof) should use the airspace of the saidRailway arch to good purpose and not allow same to remainidle without profit or return.”An illustration of the uncertainty which has now been introduced intothe law is the contrasting approach of the courts in the two cases.1.29 In the Kenny Homes case Costello P took the view that theprovisions of the agreements “could not have been in clearer terms”as indicating an intention on the part of the parties not to create atenancy and, notwithstanding the long period of occupation of thepremises, ruled that the occupiers did not have one. His decision wasupheld by the Supreme Court, in which Lynch J, giving the judgmentof the Court, described the agreements as “crystal” clear. On theother hand, in the Smith case Peart J 124 ruled that a tenancy had beencreated, notwithstanding his concluding remarks after a review of theevidence:-“I have set out the evidence in some detail from my notesfor the purpose of demonstrating that there is no disputewhatsoever on the facts that the agreement entered intobetween the parties was known to be, and accepted by theapplicant to be, a licence agreement and that it was notintended that any tenancy rights should arise. It is clearfrom the evidence and from the documents produced inevidence that this is the case. In fact there is no dispute onthe facts. What has to be decided is, in the main, a legalissue.”Peart J also recorded that the occupier of the shop was an experiencedbusiness man who had engaged his own solicitors firm to negotiatethe terms of the agreement on his behalf. He made it clear in hisevidence that he had always understood that all he was getting was alicence. Indeed, when later during the course of his occupation he124A curious feature of Peart J’s judgment is that, although reference is madeto earlier Irish cases and English cases like Street v Mountford, no mentionis made of the Kenny Homes case (notwithstanding its status as a decisionof the Supreme Court).28