The Fate of Harry Clarke’s Stained-glass Windows, by Louise Wright published in the Conveyancing and Property Law Journal – (Summer 2023) Vol. 28 (2), 22, Thomson Reuters, Round Hall.

The article ‘The Fate of Harry Clarke’s Stained-glass Windows’ was published in the Conveyancing and Property Law Journal – (Summer 2023) Vol. 28(2), 22, Thomson Reuters, Round Hall. The article is available on www.westlaw.ie  or alternatively in print via email TLRUKI.orders@thomsonreuters.com

The article discusses the High Court decision in the very recent case of RGRE Grafton Limited v. Bewley’s Café Grafton Street Limited and Bewley’s Limited [2023] IEHC 25 (Bewley Case).

Bewley Case

This case involved a dispute over the ownership of six Harry Clarke stained-glass windows forming part of Bewley’s Café (Café), Grafton Street, Dublin 2. Four of the windows are known as the “Four Orders” (Four Orders) windows and the two remaining windows are described as the “Swan Yard” (Swan Yard) windows, overlooking Swan Yard (collectively Windows).  RGRE Grafton Limited (Landlord) took the case against Bewley’s Café Grafton Street Limited (Tenant) and Bewley’s Limited (Subsidiary) (collectively Defendants).  The Landlord claimed that the Windows formed part and parcel of the Café. The Defendants claimed that the Windows were works of art which are decorative and ornamental; that they never functioned as windows but were merely installed inside and parallel to clear glass windows of the same dimensions, and that it was solely the latter that functioned as windows in the external skin of the Café. Additionally, the Tenant maintained at all material times that the Windows had been in its ownership, that they were tenant fixtures and accordingly, could not be owned by the Landlord. On the 12^th December, 2020, the Tenant sought to transfer inter alia, its interest in the Windows to the Subsidiary by way of an asset transfer and licence agreement, which the Subsidiary then licensed to the Tenant for the continued use of the Windows in the Café.

Judgment

McDonald J. held that the Four Orders windows formed part and parcel of the Café and belonged to the Landlord, and that the Landlord was entitled to an order setting aside the purported transfer of the said windows from the Tenant to the Subsidiary. His conclusion was reached based on the fact that: (i) the 1998 video (a video taken in 1998 of the refurbishment works carried out to the Café which showed the removal of the sashes holding the Windows) clearly demonstrated that the Four Orders windows were flush against the bullnose brick facade, and that there was no space between the facade and window frame to accommodate a second layer of fenestration; (ii) there was no evidence provided to show that the Four Orders windows were not capable as operating as windows for the purposes of weathering the interior of the Café (there was not sufficient evidence to support the fact that weathering from the elements did not occur) and to allow light and ventilation to enter the Café; (iii) there was no evidence to support the claim that the Four Orders windows were enclosed in some form of external boxing, the 1946 drawings showed unimpeded window openings; (iv) the Four Orders windows were designed to permit ventilation, made up of hopper sashes to open inwards to admit the air; and (v) there were no security risks, the windows overlooked an enclosed yard.

However, McDonald J. held that the Landlord failed to prove its claim in relation to the Swan Yard windows reaching the conclusion that the said windows were the Tenant’s fixtures capable of being removed from the Café (subject to compliance with section 17 of Deasy’s Act) due to the following reasons: (i) the fact that the Swan Yard windows did not form part of the external shell of the Café, made it difficult to ascertain that the said windows were installed for the purposes of improving the Landlord’s interest in the Café; (ii) he considered that the Swan Yard windows were installed to “further the interests of the tenant in the operation of its café business”; and (iii) when the Swan Yard windows were relocated to the internal wall, “They continued to have an ornamental purpose at that time which could only be said to assist the tenant’s café business.”

Takeaways

It is apparent from reviewing the case that it was complicated due to the scarcity of information in relation to the installation of the Windows, a lack of surviving evidence and the relocation of the Swan Yard windows. It highlights the importance of recording a landlord’s and tenant’s fixtures and fittings in the lease documentation, in order to avoid disputes and possible litigation. A lease could specify the landlord’s fixtures and fittings and then itemise those that are to remain the property of the landlord. Equally, where a tenant intends to operate its trade, business or manufacture then the fixtures and fittings that it may wish to install should be itemised, confirming that they are owned by the tenant, and that it has the right to remove them upon the expiration or sooner determination of the lease.

Additionally, it is important for a purchasing entity when engaging the services of an architect/engineer to carry out a survey of a commercial premises (with tenants in-situ), that the report includes the identification of any item(s) that could fall within a “Bewley” category (uncertain whether an item is a landlord’s or tenant’s fixture or if it forms part of the “skin” of the premises). Therefore, any uncertainty in relation to the category of an item can be agreed and closed out between the parties, prior to entering into the legal documentation.

This Moran & Ryan LLP material is not intended to provide, and does not constitute or comprise, legal advice on any particular matter and is provided for general information purposes only. You should not act or refrain from acting on the basis of any information contained in this material, without seeking appropriate legal or other professional advice.

Louise Wright
Partner
T: + 353 1 5450374
E: lwright@moranryan.com